The Dignity of the Human Person in the Philosophy of John Rawls

by Michael Pakaluk

Conference on “The Philosophical Foundations of Human Dignity”, Washington D.C., March 8, 2007.

I am not sure when, or by whom, the listed title for this lecture (“Why an Overlapping
Consensus Regarding Human Dignity is Not Enough”) was decided upon; but I wish to
comment upon it briefly. In an obvious sense, every association marked by ‘self-
government’ has, and requires, some shared understanding among its members of what it
is about, what is essential to it, and what is accidental. But since no two persons, I
suppose, ever think about anything in exactly the same way, this shared understanding
will always be imperfect, with lots of ‘slack’, and so on. Thus, in this plain sense, an
overlapping consensus in political society, as in any association, is enough—as indeed it
is all that we can have. That there is and must be an overlapping consensus in this plain
sense is uncontroversial.
What can be controversial, as regards any association, is what such a consensus
needs to include. This question may be addressed either from the point of view of
stability, as it often is (“Do we have enough of a common understanding that we won’t
have a falling out in the near future?”), or, as Rawls thinks is especially required for
political society, from the point of view of some notion of reciprocity (“Can we fairly ask
everyone to accept this much?”), and these criteria may or may not conflict.1 Rawls’
view, of course, is that in political liberalism these two criteria actually coincide, viz. that
the minimal content of an agreement worked out for political purposes starting from a
consideration of reciprocity ends up being just what is needed for stability—include less,
and one has violations of rights that lead to conflict; include more, and one gets “Wars of
Relgion” or the equivalent.
It is precisely this claim, then, that we need to examine in relation to human
dignity. Does the consensus required by Political Liberalism implicitly capture, or
prescind from, or perhaps even implicitly deny, important notions of human dignity, and,
depending upon what position it takes, does this pose a problem as regards its upholding
justice or its prospects for stability?

The Conception of Human Dignity

To fix ideas, as it were, we need some provisional understanding of human dignity. I

recognize of course that everything that I am about to say on this matter is contestable in
academic philosophy. But we need to begin somewhere: my aim is simply to give in

1
There are surely other criteria, e.g. a shared understanding may be evaluated from the point of view of
some task to be done (“Do we see all that is involved in this project?”). Rawls would regard such a
question as inappropriate for political society, as it is itself a ‘free standing’ endeavor; and various groups
will be advancing different interests and aims within it. Or one might say that what sets apart Rawlsian
Political Liberalism is precisely this focus on just one sort of question that can be asked about a consensus.
 2

outline the ‘structure’ of the conception of human dignity that, I think, has been dominant
on our culture and tradition.2
The phrase ‘human dignity’ (or, if you will, ‘dignity of the human person’) is
typically meant to indicate a complex of three interrelated things.
First, it is meant to indicate some intrinsic worth of a human being, that is, some
way in which human beings are better in kind3 than other things in the natural world.
This is usually explained by reference to powers or capacities that are ‘rational’: the
power to know truth, and the power to will or wish for what is truly good.4 These powers
are held to be rational on the supposition that what one grasps, in knowing the truth or
wishing what is truly good, has rational structure (logos, ratio), and also because in
grasping this rational structure, one has a capacity to give a reason (logos, ratio).5 In
saying that this worth is ‘intrinsic’, we mean that it applies to human beings in virtue of
what they are, not what they have or happen to be. That is to say, a commonsense
Aristotelian metaphysics underlies our use of the term, ‘human dignity’.
This commonsense metaphysics may seem a slight thing, but it carries with it
powerful consequences. (1) As was said, according to this commonsense metaphysics,
human beings constitute a natural kind. Thus, each human being, as belonging to this
natural kind, has worth ‘by nature’, because of what it is, even when the two rational
powers are not developed or when, through disability, they cannot be exercised. The key
question, in determining whether a being has the worth, is the question of whether it
belongs to the natural kind, human being. (2) Also, since to be a member of this natural
kind is not simply to be a mind or a moral personality, but rather to be a ‘rational animal’,
then, as a consequence and in a secondary sense, the human body has dignity as well.
(3) Finally, since it is a general rule about kinds that no member of a kind is more or less
a being of that kind than any other6 (e.g. no horse is more, or less, a horse than any other
horse, but as a horse it is the same), then each human being is equal to any other, as
regards this intrinsic worth. That is, the natural equality of human beings is explained by
their belonging to the same natural kind.7

2
This would be to do ‘moral theory’ in Rawls’ sense, in his APA Presidential Address, “The Independence
of Moral Theory”: “Moral theory is the study of substantive moral conceptions, that is, the study of how the
basic notions of the right, the good, and moral worth may be arranged to form different moral structures”,
Collected Papers (CP), 286.
3
The phrase ‘in kind’ suffices for the moment to import what people want to say when they claim that
human beings are of ‘incommensurably’ or ‘incomparably’ greater worth than other creatures or things.
4
In my view, it is important to include ‘truth’ in these descriptions; but that consideration cannot be
examined now. I regard it as bound up in the notion of ‘will’ understood as ‘rational desire’, that we can
be either right or wrong about what we pursue as good; thus, implicit in the notion of ‘will’ is that there are
things objectively good or not.
5
Human beings, in what they think or are interested in, can be in a position to answer a question directed at
them, ‘Why?’.
6
Cp. Aristotle’s Categories, 5: “Substance, again, does not appear to admit of variation of degree. ... For
instance, one particular substance, 'man', cannot be more or less man either than himself at some other time
or than some other man. One man cannot be more man than another, as that which is white may be more or
less white than some other white object ....”.
7
Cp. Locke’s language: “... there being nothing more evident, than that creatures of the same species and
rank... should also be equal one amongst another” (Second Treatise, sect. 2).
 3

It should perhaps be pointed out that the two rational powers of a human being
may have as their object not simply things, but also other beings who have rational
powers of knowing the truth and wishing the good. The modern philosophical
movement called ‘personalism’ is distinctive for calling attention to this and holding that,
since persons are in important senses ‘prior’ to things, then the rational powers of a
human being should be defined as primarily directed toward persons. This thought, I
believe, has always been implicit in the classical tradition, but personalism gives it
special emphasis and draws attention to some of its important consequences.8
Second, the phrase ‘human dignity’ is meant to indicate that something is due to
human beings in virtue of their intrinsic worth. That is, human beings should be treated
in such a way as is appropriate to the fact that they have intrinsically the two mentioned
rational powers. Now, note two things about what I have just said. (1) I said human
beings should be treated in such a way as is appropriate to the fact that they have
intrinsically the two mentioned powers. That is, if they are treated in such a way as
would be appropriate only if these powers were accidental to them or acquired, then they
would not be treated appropriately. (2) I left it open as to who does the treating. The
reason for this is complicated, but I shall explain it briefly. It is not uncommon, in
philosophical discussions of natural human equality, for the presumption to be adopted
that the only beings who could be in a position to ‘treat human beings appropriately’ are
other human beings, considered as equal members of the same natural kind, and then the
conclusion follows that the only way to treat a human being appropriately is with equality
and reciprocity. Also, one might even come to think that it was the mere possession of
rational powers of knowing and willing, rather than having a shared human nature, which
was the reason for human equality.9 To hold that these additional ideas are bound up
with the notion of human dignity would be unwarranted, as there may be superior rational
beings who are not human (such as God), who we should not presuppose would
appropriately treat us as equals; and furthermore human beings evidently do also stand to
one another in natural relations other than as equal members of the same natural kind
(such as father to child, or elder to youth). What one can say, however, without going
wrong, is that human beings, when they are dealing with other human beings merely as
human beings, appropriately treat one another as equals and with due reciprocity;10 also,
that it would never be appropriate for a human being to treat another human being in such
a way that would be appropriate only on the premise that he was not an equal member of
the same natural kind.
The third thing that is indicated by the phrase, ‘human dignity’, is that human
beings have an origin and goal that is, somehow, divine. I do not say this presently by
way of advocacy, but simply in order to give an account of the concept that is accurate
and faithful to the tradition. There is no time here to give all of the evidence; suffice it to
say that this connection between human dignity and the divine is present in the earliest

8
I include this observation, because it should not be thought that considerations of reciprocity and
mutuality are distinctive of the Kantian tradition in moral philosophy.
9
This last view is roughly that adopted by Kantianism, which is why it is often doubted that Kantianism, in
its formalism, gives an account of specifically human dignity.
10
This, I believe, is the conception of political society according to Lockean liberalism. Cp. Lincoln, “a
nation ... dedicated to the proposition that all men are created equal” (my emphasis). It is an association
which aims precisely to draw attention to, defend, and promote human dignity.
 4

sources, and in nearly all documents and speeches that have a claim to be authoritative.11
In the Judeao-Christian tradition, human beings are made “in the image of God”; in
Greek philosophical thought they are theion (godlike) and achieve happiness by
becoming divinized; in the main strands of Roman thought represented by Stoicism,
human beings belong to a natural community of gods and men. Locke says that human
beings are the workmanship of God; the Declaration says that it is self-evident that we
are created equal;12 Lincoln finds it strange “that any men should dare to ask a just God's
assistance in wringing their bread from the sweat of other men's faces”; Martin Luther
King appeals to the day when “all of God’s children ... will be able to join hands” and
thank God in common for their freedom.
We should follow Aristotle’s advice and first be clear that this is the standard
conception of human dignity, before asking why it is so. One simple explanation, of
course, would be that the standard conception is true, and people commonly recognize
that it is true. Yet even if one accepted this, one might still wonder why it made sense for
human dignity to be conceived of in that way, as somehow related to the divine. This is a
rich topic, but the following two considerations seem to me especially important.
First, it is natural to think of a power of cognizing something as having worth in
proportion to what it can cognize. The power of discerning, say, only various shades of
dirt would not be very impressive; on the other hand, a being who could come to know
and esteem the very highest being would for that reason have extraordinary worth. In
fact, the public appeal to God as a being we can come to know and obey would ipso facto
underwrite human dignity, since, in the very fact of that appeal, one would exhibit the
worth of those powers in which (it was presupposed) human dignity consists.13
Second, the existence of God underwrites the ‘commonsense metaphysics’ of
human beings as constituting a natural kind. Not everyone has studied Aristotle’s
Categories and has a sure grasp of the philosophical grammar distinguishing ‘substance’
from ‘accident’. On the other hand, all of us know what it is for a uniform kind of thing
to be produced by human intention and craft, and we can distinguish between essential
and accidental with reference to the intention of the maker.14 Just so, to conceive of
human beings as somehow the ‘workmanship’ of God suffices to mark them out as a
natural kind and allows the identification of some characteristics as ‘intrinsic’ and ‘by
nature’.
In the standard conception these two considerations are related, because it is
natural to think that like is known by like; therefore (it is thought), a being which can

11
Again, I speak of our tradition, the one in which constitutional democracy and its theory have been
developed.
12
And in his rough draft Jefferson was intent to emphasize that “from that equal creation they derive rights
inherent and inalienable” (my emphasis). Note that the phrase ‘inherent and inalienable’ means the same
thing as my word, ‘intrinsic’.
13
I believe that this so to speak performative character of the appeal to God, in public contexts in which
human dignity is at stake, is the significance of the appeal to “self-evidence” in the Declaration. It is not
that Jefferson et al. accepted Anselm’s proof or the equivalent; it is rather that they recognized implicitly
that the very fact of appealing to God as a vindicator of rights served to vindicate those rights.
14
Hence the language of an ‘intention of nature’ in Locke. The phrase serves its purpose well enough,
although strictly it might be thought to confuse two things: (i) the intention of the Author of Nature; (ii)
what it is about a natural thing which makes it what it is and allows us to assign it to a natural kind.
 5

come to know God15 must itself be somehow like God; but then this would serve to set
apart that sort of being as a class from everything else. This interrelationship lends a
peculiar coherence to the standard conception of human dignity, since according to that
conception our power of knowing has a worth that is accounted for by what we come to
know through the exercise of that power.16 That we can come to know God accounts for
our worth in being able to come to know God, and our worth in being able to come to
know God accounts for what we know.
Thus, the conception of human dignity which has been dominant and standard in
our tradition, is that human beings, as members of a natural kind, have a special worth, on
account of their intrinsically having rational powers of knowledge and will; that
appropriate treatment is due to them, with some things becoming universally
inappropriate, as a consequence of this intrinsic worth; and that human beings so
understood have an origin and destiny somehow bound up with the divine.17

The Conception of Human Dignity as a “Political” Conception

If the conception of human dignity may, as within ‘moral theory,’ be thus described—
that is, if we endeavor simply to get clear about the structure of a conception—we can
next inquire as to the relationship between this conception and what Rawls calls ‘Political
Liberalism’. It would be too quick simply to say that the conception of human dignity
includes metaphysical and theological elements and therefore is inconsistent with
‘political liberalism’. I propose rather that first we try to approach Political Liberalism
from the point of view of the conception of human dignity and ask how far one could
share the goals of Political Liberalism while holding fast to the conception of human
dignity. Then I propose we look at the question from the other point of view, and inquire

15
I use this phrase ‘come to know God’ simply as a marker for how God is thought to serve somehow as an
object of the rational powers of knowing and willing; there are of course many views as to what this
consists in, or how far it is possible, and the conception of human dignity need not be definite on those
points.
16
Contrast this with typical ‘naturalist’ conceptions current today, according to which what we know tends
to undermine the worth of our power of knowing it. A particularly salient example is an essay by Stephen
Pinker, in which he criticizes recent initiatives at Harvard to revise its undergraduate curriculum by
including some study of ‘faiths’. First Pinker at first says that the report takes too utilitarian a view of
human reason: “Missing from the report is a sensitivity to the ennobling nature of knowledge: to the
inherent value, with consequences too far-reaching to enumerate, of understanding how the world works.”
Yet two brief paragraphs later, Pinker asserts that, rather than paying attention to ‘faiths’, the curriculum
should also emphasize: “... that humans are primates; that the mind is the activity of an organ that runs by
physiological processes; that there are methods for ascertaining the truth that can force us to conclusions
which violate common sense, sometimes radically so at scales very large and very small; that precious and
widely held beliefs, when subjected to empirical tests, are often cruelly falsified” (from “Less Faith, More
Reason”, Harvard Crimson, October 27, 2006). His second view tends to undermine his first.
17
The three elements of this conception coincide nicely with a common and longstanding classical
conception of goodness, according to which it involves, first, the possession of a ‘form’ which serves to
establish something as a member of a kind; second, the additional possession of ‘excellences’ which serve
to render something having that form a good member of that kind; and, third, the appropriate ordering,
within some larger whole, of the thing having that nature and excellence. That they so coincide serves to
confirm the accuracy of this account and its basic fidelity to a longstanding tradition. For that classical
conception, see Thomas Aquinas, S.T. I.v.5, “Whether the essence of goodness consists in mode, species,
and order?”
 6

as to how much of the conception of human dignity can be captured within Political
Liberalism, or modeled by the resources available to it, and whether Political Liberalism
must actually be committed to rejecting elements of that conception. And after we have
done these two things, I believe, we will have a clearer understanding of the relationship
between the two positions.
The first thing I wish to observe, is that the conception of human dignity, as I
have described it, has perhaps most commonly been understood as a ‘political
conception’ in the ordinary sense of that phrase, that is, as a way of looking at the world
which is proposed for public acceptance and which is thought to provide a public
rationale for political institutions and practices upheld in common. Although it has roots
in particular philosophical schools, and can easily be regarded as the public expression of
basic ideas in Christianity and Judaeism, nonetheless it has not been typically advocated
by small sects or parties as expressions of partisan interest. When small groups have
been noteworthy for holding to it, in contrast with the majority, they have done so with
revolutionary intent, not in order to harness the engine of the state in order to advance a
partisan agenda,18 but with a view to the conception’s becoming a shared basis for
cooperation in a society marked by self-government.19
We might naturally expect that if the conception of human dignity has been
proposed, accepted, and acted upon as a political conception, then it does political work.
And this would seem to be correct. At one go it does all of the following: it (1) affirms
that human rights are prior to convention and human decision, because rights are based in
something intrinsic to human beings;20 (2) settles once and for all the question of the
extent of application of those rights, since any member of the natural kind enjoys those
rights, in virtue of belonging to that kind;21 (3) provides a public basis for freedom of
religion, insofar as it acknowledges in the public forum that human beings have an origin
and destiny, and therefore obligations, which transcend political society;22 and (4)
accounts for what Lincoln called ‘the right to revolution’ by providing a test for the
proper working of government.23 In all of these ways it provides a public understanding
according to which government is checked and limited by claims in relation to nature, or
in relation to God, which are conceived of as more fundamental than any claims of
government. I believe that it is because all of these important consequences may be

18
As Rawls understands actors in the ‘Wars of Religion’. See e.g. Political Liberalism, Introduction, xxvi-
xxviii.
19
To wit: the American Founders; the Levellers; the Abolitionists; the Solidarity Movement. The point is
that the conception is not brought forward in order to ‘harness the engine of the state in order to advance a
partisan agenda’, which is as Rawls understands the motives of actors in the ‘Wars of Religion’, but rather
in order to reform and correct what is conceived as being an autonomous political society with its own
proper nature.
20
This is the force of “human beings are born free and equal in dignity and rights” (my emphasis) in the
Universal Declaration of Human Rights (1946). Or see Jefferson’s language especially in the Draft of the
Declaration of Independence: “all men are created equal and independent; ... from that equal creation they
derive in rights inherent and inalienables”.
21
Hence “all human beings are born free and equal in dignity and rights” (my emphasis), in the same
Declaration.
22
Here the Universal Declaration is weak, as it assimilates freedom of religion to freedom of thought and
freedom of association (articles 18-20), which could at best underwrite what Stephen Carter has aptly
called a “culture of disbelief”.
23
We shall see that there seems to be no basis for a ‘right to revolution’ in Political Liberalism.
 7

regarded as contained implicitly in the proposition that ‘all men are created equal’ of the
Declaration, that Lincoln was wont to refer to ‘the principles of Jefferson’ as ‘the
definitions and axioms of free society’.24 That is to say, Lincoln apparently held that the
‘political conception of human dignity’ stands to institutions and practices of a free
society in the way that the definitions and axioms of Euclid stood to the geometrical
constructions that follow from them.
This political conception of human dignity has generally, throughout the history
of the United States, been the object of an ordinary ‘overlapping consensus’—in the
sense that it has been generally believed, and believed to be generally believed, and it
was naturally inculcated and transmitted, without coercion, as something generally
believed. It was of course commonly cited, and citizens would remind themselves of it,
on important and solemn public occasions, such as celebrations of Independence Day and
Lincoln’s birthday. Even residents of slave states affirmed it: Douglas lost the debates in
part because, by his holding to the doctrine of Popular Sovereignty, he was forced in
debate to deny that the phrase “all men are created equal” meant all human beings. The
most recent public use of the conception was the Civil Rights movement, and, although
inquirers into Public Reason may debate now whether a ‘proviso’ were needed so that the
speeches of Martin Luther King would be appropriate as directed at the reform of public
institutions, that particular point was not a matter of controversy throughout the 1960s.
This is all to say: the lack of confidence in this conception, which is commonly felt today
among more educated classes, is of relatively recent origin—about 30 years old.
Given the authority of Jefferson and Lincoln; the use of the Declaration of
Independence for constituting and preserving the country in its crucial, defining
moments; the plain facts about what has constituted civic virtue throughout American
history; and other considerations, such as the importance of a nation’s having a ‘story it
can tell itself’ about how it constitutes itself as a unity;25 one might reasonably wonder
why ‘the political conception of human dignity’ should on broad political or
philosophical grounds26 be judged unsuitable as a framework for consensus and common
agreement for contemporary American society.27
This question can be raised as leading to purely practical questions—“Do enough
people believe it, or could they? Can we be confident that even that consensus would
remain stable over time?” Yet these things have never been regarded as where the
difficulty lies. There is far more of a consensus in such matters than one ever looks for

24
See e.g. letter to Messrs. Henry L. Pierce, & others, April 6, 1859.
25
I take this idea from Joseph Weiler’s account of how a ‘constitutional act’ is properly conceived, in his
discussion of the controversy over an invocatio Dei in the proposed constitution for a European Union.
26
It would be impossible to consider here the proper construction of Constitutional Law and the merits of
decisions of the Supreme Court as regards religion in the ‘public square’.
27
One might also wonder whether broad grounds are suitable for making such an evaluation, rather than
very practical and conservative criteria such as: this has worked in the past well enough, and experience has
provided us with no definite reason to reject it. Cf. Washington’s Farewell Address: “In all the changes to
which you may be invited, remember that time and habit are at least as necessary to fix the true character of
governments as of other human institutions; that experience is the surest standard by which to test the real
tendency of the existing constitution of a country; that facility in changes, upon the credit of mere
hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and
opinion;...”.
 8

in practice in human affairs.28 And consider the matter in this way: advocates of Political
Liberalism take it for granted that Americans who are Christians would continue holding
to Christianity even in a society which in discourse in the public forum never trangresses
against the austere limits set by the ideal of Public Reason; a fortiori, then, those citizens
would continue to accept a weaker view than Christianity, the political conception of
human dignity, in a society in which something more robust than Political Liberalism
provided the framework of public discourse.29
The more interesting objections are principled ones. For instance, one might
appeal as Rawls does to a principle he variously refers to as ‘the principle of reciprocity’,
‘the principle of liberal legitimacy’, and the ‘duty of civility’:
...our 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.30
But this is a principle of absolute consensus, and therefore it is unworkable as a realistic
political ideal. To make it seem workable, a defender of Political Liberalism must adopt
the strategy of regarding those who dissent from a proposed consensus as by definition
unreasonable, either in what they refuse to endorse or in what they expect fellow citizens
to be able to endorse.31 It need hardly be said that frequent recourse to such a strategy is
inconsistent with the attitude of reciprocity which Political Liberalism is meant to
embody.32
It is perhaps not surprising, then, that the requirement of full unanimity is
sometimes omitted from Rawls’ apparently most considered formulations of the
principle.33 Rawls even adopts the expedient—natural enough, although unjustified
according to the strict principle of liberal legitimacy—of thinking of a ‘reasonable
principle’ as one that wins the rough ‘consensus’ of a majority over time. In a strange

28
Keep in mind, too, that the political conception of human dignity allows scope for variant understanding
of the same basic ideas. In this regard, note how easy it was for Washington, well aware of the diversity of
religious practice in the original states, to remark in his Farewell Address, “The name of American, which
belongs to you in your national capacity, must always exalt the just pride of patriotism more than any
appellation derived from local discriminations. With slight shades of difference, you have the same religion,
manners, habits, and political principles” (my emphasis).
29
I do not doubt that it would be possible to develop an argument that the political conception of human
dignity has stability insofar as it is self-sustaining, in the manner of Theory of Justice Part III; indeed, the
conception of human dignity has far richer resources for achieving this than Rawls had at his disposal. But
needless to say this cannot be discussed here.
30
“The Idea of an Overlapping Consensus” at §I.3 in Political Liberalism, 2nd edition.
31
That seems to be the strategy underlying, for instance, Rawls’ notorious footnote on abortion, the upshot
of which is that it is unreasonable for someone to expect another to endorse the view that the right to life of
an unborn child trumps putative liberty interests of the child’s mother (see “The Idea of Public Reason”,
footnote 32, in Political Liberalism).
32
One might mention in this regard, too, the mistrust that understandably arises among members of one
party to a range of disputed issues, when it turns out that their views are repeatedly dismissed without
argument as ‘unreasonable’.
33
As, for instance, in “The Idea of Public Reason Revisited”, I.2: “Citizens are reasonable when, viewing
one another as free and equal in a system of social cooperation over generations, they are prepared to offer
one another fair terms of cooperation ... provided that other citizens accept those terms.” The quantifier,
‘all’, has dropped out.
 9

and surreal discussion of abortion, in which Rawls advises the pro-life movement on their
duty to obey the law even after they have lost the public debate, Rawls writes:
In particular, when hotly disputed questions, such as that of abortion, arise
which may lead to a stand-off between different political conceptions,
citizens must vote on the question according to their complete ordering of
political values....[Pro-life citizens] may present an argument in public
reason for denying [a right to abortion] and fail to win a majority. But
they need not themselves exercise the right to abortion. They can
recognize the right as belonging to legitimate law enacted in accordance
with legitimate political institutions and public reason, and therefore
should not resist it with force. Forceful resistance is unreasonable:34 it
would mean attempting to impose by force their own comprehensive
doctrine that a majority of other citizens who follow public reason, not
unreasonably, do not accept.35
If one puts aside the lack of reality of this discussion, what Rawls is saying is that, within
Political Liberalism, stand-offs between conflicting political conceptions can be decided
by majority vote;36 of course, a proponent of what I have called ‘the political conception
of human dignity’ can say just the same, so that in this respect it is no worse off.
Someone concerned to defend Political Liberalism might next object that ‘the
political conception of human dignity’, because it embodies a ‘comprehensive
conception’, could never serve as a stable basis for political society, since a society that
associated on that basis would either be one (i) in which the machinery of statecraft was
harnassed to promote a particular comprehensive conception, or (ii) in which the liceity
of that sort of arrangement was at least admitted in principle—so that in either case the
society would soon break apart in civil strife such as that seen in the Wars of Religion.
A sound reply to this objection starts with the observation that a political
conception suitable for a particular society needs to be crafted in relation to problems that
are in fact pressing for that society. Wars of Religion never have been a threat in the
United States, perhaps because the ‘political conception of human dignity’ has served as
a suitable framework for the coexistence of different religions.37 On the other hand, the
34
I take Rawls’ use of the present tense here—and also his characterization (in footnote 82) of Cardinal
Bernardin’s ‘seamless garment’ argument, as an appeal to public reason that failed to win majority
approval—as indicating that Rawls is expressing his view of the actual status of the controversy at the time
(1999).
35
Note that all the resources of ‘civil disobedience’ and ‘conscientious refusal’, carefully worked out on
behalf of civil rights and anti-war protesters in Theory of Justice (Part II, chapter vi), have in this passage
completely vanished from view.
36
As I interpret the passage, Rawls is strictly referring to a stand-off in discussions where different parties,
within an already existing constitutional framework, have recourse to different understandings of Public
Reason. Rawls may therefore wish to claim that majority vote is to settle stand-offs only within such
contexts. But of course this will not do, since similarly one could not rule out like stand-offs as regards
constitutional essentials: precisely what is at odds in the kind of discussion Rawls is considering is whether
‘the right to abortion’ should be put up to vote, or ruled out (or, alternatively, guaranteed) ex ante by
constitutional provisions.
37
“The dominance of civil religion produced a favorable climate in which the various forms of biblical
religion could and did thrive. ...Deism by itself was too dry and abstract to elicit warm adherence, but the
American consensus always surrounded the positive teachings of deism with the flesh and bones of specific
faiths, whether Protestant, Catholic, or Jewish.”Avery Cardinal Dulles, “The Deist Minimum”, in First
Things (January 2005).
 10

one instance of civil war in American society was caused by an institution which
offended against the principle of the intrinsic worth of every human being, which the
political conception of human dignity is precisely concerned to affirm.
Yet even if Wars of Religion were a looming threat to American society, the
‘political conception of human dignity’ is not a religion, nor even a ‘comprehensive
conception’, but rather a commonsense philosophical outlook which extends to only a
limited domain, and which is held with a deliberate indefiniteness as to its details. As we
know, Political Liberalism, out of a concern for Wars of Religion and the like, insists on
‘applying the principle of toleration to political philosophy itself’, so that principles of
political association have no entanglement with religion. But the additional step by
which it aims to do the same as regards philosophical theses is surely unjustified, as there
have never been any Wars of Philosophy. That is, there seems to be no good practical
reason, starting from considerations of stability, for insisting that principles of political
association be free from any basis in philosophy.38
In sum, we have not identified any sound reasons that might be urged from the
viewpoint of Political Liberalism, for why the political conception of human dignity
should not serve as a public framework for assessing constitutional institutions and
practices in a political society marked by self-government. It fares no worse than
Political Liberalism as regards consensus or stability.
But what about as regards fairness? Isn’t there something ‘non-reciprocal’, and hence
unfair, about a society in which one point of view, whether it be a religious or a
philosophical view, is used as the basis for evaluating institutions and practices? Isn’t
this unfair to those who do not hold such a view (and unfair in principle to citizens who
might reasonably hold that view, even if no one actually does)? To this objection, three
replies:

1. If the selection of that viewpoint were arbitrary, or based merely on power or

accident, then perhaps its selection would be unfair: but we have been urging that
the political conception of human dignity might be favored for reasons that all, or
nearly all, citizens are in a position to appreciate and endorse.

2. (An objection ad hominem against Political Liberalism) If, as Political Liberalism

asserts, a variety of incommensurable comprehensive conceptions may all support
the same, liberal political institutions, then, from the point of view of practice
(which, according to ‘Kantian constructivism’, is the viewpoint that should be
primary as regards political philosophy), it makes no difference whatsoever if one
of these is made the official philosophical framework of a political society. Why?
Because by hypothesis there will be no practical difference: citizens will be

38
Someone might urge that Nazism and Communism were philosophical systems that took control of
systems of government precisely in order to launch, in their own way, ‘Wars of Philosophy’.—One might
doubt that that was an accurate description of the rise of these systems. Or, even so, one might hold that
the proper lesson to draw from their history was not (the overly broad remedy) that political society should
refrain from adopting principles that have a philosophical basis, but rather that society should adopt
principles with a potent enough philosophical basis that citizens are capable of rejecting Nazi or
Communist arguments. Of course Nazism rejected the equal inherent dignity of all human beings,
whatever their race; and Communism as a materialist and deterministic system rejects the theses that
human beings have intrinsic worth and a divine origin and destiny.
 11

treated, within those supported liberal institutions, just as they would be if their
own comprehensive conception were the official philosophy. (And, for their part,
they can continue to regard those institution and practices as having, in reality, the
sort of justification that they thinks they ought to have, from the point of view of
their own comprehensive conception. Nothing stops them from doing that.)

3. Nothing rules out an official public philosophy’s being proposed and supported
entirely out of an attitude of genuine reciprocity—provided, that is, that the one
who propose it is sincerely convinced that that official philosophy is best from the
point of view of all members of political society, including those who do not
accept it. Suppose an atheist objects that it is unfair if the ‘political conception of
human dignity’ is made the official philosophy of his political society, on the
grounds that he is an atheist and so he cannot endorse a philosophical conception
that affirms, however indistinctly, the existence of something divine. The
proponent of the political conception of human dignity could reply, with all due
regard to reciprocity: “But if I were an atheist, I would much rather live in a
society regulated by my conception of human dignity, than in a society not so
regulated at all; whereas, if I were an atheist, I could not reasonably propose that
my fellow citizens live in a society in regulated by my atheistic viewpoint. Thus,
I support the political conception of human dignity precisely on the grounds of
civility and reciprocity. I regard it as the viewpoint that best withstands this test
of reciprocity and mutual acceptability.”39 So there needn’t be anything unfair in

39
That this sort of attitude may genuinely be expressive of reciprocity is missed by Rawls because, I think,
of a fallacious step in how he sets up the argument from the Original Position. Let us suppose that it is
true, and knowable by reason, that God exists. (Political liberalism cannot rule this out ex ante, without
adopting a philosophical position, which it does not wish to do. Thus we may allow the supposition.) On
what grounds should we deny deliberators in the Original Position this knowledge—since we assign to
them all other knowledge of fundamental truths about the universe? (Again, we cannot draw a distinction
of the sort that a positivist or naturalist would wish to make, and say that knowledge, because it must be
based on sense experience, cannot in principle extend to something like the existence of God, since that too
would be to adopt a philosophical position, which Political Liberalism cannot do.) Are the deliberators to
be denied this knowledge because they do not know whether, in the society into which they are contracting,
they will be theists or atheists, and so their choice of principles of justice should be independent of that
consideration? Well and good: then make them ignorant of whether they will be theists or atheists. That is:
have them chose principles of justice, with full knowledge that God exists (as we are supposing is true,
because we believe that God exists, and take ourselves to have good grounds for so believing this, and
therefore see no reason why this truth should be put aside in the Original Position), but deny them
knowledge of whether they will believe that God exists, in the society into which they are about to enter. –
If the choice situation is conceived in this way—and there is no reason why it should not, given the
requirements of the argument from the Original Position—then it would be possible for the deliberators to
choose principles, for the regulation of their society, which presuppose (as in our example) that God exists,
while at the same time taking pains to insure that full religious liberty and freedom of thought will be
safeguarded in that society, as they do not know whether they will be one of those citizens that does not
accept the viewpoint that regulates the constitution. (What result is a combination common in European
states. “All in all, about half the population of the EU lives in states whose constitutions make an explicit
reference to God and/or Christianity. What is remarkable about Europe-a value to be cherished-is that even
in such states, the principle of freedom of religion and freedom from religion are fully respected. No one
could credibly argue that, say, Denmark is less committed to liberal democracy or is less tolerant than, say,
France or Italy, despite the fact that Denmark recognizes an official state church and France and Italy are
 12

will and in intention, in the situation we have been considering—but if reciprocity

is simply making proposals with a view to what another may reasonably accept,
then it is unclear what could be unfair about it at all.

Political Liberalism and Human Dignity

We have approached Political Liberalism from the point of view of human dignity and
have arrived at the conclusion that ‘the political conception of human dignity’ can
apparently accommodate those sound considerations that can be brought to bear upon it
from the side of Political Liberalism. We now look at the question from the other angle:
Can Political Liberalism accommodate what may be urged from the side of human
dignity?
Well, once again, simply to give an answer to this question is easy. Political
Liberalism cannot accommodate the conception of human dignity, because that
conception has a definiteness that depends upon what we called ‘commonsense
metaphysics’, and this Political Liberalism must disavow. Political Liberalism cannot
affirm that any human rights are inherent, that is, that they belong to us ‘by nature’ (as
the very notion of nature as prior to convention is a philosophical notion); it is incapable
of holding firm to the claim that every member of the natural kind, human being, has
human rights (as the notion of a natural kind belongs to metaphysics); it can give no
principled and adequate defense of the priority of religious obligation over the demands
of the state. More than this, a proponent of Political Liberalism must insist that appeals
to any of these philosophical notions—nature conceived of as prior to the state, or the
human race conceived of as a natural kind—must be ruled inadmissible in Public Reason.
The ‘proviso’ that Rawls allows, namely, that notions drawn from religion or philosophy
may be admitted to Public Religion so long as they admit of eventually being
reformulated in the language of Political Liberalism, is irrelevant, because these notions
cannot be so reformulated. A claim which involves an appeal to something outside a
practice (nature, God, natural kinds, inherent worth), cannot be reformulated as a claim
which simply articulates something internal to that practice. Thus, Political Liberalism
must not simply prescind from, it must also reject the political conception of human
dignity, and the adoption of Political Liberalism requires the abandonment of what I have
called the ‘standard’ understanding of human dignity.
But what is more useful is to understand better why things must be so for Political
Liberalism. To that end, I wish briefly to say something about Rawls’ philosophical
development. This little detour is helpful, as it will illuminate how this rejection of the
conception of human dignity is required within his approach to political philosophy; it is
not something optional, and it cannot be repaired or fixed.
Rawls’ entire political philosophy may be understood as a series of attempts to
deal with a difficulty that arises with respect to a footnote in his first published paper. In
that paper, “Two Concepts of Rules”, Rawls introduces what he calls a ‘practice’: a
‘practice’ some structured coordination of human action through the specification of
offices, powers, and responsibilities. Rawls’ paradigm of a practice is a game such as

avowedly secular”, Joseph Weiler, “Invocatio Dei and the European Constitution,” Project Syndicate, May
2004.)
 13

baseball. And the main point that Rawls wishes to make in the article is that there is a
distinction between: (i) the evaluation of an action in a practice, from a point of view
located within the practice itself, as opposed to (ii) the evaluation of the practice itself,
from a point of view external the practice. For instance, whether the runner is ‘safe’
because he arrived at first base before the throw is an evaluation of an action within the
practice of baseball itself, which is carried out by the person duly authorized to make that
judgement (the umpire), in accordance with the rules recognized to govern the game. But
the evaluation of the practice itself—whether for instance the rules should be changed,
say, to allow for a designated hitter—is undertaken from a point of view external to the
practice itself.
Rawls maintains that it is not even possible to do one of the actions of a practice
except as within the context of the practice. For instance, if you are swinging a bat for
exercise in your back yard, you are neither ‘striking out’ nor ‘walking’. According to
Rawls, this is because the actions of a practice are constituted by the rules of the practice
itself. 40 And that is why individual actions within a practice have to be evaluated with
respect to those rules, rather than in relation to a viewpoint external to the practice.41
Rawls develops his analysis of ‘practices’ in order to apply it to punishment and
promising. He regards punishment as a practice, viz. the practice of assigning penalties
to certain identified classes of actions. According to Rawls, the practice of punishment is
established by the legislature, which, in establishing the practice, relies upon forward-
looking and broadly utilitarian considerations. However, once the practice is established,
then decisions as to whether particular actions are to be punished or not are made from a
standpoint within the practice, that is, by the persons occupying ‘offices’ who are duly
authorized to carry out investigations, conduct trials, and arrive at judgments in
accordance with the rules that govern the practice. The utilitarian viewpoint, appropriate
for the legislature when it decides upon the practice, may not justifiably intrude within
the practice, once that is established. That is how Rawls handles the problem of why, if
the ultimate justification for punishment is forward-looking and utilitarian (as he
presumes)42, we nonetheless regard it as never right for a court to punish an innocent
man, even if, in odd circumstances, that might be thought to advance the general welfare.
The reason is that someone who is acting within the practice of punishment is not so far
authorized to make any appeal to the reasoning that justifies the practice as a whole.
Now perhaps it has become clear already that the reason Rawls is so interested in
‘practices’ is that he wants to see how far a practice can carry along with it that feature
which seems distinctive of morality, viz. that when we about what is right to do, this
consideration takes priority over any considerations of advantage or utility. Rawls’

40
“Striking out, stealing a base, balking, etc. are all actions which can happen only in a game. No matter
what a person did, what he did would not be described as stealing a base or striking out or drawing a walk
unless he could also be described as playing baseball, and for him to be doing this presupposes the rule-like
practice which constitutes the game” CP 37.
41
“In a game of baseball if a batter were to ask ‘Can I have four strikes?’ it would be assumed that he was
asking what the rule was; and if, when told what the rule was, he were to say that he meant that on this
occasion he thought it would be best on the whole for him to have four strikes rather than three, this would
be most kindly taken as a joke” CP 38.
42
Rawls shows no sympathy with retributivism per se; his instincts are antecedently all against punishment,
as revealed in this remark: “Only a few [philosophers] have rejected punishment entirely, which is rather
surprising when one considers all that can be said against it” (in Collected Papers, CP, 21).
 14

ultimate goal is to identify some practice such that someone acting within that practice is
never authorized to adopt a viewpoint of evaluation external to the practice; thus, a
person who was engaged in such a practice would never be authorized, in particular, to
adopt a utilitarian viewpoint. For such a practice, its rules would always ‘trump’
considerations of utility or advantage.
Rawls explains nicely how actions which are necessarily within a practice
because they are in fact constituted by the rules of a practice must be evaluated as within
the practice; they cannot be dealt with in isolation on utilitarian grounds (that would be
like the batter asking for four strikes). 43 But how does he deal with someone who wants
to criticize or reject the practice as a whole—for instance, a baseball player who thinks
the rules are unfair and either wants to insist that they change or is tempted to quit the
game altogether?
Rawls touches upon this problem briefly in footnote 25 of “Two Concepts of
Rules”, where he gives his resolution for the difficulty of why one ought to keep a
promise made privately to a dying man. The man is dead; he won’t be offended or
harmed. No one else heard you promise, and you need tell no one, so that certainly the
‘institution of telling promises’ will similarly not be harmed. Suppose, then, that
unexpectedly there arise new circumstances which make it overwhelmingly expedient to
you, and helpful to others, for you to neglect keeping that promise. Suppose too, for the
purposes of argument, that these new circumstances are not the sort that were implicitly
recognized as potentially superseding the promise, when the promise was made. Then
what is the reason why you should not break the promise? Given the circumstances, you
are inclined to appeal to a utilitarian viewpoint external to the promise, to justify your
breaking it: what is to keep you from doing so?
Rawls handles the problem by arguing that utilitarian considerations themselves
tell you to remain true to the practice and keep your promise:
....once he [adopts the external, utilitarian viewpoint] he will see that there
are such arguments for not allowing a general utilitarian defense in the
practice for this sort of case. For to do so would make it impossible to ask
for and to give a kind of promise which one often wants to be able to ask
for and to give. Therefore, he will not want to change the practice, and so
as a promisor he has no option but to keep his promise.
That is to say, when the promisor is tempted to walk away from the practice, the
viewpoint he adopts, when he considers whether he should do this, will lead him to the
conclusion that he should return to the practice, and continue playing by its rules, and
keep the promise.
Now there are many unsatisfactory things about this resolution. For instance,
Rawls seems to suppose that for the promisor to allow himself an appeal to utilitarian
considerations in the way described is for him to consider revising the practice,
permanently so: but why couldn’t he wish to revise it only pro tempore, or why couldn’t
his decision be that he will simply walk away from the practice, as a player may simply

43
Hence the “two concepts of rules”. The rules which regulate a practice, Rawls observes, are not mere
summaries of evaluations of actions considered one-by-one and in isolation (what Rawls calls ‘rules of
thumb’); rather, the rules are constitutive of the actions of the practice (it’s the rules of baseball that make it
such that a someone is even a ‘batter’ who can ‘step to the plate’ at all); therefore rules of this sort are
decisive in the evaluation of those actions that they constitute.
 15

walk away from a baseball game?—In the latter case his action would imply nothing
about how he might engage in the practice on other occasions or in other circumstances.
He has simply left the game; he has not tried to change its rules. Another difficulty is
that the reasoning which Rawls regards as decisive in the case is not utilitarian at all (as
he claims), but rather Kantian, because it hinges crucially on considerations of
universalizability and reciprocity: the promisor is meant to consider that if he breaks this
promise, then he is implicitly adopting a maxim which keeps him from ever entering into
an unconditional promise, which maxim he could not reasonably affirm; also, he is meant
to realize that he cannot rationally adopt, as a promisor, a maxim that he would be unable
to endorse as a promisee.
I draw attention to these difficulties, because Rawls’ next publication, “Justice as
Fairness”—which is that paper where he sets down all the fundamental ideas which are
developed later in A Theory of Justice—may fruitfully be understood as dealing with
these very same difficulties, but in a more satisfactory way. Rawls’ basic insight
remains the same: he thinks that with the notion of a ‘practice’ he can capture the way in
which considerations involving what it is right to do trump absolutely considerations of
utility. But now Rawls better appreciates that, in order for a practice to have that kind of
status, it cannot be something from which participants can justifiably walk away.
But what sort of a practice could be like that? Clearly we can walk away from
baseball and other games. A plausible candidate would be the practice implicit in the
basic institutions of political society, since, as pointed out by Aristotle long ago, political
society is the overarching association in which we participate.44 And, if so, the relevant
offices, roles, institutions, and actions, would be those actually constituted by the rules
governing participation in political society. These Rawls refers to as the ‘basic structure’.
Rawls then tries to solve the problem about walking away by, so to speak,
generalizing the difficulty. He deals with it not as something that arises only in special
circumstances (as in the example of the promisor tempted by circumstances not to keep
his promise), but rather something that can arise at every moment when we are engaged
in the relevant practice. That is, Rawls allows that at each moment participants in the
‘practice’ which is political association are able to raise for themselves the question of
whether they should walk away. To raise this question is to take the viewpoint of what
Rawls at first calls the ‘general position’ but later refers to as the ‘Original Position’.
We saw that to resolve the difficulty of whether to keep a promise to a dead man,
Rawls ended up using Kantian reasoning, which he misdescribed as utilitarian. In
“Justice as Fairness”, Rawls now explicitly holds that, when participants in the practice
of political association have recourse to the ‘general’ or Original position, they are bound
to use Kantian reasoning. Why should that be so? The participants of a practice, Rawls
maintains, from the very fact that they are engaged in a practice at all, and therefore
following rules, are committed to the Kantian principle of universalization; again, from
the fact that they are engaged in a practice, and to that extent have been on the receiving
end of benefits deriving from those rules, they must be committed to a Kantian principle
of reciprocity.45 The Original Position, Rawls claims, is designed precisely to model

44
Clearly, as regards any subordinate practice, one could appeal to a superordinate practice as an external
viewpoint of evaluation.
45
“...having a morality must at least imply the acknowledgment of principles as impartially applying to
one’s own conduct as well as to another’s” (“Justice as Fairness”, in CP 54).
 16

these considerations of universalizability and reciprocity; and he furthermore claims, of

course, that deliberators who follow these constraints would never appeal to utilitarianism
but rather settle upon the two principles of justice as the viewpoint from which to
criticize laws and institutions of political society.46
Notice that the two principles of justice are understood by Rawls as what those
who are engaged in the practice of political society are bound to appeal to, on the
supposition that they want to criticize and (presumably) improve those practices. That is
to say, Rawls is presupposing that the participants who are evaluating the practice remain
committed, still, to the practice—that they are not tempted simply to walk away from it
altogether. One wants to ask: has Rawls has simply side-stepped the problem of walking
away? He appeals to a fairly implausible principle of implicit social contract to explain
why they ought not walk away, as a matter of morality: if they have received benefits
from the practice, they should continue to abide by the practice, even when it is to their
disadvantage.47 He presumes, naturally enough, that if there are publicly acknowledged
standards for criticizing a practice, then participants will have little occasion to walk
away on account of complaints they have with the practice. He presumes, too, that
typically citizens cannot easily leave the political society in which they are participants.48
But as regards the remaining question of whether, nonetheless, participants will not be
very strongly attached to the practice, so that they will find no difficulty in walking away
from it for common or slight reasons—it is in order to answer this that Rawls develops
his lengthy and involved account of the stability of a ‘well ordered society’ in Part III of
Theory of Justice. That is to say, far from neglecting the problem of what keeps
participants from ‘walking away’ from a practice, Rawls devotes a third of his magnum
opus to dealing with it.
The problem of stability is not a small thing for Rawls. Indeed, the best way to
understand the big development in Rawls’ thought, from Theory of Justice to Political
Liberalism, is that now the problem of stability, what I have called the problem of
‘walking away’, looms even larger and assumes center stage. The reason is as follows.
So long as it is granted that participants in a practice, in order to evaluate that practice,
may adopt any viewpoint at all which is distinct from that practice, then it is possible that
they have disputes about that viewpoint also—whether that is the appropriate sort of
viewpoint; whether, if so, it has been characterized correctly; and so on. That distinct
viewpoint may itself be regarded as a practice; there can be disputes about that practice
also; and then participants may be tempted to walk away from both the practice which
was originally an object of dispute, together with the practice to which, it is alleged, one
should appeal in evaluating that practice. (Cp. a baseball player who walks away from
the game of baseball, not because he disagrees with something that happened in a

46
“The principles of justice may, then, be regarded as those principles which arise when the constraints of
having a morality are imposed upon parties in the typical circumstances of justice” (“Justice as Fairness”,
CP 55).
47
“...it may happen, when it comes one’s turn to follow a rule, that other considerations will justify not
doing so. But one cannot, in general, be released from this obligation by denying the justice of the practice
only when it falls on one to obey. If a person rejects a practice, he should, so far as possible, declare his
intention in advance, and avoid participating in it or enjoying its benefits” (“Justice as Fairness”, CP 60).
48
This is a weak consideration, since one need not leave the location of a practice in order to opt out of a
practice: for instance, one might go through the motions of obeying the law of a regime, while regarding it
as illegitimate.
 17

baseball game, but rather because he disagrees with the way his complaint was handled
under appeal.)
In Theory of Justice, Rawls does not see this as a difficulty, because he thinks that
the external viewpoint of appeal is Kantian morality, and he is presuming that everyone is
inevitably Kantian, simply in virtue of their being rational agents who follow rules. To
claim, as I have done, that the problem of stability dominates in the later Rawls, is to say
that Rawls does not want the commitment of participants in the practices of political
society, as regards those practices, to hinge upon their commitment to Kantian morality.
Reasonably enough, the latter comes to seem to Rawls to be more doubtful than the
former—certainly doubts may arise about how to characterize it, and surely also as to
whether Kantianism successfully captures the moral outlook of others generally.
In response to these difficulties, what Rawls attempts in his later work, where he
develops Political Liberalism—and this is the nub—is to collapse together the practice
that is being evaluated, with the viewpoint of evaluation. He now begins to claim that to
participate in the practices of liberal political society is ipso facto to have adopted already
practices for the evaluation of those practices (this is Kantian constructivism); so that
recourse to a distinct viewpoint of evaluation is neither necessary nor allowable (this is
Political Liberalism). And neither is it possible, insofar as one is committed to those
practices, even to adopt an external viewpoint from which one can criticize the practices-
together-with-their-implicit-practices-of-evaluation (this is Public Reason). After these
moves have been made, the only task that remains is the essentially sociological project
of making it plausible that one’s commitment to participating in this complex practice
over time is consistent with one’s holding any of a wide variety of views on matters other
than the basic structure of political society—that this practice is both accommodating and
stable (this is Overlapping Consensus).49
I have thought it useful to give this brief overview, because once we look at the
development of Rawls’ philosophy in light of his original ideas about ‘practices’, we see
that his philosophical career is marked by a focussed attention on simply one problem
associated with practices. As was said, he thinks he can capture, with the notion of
‘practice’, the distinctive way in which moral considerations—or, more precisely,
considerations of ‘justice’—trump considerations of utility. But the rules of a practice
could not possibly play that sort of role, so long as participants in a practice may, on
reasonable or even plausible grounds, walk away from the practice. And so Rawls
develops ever more elaborate and ingenious ways of removing the possibility of their
adopting a viewpoint outside the practice which (he thinks) is implicit in liberal political
association.
But this overview of Rawls’ development has all been stage-setting, for now we
come to what I believe is the crucial point. Because of his focus on this one problem
(walking away, stability), Rawls displays something of a blindspot with regard to other
ways in which a viewpoint external to a practice may force itself upon those who are

49
Note that when the development of Rawls’ later thought is viewed in this way, as a response simply to
the problem stability (walking away), then this explains why Rawls’ gives such weight to the Wars of
Religion, when one might have ordinarily thought that that was not a pressing issue for American political
society. The problem is designed for the solution, not the solution for the problem. It is because Rawls is
preoccupied with issues of stability, as he conceives them, that he looks back through the history of
constitutional democracy and names as a problem something that he thinks he has found an answer for.
 18

within a practice. Besides the problem of ‘walking away’, there are other problems as
well, and, but for one short-lived exception, Rawls never says anything very plausible
about these.
One such problem may be called the problem of ‘assignment’. A practice
specifies roles, but it cannot, without referring to something outside the practice, say
something about what things are appropriately assigned to roles. Sometimes the problem
of ‘assignment’ is a matter of a choice among things that are indifferent from the point of
view of the practice: but still a choice has to be made. For instance, you are about to
begin a game of Monopoly, and you have to choose either the car, the hat, the cannon,
etc. as your piece. The game gives the rules for moving the piece, but it does not say
which piece of metal is to be selected as the thing that fills, or is to be assigned to, one of
those roles. Other times—and these are the more interesting cases—the problem of
assignment involves actually the selection of something that is most appropriately
assigned to a role. For example, the manager of a baseball team decides whether to allow
the next person in order to go up to bat, or rather to substitute a pinch hitter, yet this
decision, although in accordance with rules of the game, is not made on the basis of any
rules of baseball. Similarly the manager holds try outs, to see which athletes should be
selected for the team, and of these which should be pitcher rather than shortstop or
catcher. An even more revealing example would be a ‘practice’ such as a play or movie.
It would evidently be absurd to cast Gwenyth Paltrow in the role of Maximus for the
movie Gladiator. Admittedly the ‘rules’ or script for a movie may be quite explicit
about the sort of actor that should be cast in a certain role, but the ‘rules’ can do so in
only a general way, and they certainly cannot do so without referring those who are
interpreting those rules to a viewpoint that is properly external to the practice.
For political society, the problem of ‘assignment’ takes the form of decisions
about how to assign some role or office to someone because of merit or desert, where this
is something judged prior to the assignment. For instance, a legislature which decides to
pass a law (say) outlawing murder does not do so only with a view to how things will
work out for the better for society over time if such a law is adopted. Rather, the
legislature looks also to the wrongness, the inappropriateness, of one person’s
deliberately taking the life of another when it frames the law. Indeed, sometimes a sense
of outrage or indignation over only a single instance of particularly heinous wrongdoing
will lead a legislature to decide that actions of that sort should be outlawed generally.
And in any case a society would not over the long run be disrupted by or care about
actions such as murder, if murder were not unjust antecedently to the law that prohibits it,
and recognized as such. These considerations point to the merit or desert that can attach
to a deed prior to any human conventions for punishing it: if one man murders another on
a desert island, he does something unjust, and he deserves punishment, whether his action
falls under a law passed by a legislature or not.
The reason Rawls fails give due attention to the fact that a viewpoint external to
the practices of political society must be adopted in many cases where there is some issue
of ‘assignment’, is that he gives too much weight to his observation that in a game the
rules of the game are constitutive of the actions. In cases in which an action is entirely
constituted by the rules of a practice, then of course the relevant merits and demerits will
be thus constituted as well. For example, if in hockey a player is sent to the penalty box
for high-sticking, no question of his needing to be penalized arises independently of the
 19

rules of hockey. His action is constituted by the rules; the ‘demerit’ of his infraction is
likewise constituted by the rules. However, not all practices are purely conventional, as
typically are games. For those that are not, the propriety of ‘assignments’ may depend
on considerations besides the rules of the practice and thus on a viewpoint external to the
practice.50
Now all of this becomes extremely pressing for Rawls in relation to the question
of how the office of ‘free and equal person’ is to be assigned. Without question, Rawls
unfolds with great nuance and subtlety what is bound up in the notion of someone’s
taking on the role of ‘free and equal person’ in relation to others who occupy that same
role as well. However, after the role is explicated the difficulty remains of which beings
in the world are appropriately assigned to these roles. Who are the free and equal
persons? Which existing things are to count as such? Rawls standardly uses the phrase,
“conceived of as free and equal persons”, but whereas this is immensely helpful for
leading us to reflect on what is bound up with that role, it of no use whatsoever for
helping us answer the question of appropriate ‘assignment.’ For that we would need to
know what beings should be conceived of as free and equal, and clearly that question
cannot be answered by reference to rules or principles that tell us no more than what it is
like to associate or to relate as a free and equal person.

Rawls’ Rejection of Human Dignity

Now so far I have said that Rawls has a blind-spot as regards the problem of assignment.
He has this blind-spot, because he is preoccupied with solving the ‘walking away’
problem, and also because he mistakenly presumes that the roles and actions within every
practice are constituted by the rules governing that practice, as they are in purely
conventional and relatively trivial practices such as games. But this means, of course,
that he has a blind-spot as regards human dignity, because the conception of human
dignity, as we have seen, involves, first, the recognition that each human being has
intrinsic worth, and, second, the drawing out of consequences for appropriate treatment,
in view of this intrinsic worth—which would involve some kind of ‘assignment’ of an
equal position in political society to each. The conception of human dignity gives an
answer to the question of what beings should be conceived as free and equal: any human
being should be conceived of in this way.
Yet it is not merely that Rawls has a blind-spot as regards human dignity. There
are important considerations in his philosophical development that actually compel him
to reject the conception of human dignity. To see that this is so, we must consider a
drastic turn in Rawls philosophy, which takes place between the publication of Theory of
Justice and his Dewey lectures in Columbia University nine years later. The change has
to do with how Rawls puts aside certain views that he develops in Theory of Justice about
what he there refers to as the ‘basis of equality’.
The problem of the ‘basis of equality’, as Rawls understands it, is precisely a
problem of ‘assignment’:
Our conduct toward animals is not regulated by [the two principles of
justice], or so it is generally believed. On what grounds then do we
distinguish between mankind and other living things and regard the
50
A good example of a convention not instituted would be the words we use for things.
 20

constraints of justice as holding only in our relations to human persons?

We must examine what determines the range of application of conceptions
of justice.51
However, it should be said that Rawls raises this question about the ‘basis of equality’ not
for its own sake, but rather as part of a wide-ranging discussion, in this part of Theory of
Justice, of whether justice as fairness coheres with important beliefs that we have about
nature and human psychology.52 In particular, Rawls seems unconcerned about ‘getting
it wrong’: he does not seem deeply troubled by the possibility that one might make the
mistake of not counting as equals those who should so counted.53 For instance, when
Rawls suggests that a mere ‘capacity for moral personality’ is a sufficient condition for
being treated as an equal, and he wonders whether this should also serve as a necessary
condition, he writes in the following manner:
That moral personality suffices to make one a subject of claims is the
essential thing. We cannot go far wrong in supposing that the sufficient
condition is always satisfied [sc. in any human being]. Even if the
capacity were necessary, it would be unwise in practice to withhold justice
on this ground. The risk to just institutions would be too great.
Rawls is surely correct to say here that a line should be drawn generously, so that we are
‘better safe than sorry’.54 Yet the way he characterizes the mistake has a strange ring to
it: if the line is drawn too ungenerously, then institutions are at risk; it’s not that some of
our fellows may be treated unjustly.55
Similarly, in some places Rawls says things that sound very much like he is
endorsing a conception of human dignity: for instance, he says that the equality of rights
specified by the first principle of justice is “owed to human beings as moral persons”;56

51
Note how naturally Rawls speaks here of ‘mankind’, which he distinguishes from ‘other living things’ as
a natural kind.
52
For instance: “Equality is supported by the general facts of nature and not merely by a procedural rule
without substantive force” (510). In what is surely one of the most bizarre discussions of the treatise,
Rawls in the section immediately preceding (§76, “Relative Stability”) conjectures that it is most likely that
the process of natural selection would have worked so that human beings did not acquire the desire of
‘universal benevolence’ (which some utilitarians attributed to human nature) but rather the balance between
self-interest and a sense of justice which constitutes the ‘conditions of justice’ required in Rawls’ theory:
“Therefore one might conjecture that the capacity to act from the more universal forms of rational
benevolence is likely to have been eliminated [by natural selection], whereas the capacity to follow the
principles of justice and natural duty in relations between groups and individuals other than kin would be
favored” (503-4).
53
I once heard a woman liken the concern she had for justice to the way she would feel if by mistake she
had run over her own child when backing out the car from the driveway: it’s the sort of thing you want to
avoid at all costs. One notes that absent from Rawls’ discussion is any approximation to this attitude.
54
Note that tellingly such a consideration is nowhere to be found in the way he sets up the problem of
abortion in the footnote to Political Liberalism.
55
Yet at one point Rawls takes pains to clarify that, as he sees it, his articulating the basis of equality does
not “presuppose an assessment of the intrinsic worth of persons, or a comparative evaluation of their
conceptions of the good” (510), perhaps his thought is that the claim that “A and B have equal intrinsic
worth” opens the door to claims that “A and B have different intrinsic worth”, and thus claims of intrinsic
worth must be avoided altogether; but we saw how this move need not become available given the
‘commonsense metaphysics’ of natural kinds, according to which to say that two members of a kind are
equal just is to say that claims of the form “A is more that kind than B” have no purchase.
56
Theory of Justice, 511. Rawls also defends his view as one that holds that “equality ... rest[s] on natural
attributes” (507).
 21

and that “A being that has this capacity, whether or not it is yet developed, is to receive
the full protection of the principles of justice.” 57 However, he also speaks as if this view
is an artifact of a contingent condition of reflective equilibrium, which could be jettisoned
someday without any consequent harm to justice: “Since infants and children are thought
to have basic rights (normally exercised on their behalf by parents and guardians), this
interpretation of the requisite conditions seems necessary to match our considered
judgments”.58 So we think of them: but what if we didn’t?
Perhaps the most noteworthy point on which Rawls will later reverse himself is
his insistence in this discussion that human equality cannot rest on a purely procedural
principle. A principle of pure procedural equality59 is inadequate—Rawls correctly
notes—because “it puts no restrictions upon what grounds may be offered to justify
inequalities. There is no guarantee of substantive equal treatment, since slave and caste
systems (to mention extreme cases) may satisfy this conception”.60 Rawls observes
additionally that even a principle of procedural justice has to pick out some class among
which the presumption of equality first holds. To make this point he once again invokes
the commonsense metaphysics of natural kinds: “Surely it applies to creatures who
belong to some class, but which one? We still need to identify a natural basis for equality
so that this class can be identified.”61 His point is that we presume that it applies to
human beings; but if we make this presumption, we might as well presume that there is a
basis for substantive equality in human nature.
Thus Rawls when he writes Theory of Justice comes very close to offering an
account of human dignity. Why does he turn away from this in his later writings?62
Yes, of course, it is obvious that, in giving an account of the ‘basis of equality’, Rawls is
relying on philosophical and metaphysical notions; and in Political Liberalism he insists
that political philosophy should apply the Principle of Toleration to itself, and thus it
should not rely on philosophical or metaphysical notions. To that extent, he has to reject
what he says about the ‘basis of equality’. But that is only to put a name on the
difficulty. What we want to know is why Rawls thinks he needs to invoke ‘the Principle
of Toleration’ for political philosophy in the first place, and why, in particular, he insists
on applying that principle to the identification of the very grounds of human equality.
Would not justice require that that basis, if it were ever sound, should be kept fixed
always? On what line of thought would such an extreme measure appear necessary?

57
“A being that has this capacity, whether or not it is yet developed, is to receive the full protection of the
principles of justice”, Theory of Justice, 509.
58
Theory of Justice, 509.
59
“...to say that human beings are equal is to say that none have a claim to preferential treatment in the
absence of compelling reasons. The burden of proof favors equality: it defines a procedural assumption
that persons are to be treated alike”, TJ 507.
60
This “guarantee of substantive equal treatment” must itself be substantive, that is, drawn in the right
place, because it will clearly be insufficient to reject pure procedural equality only in the case (say) of white
men. Rawls is maintaining, of course, that the guarantee needs to extend to all of ‘mankind’.
61
TJ 508.
62
Perhaps the most astonishing text where he does so is in the “Philosophers’ Brief”, to which Rawls was a
signatory, which in its references to Casey goes so far as implicitly to provide a rationale for infanticide, as
it suggests that to require a woman to care for even her born child is unfair would be to impose upon her a
conception of the value of sacrifice on behalf of others that she would not be unreasonable to reject (II.A,
New York Review of Books, Volume 44, Number 5, March 27, 1997).
 22

In other words, we are asking once again, but from a slightly different point of
view, about the reason for the change in Rawls’ outlook from Theory of Justice to
Political Liberalism. I said earlier that the change was motivated by Rawls’ wanting to
solve the problem of walking away, which is the problem of stability. And one way of
characterizing what happens, in the change, is that Rawls ends up placing considerations
of stability, as he understands it, over considerations of human dignity.
To appreciate that this is so, we should remind ourselves once more of how
astonishing Theory of Justice was in its revival of Kantianism as a moral theory of equal
weight to utilitarianism; and, as reviving Kantianism, Theory of Justice was providing an
account of ‘moral personality’ just as much as providing an account of justice. At several
points throughout his career, Rawls observes that Sidgwick, in Methods of Ethics, had not
even thought to include Kantianism, along with utilitarianism and egoism, as an ethical
system worthy of careful attention. Rawls judges that one of the achievements of Theory
of Justice is that he had remedied deficiencies in Kantianism which made it appear
merely formalistic and had caused Sidgwick to underestimate its power.
Perhaps the most important element in the Kantianism of Theory of Justice, and
no doubt philosophically the deepest, was Rawls’ sustained argument that the Kantian
theory of justice as fairness is more satisfactory than utilitarianism, because utilitarianism
misconceives the nature of a person. Rawls argues that because utilitarianism regards
persons as mere containers for pleasurable and painful experiences, it rubs out the
‘distinction between persons’. In utilitarian calculations it makes no difference how
pleasurable or painful experiences are distributed; from the point of view of
utilitarianism, it is only important that they occur, not for whom they occur, or in what
proportion, or whether their distribution satisfies any requirements of equality or
reciprocity. In contrast, Rawls says, Kantianism understands justice as precisely a
manner of associating with others, marked by reciprocity and equality, among those who
occupy the ‘office’ or ‘role’ of a moral person. Kantianism so conceived comes along
with a fairly rich metaphysics of moral powers and a ‘sense of justice’, and even (as we
have seen) an explication of the basis for human equality as founded in the nature of
things. The point is that Rawls harnesses his critique of utilitarianism to a very rich
understanding of distinct persons as occupying definite ‘offices’ and standing toward one
another with clearly defined juridical relations. His language of persons in Theory of
Justice not infrequently has an almost medieval and archaic sound to it; it is without
question old-fashioned and even slightly quirky. Yet immediately it is precisely this
feature of the book that gains the attention of the philosophical community, since Rawls
revives Kant, reintroduces ‘grand theory’, and from this basis presents a very
fundamental critique of utilitarianism.
This is 1971. Not two years later, Derek Parfit writes “Later Selves and Moral
Principles” and begins to develop a line of argument that he will state most fully over a
decade later in Reasons and Persons. Parfit accepts Rawls’ fundamental idea, that
utilitarianism is bound up with the conception of a person as simply a ‘container’ of
experiences. The difficulty is, Parfit also argues, on the basis of recent developments in
psychology, and subtle philosophical considerations involving personal identity, that
persons are no more than containers of experiences. But, if so, then on the very grounds
that Rawls had urged, utilitarianism is the true moral theory, and Kantianism should be
rejected. Thus Rawls’ most basic idea is overthrown; Kantianism is shown to be an
 23

antique view; and the Theory of Justice, which relied as we have seen so heavily on
Kantian moral philosophy, gets placed in the dustbin of philosophical history as one more
theory which gets refuted by the next clever philosopher who comes along—only this
book, which was 20 years in the making, had the misfortune being refuted almost as soon
as it was published.
So what does Rawls do? Well, he regroups and begins to reformulate his theory
almost immediately. In 1975 he gives his Presidential Address to the APA, on the topic
of “The Independence of Moral Theory”. In his address, he raises the question of
whether Parfit-type arguments and recent developments in philosophy of mind create a
problem for Kantian moral philosophy:
...for a Kantian these facts may appear to pose a problem: [Kantianism]
relies on a more comprehensive pattern of identities and its ideal of the
person encourages stronger and longer-lasting continuities [sc. among
separable psychological experiences]. Thus we are led to ask whether the
conclusions of the philosophy of mind and the shifting and sometimes
short-term character of mental connections favor the classical utilitarian
theory.63
Rawls’ replies that Kantianism should be regarded as independent of such things. The
Kantianism he favors should not be regarded as starting from an identifiable and prior
notion of a human person, which is regarded as ‘true’, and which serves as a foundation
for political theory. Such a notion could after all be proved false; indeed, it might even
be ‘false’ if considered as a thesis in the philosophy of mind. Rather, a ‘person’ in
Kantian moral theory should be regarded structurally, as simply some continuous stream
of experiences which plays a certain role in a social structure marked by reciprocity.
What we call a ‘person’ is an achievement within such a social structure; it is a bundling
of experiences made possible by the existence of such a structure, not something which
exists prior to that structure:
... the actual continuities and sense of purpose in people’s lives is relative
to the socially achieved moral conception.
Thus the essential point is whether the well-ordered society
corresponding to a moral conception generates in its members the
necessary continuities and sense of purpose to maintain itself. We also
have to take into account whether it is sufficiently stable, and the like. But
a utilitarian view would be supported by the general possibility of
discontinuities only if social theory showed that in the case of other
conceptions the requisite connectedness could never be brought about.64
In this paragraph we find the crucial move by which Rawls definitively rejects the notion
of the dignity of the human person and turns instead to a notion of personhood as socially
constructed.65 Moreover, since his concern in particular is how personhood is

63
CP 300.
64
CP 301.
65
Note that this move serves to explain something that might seem puzzling at first, namely, why Rawls, in
basic agreement with the Supreme Court in Roe and Casey, will later hold that there is a realm of the
‘private’ which is also governed by the most fundamental principles regulating political society. At first,
such a claim might seem strange: Isn’t it the case that only the institutions of the ‘basic structure’ are
constituted by the rules which govern the ‘practice’ of political association? What does the realm of
intimate, personal privacy have to do with the ‘basic structure’ of political society? But the answer is that,
 24

‘sufficiently stable’ over time, this passage also signals, one might say, the complete
subordination in Rawls’ philosophy of any notion of human dignity to considerations of
stability.66 A concern with truth must be jettisoned as well, on similar grounds, because a
theory that claims to be true might be shown to be false. Thus Rawls will later say in his
Dewey lectures, “the essential agreement in judgments of justice arises not from the
recognition of a prior and independent moral order, but from everyone’s affirmation of
the same authoritative social perspective”.67 Any recognition of a prior and independent
moral order, Rawls thinks, would expose his account to the possibility of being shown
false, in the manner in which Parfit’s arguments had threatened, and then once again the
problem of ‘walking away’ would arise. “This conception is not regarded as a workable
approximation to the moral facts: there are no such moral facts to which the principles
adopted could approximate.”68

Conclusion

We may say in conclusion that, without any question, “justice as fairness” is incapable of
accounting for, capturing, or modeling, what we have called the standard conception of
human dignity. The reason is that justice as fairness aims to explain the claims of
morality as the claims inherent in a practice, but it cannot succeed in representing the
claims inherent in a practice, if it allows appeal to an external viewpoint of assessment,
and yet that is precisely what the conception of human dignity requires. Combine this
result with our earlier conclusion, and one has an argument for the comparative
preferability of the political conception of human dignity—insofar as this can
accommodate, as we have seen, all of the sound claims that can be urged against it from
the point of view of Political Liberalism, but Political Liberalism is patently incapable of
accommodating the claims of the political conception of human dignity.
This result is, as it were, an ‘external’ objection to justice as fairness, although no
less powerful for all that. However, one may also inquire as to whether this result bears
upon justice as fairness as considered on its own terms. If justice as fairness does not and
cannot succeed in capturing a notion of human dignity, in what way would this amount to
an objection to justice as fairness, given what it, by its own lights, aims to accomplish? If
Rawls insists that justice as fairness is a political conception, in his way of understanding
that, then what is the difficulty if justice as fairness refuses to adopt a position on those
substantive moral claims that Rawls had advanced in Theory of Justice?

on Rawls’ viewpoint, and on the viewpoint of Political Liberalism, personhood itself is constituted by the
practices of political society. In this regard it is often overlooked that the sentence following the notorious
Mystery Passage in Casey asserts explicitly that personhood is constructed through choices such as the
choice to have an abortion: “At the heart of liberty is the right to define one's own concept of existence, of
meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State.” However, one might wonder
the constructivist view of the person at the same time undermines the significance of a ‘the right to privacy’
as construed by Casey, as there would simply be nothing that could be affirmed about persons that is there
to be appropriately expressed, or not, prior to the socially constructed identity of the person.
66
The account given here of why Rawls
67
“Construction and Objectivity”, VI, CP 356.
68
“Construction and Objectivity”, III, CP 350.
 25

Yet there is a difficulty internal to the theory itself, since arguably, given how it
develops, and what motivates that development, Rawls’ philosophy changes from what
could purport to be a theory of justice, to what could claim at best to be a theory of social
stability.69 It seems to be of the nature of justice, that a theory of justice, which needs
provide an ideal for justice, could not be (say) only 99% right, or right by approximation,
or right accidentally. A theory which, for instance, simply wrote off some injustices as
unimportant or irrelevant, could not claim to be a theory of justice.70 But by the same
token, it would seem, any theory which refused even to take up the question, which is
surely legitimate, of whether all genuine subjects of justice are treated accordingly,
cannot claim to be a theory of justice.71 It leaves open the question of whether the ideal
of justice it is proposing is just only by accident.
Considered as a theory of social stability, Political Liberalism would not of course
be conservative. Political Liberalism does not identify stability with conservativism or
changelessness. Indeed, even in the 15 years or so in which Rawls was articulating it,
Political Liberalism became increasingly more progressive (from a plain political point of
view), just as the consensus of political liberals (in the plain political sense of that term)
shifted and became increasingly progressive—so that by the end of his life Rawls had
become, for instance, a fairly impassioned critic of the family as a transmitter of
inequality, and of marriage as, in his view, an inherently discriminatory institution.
Insofar as it aims to provide a theory of social stability for an inherently progressive
political outlook, justice as fairness would surely be an interesting and unusual project.
But to the extent that the theory is put into practice it would seem to be doomed to
failure, as Political Liberalism itself serves to unravel those natural sources of social
stability upon which it depends, but which it can neither account for nor, on its own
principles, endorse.

Cambridge, Massachusetts, February 2007

69
One might conjecture that this conclusion provides the clue to understanding the Supreme Court’s appeal
to social stability in Casey. Note that the Court does not rely on traditional views of reliance in judging
whether Roe is not protected by stare decisis; rather, the Court’s view is stated explicitly in the language of
‘defining oneself’ as a person: “... for two decades of economic and social developments, people have
organized intimate relationships and made choices that define their views of themselves and their places in
society, in reliance on the availability of abortion in the event that contraception should fail” (my
emphasis).
70
Hence the correctness of Rawls’ instincts when he wanted to draw the boundary for the ‘basis of
equality’ generously, so that no subjects of justice were inadvertently left aside.
71
Recall what was said on page 3 above: “if [human beings] are treated in such a way as would be
appropriate only if these powers were accidental to them or acquired, then they would not be treated
appropriately”. Another way of stating the difficulty in a theory such as Political Liberalism which does
not articulate a ‘basis of equality’, is that it effectively treats an intrinsic feature of human beings as if it
were not intrinsic.