John Rawls's Idea of an Overlapping Consensus

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RAWLS’ S IDEA OF AN OVERLAPPING CONSENSUS

(Willy Moka-Mubelo)

Our modern societies are pluralist societies, characterized by different beliefs and

loyalties. In such societies, it is not obvious to find a common ground from which values that

sustain them should be interpreted. The difficulty to find a common ground of interpretation

raises the question of maintaining unity and stability within society: how should stability and

unity be maintained in a society constituted by different, and sometimes conflicting,

comprehensive views?

In order to respond to this question, John Rawls introduces the idea of an overlapping

consensus between different reasonable religious, philosophical, and moral doctrines. In dealing

with the idea of an overlapping consensus Rawls wants to “consider how the well-ordered

democratic society of justice as fairness may establish and preserve unity and stability given the

reasonable pluralism characteristic of it.”1 In other words, Rawls’s use of the idea of an

overlapping consensus aims at making the idea of a well-ordered society more realistic and in

tune with historical and social conditions of democratic societies. As he expresses it in Justice as

Fairness: A Restatement, “the idea of an overlapping consensus is introduced to make the idea of

a well-ordered society more realistic and to adjust it to the historical and social conditions of

1 John Rawls, Political Liberalism (New York: Columbia Unversity Press, 2005), 133-134.

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democratic societies, which include the fact of reasonable pluralism.”2 In Political Liberalism,

Rawls adds new elements in his explanation. He “considers how the well-ordered democratic

society of justice as fairness may establish and preserve unity and stability given the reasonable

pluralism characteristic of it.”3 “In such a society,” says Rawls, “a reasonable comprehensive

doctrine cannot secure the basis of social unity, nor can it provide the content of public reason on

fundamental political questions. Thus, to see how a well-ordered society can be unified and

stable, we introduce another basic idea of political liberalism to go with the idea of political

conception of justice, namely, the idea of an overlapping consensus of reasonable

comprehensives doctrines.”4

As it can be noticed from what precedes, the idea of an overlapping consensus is related

to the notion of stability and unity of the political society. For a society to remain stable over

time, conflicting loyalties must lead to a common understanding – which is not necessary a

common interpretation – of values upon which society should be built. In other words, the idea

of an overlapping consensus is introduced when the question of stability is discussed.

In this paper, I will first consider the main question of political liberalism on which

depends Rawls’s project of revising the idea of justice as fairness that he presented in A Theory

of justice. The second point of the paper will focus on the idea of justice as fairness, understood

as a political conception of justice. The third point will deal with the idea of an overlapping

consensus and will examine the objections to the idea of an overlapping consensus.

2 John Rawls, Justice as Fairness: A Restatement, ed. Eerin Kelly (Cambridge, Massachusetts: Harvard

University Press, 2001), 32.

3 Rawls, Political Liberalism, 133.

4 Ibid., 134.

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1. The Main Question of Political Liberalism

A better understand of the idea of an overlapping consensus requires a consideration of

the main question that serves as a guideline to the project of Political Liberalism and upon which

depends the rest of Rawls’s reflection in this project. The question goes as follows: “how is it

possible for there to exist over time a just and stable society of free and equal citizens, who

remain profoundly divided by reasonable religious, philosophical, and moral doctrines?”5 In the

first introduction of Political Liberalism Rawls brings out the fact that those doctrines, though

reasonable, can be incompatible with one another. Thus, the question slightly changes and

becomes: “how is it possible that there may exist over time a stable and just society of free and

equal citizens profoundly divided by reasonable though incompatible religious, philosophical,

and moral doctrines?”6

In asking this question, Rawls acknowledges that a democratic society is characterized by

a plurality of doctrines that are not necessarily compatible with one another. Given this diversity

of doctrines, how can stability of such a society be guaranteed? Considering the main question of

political liberalism is of crucial important. Not only does it continue the idea of justice we find in

A Theory of justice, but also it revises that idea by taking into account the reality of a modern

democratic society, constituted by a diversity of incompatible and irreconcilable doctrines. As

Rawls notes, “[this] diversity of reasonable comprehensive religious, philosophical, and moral

doctrines found in modern democratic societies is not a mere historical condition that may soon

pass away; it is a permanent feature of the public culture of democracy.”7 In addition to this fact,

5 Ibid., 4.

6 Ibid., xviii.

7 Ibid., 36.

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there are two other general facts that characterize the political culture of a democratic society: “a

continuing shared understanding on one comprehensive religious, philosophical, or moral

doctrine can be maintained only by the oppressive use of state power.”8 The third general fact

reads as follows: “an enduring and secure democratic regime, one not divided into contending

doctrinal confessions and hostile social classes, must be willingly and freely supported by at least

a substantial majority of its politically active citizens.”9

These characteristics of the political culture of a democratic society bring out the

necessity of maintaining diversity of opinions and their expressions, which are indispensable to

the dynamic of a democratic society. No one can impose his or her comprehensive religious,

philosophical, or moral doctrine on the rest of the political society under the pretext of securing

stability within society. To behave in such a way would be an oppressive use of state power

because it is inconceivable to think of a political society as “a community united in affirming one

and the same comprehensive doctrine.”10 Rather, members of a political society must reach an

agreement or consensus that takes into consideration different points of view and the diversity

that constitutes the community. In order to avoid any misuse of political power, Rawls suggests a

principle of justice on which conflicting doctrines can agree and support from their own

perspectives. Such a principle must be freestanding. It should not be determined by any

comprehensive doctrine. Rawls names that principle “justice as fairness.”

8 Ibid., 37.

9 Ibid., 38.

10 Ibid., 37.

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2. Justice as Fairness: A political Conception of Justice

For Rawls, justice as fairness “tries to adjudicate between contending traditions, first by

proposing two principles of justice to serve as guidelines for how basic institutions are to realize

the values of liberty and equality; and second, by specifying point of view from which these

principles can be seen as more appropriate than other familiar principles of justice to the idea of

democratic citizens viewed as free and equal persons.”11 The two Rawlsian principles of justice

that serve as guidelines are stated as follows: (1) Each person has an equal claim to a fully

adequate scheme of equal basic rights and liberties, which scheme is compatible with the same

scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be

guaranteed their fair value. (2) Social and economic inequalities are to satisfy two conditions:

first, they are to be attached to positions and offices open to all under conditions of fair equality

of opportunity; and second, they are to be to the greatest benefit of the least advantaged members

of society.12

The question these principles raise in the reader’s mind is: how do we come to such

principles? Or, how are these principles developed? In A Theory of Justice, Rawls shows that this

development is accomplished by virtue of the neutrality of the “original position.” Being behind

a veil of ignorance – ignoring their place in society, their class position or social status, their

conceptions of the good – free and rational persons, in a situation of total equality, choose

principles of justice for the basic structure of society. These principles, notes Rawls, “are to

regulate all further agreements; they specify the kinds of social cooperation that can be entered

11 Ibid., 5.

12 Ibid., 5-6.

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into and the forms of government that can be established.”13 Given the fact that people are

behind a veil of ignorance, the choice is made in such a way that “no one is advantaged or

disadvantaged in the choice of principles by the outcome of natural chance or the contingency of

social circumstances.”14 Thus, the principles of justice that have been chosen are the result of a

fair agreement and can serve as the conception of justice that has to regulate further agreements.

In introducing the idea of the original position, Rawls wants to detach the political

conception of justice of his political liberalism from any particular comprehensive doctrine in the

same way that the choice of the principles of justice is detached from human inclinations and

biases so as to make it serve as the focus of an overlapping consensus. He writes,

The reason the original position must abstract from and not be affected by the contingencies of the social world is that the conditions for a fair agreement on the principles of political justice between free and equal persons must eliminate the bargaining advantages that inevitably arise within the background institutions of any society from cumulative social, historical, and natural tendencies. These contingent advantages and accidental influences from the past should not affect an agreement on the principles that are to regulate the institutions of the basic structure itself from the present into the future.15

Rawls’s idea of the original position is modeled on the social contract theory. In A Theory

of justice he specifies that “in justice as fairness the original position of equality corresponds to

the state of nature in the traditional theory of the social contract. This original position… is

understood as a purely hypothetical situation characterized so as to lead to a certain conception

of justice.”16 This raises two questions: (i) Given that Rawls’s theory of justice as fairness is

13 John Rawls, A Theory of Justice (Cambridge Massachusetts: Harvard University Press, 1999), 10.

14 Ibid., 11.


16 Rawls, A Theory of justice, 11.

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based on the idea of social contract, can we then affirm that a stable political society is sustained

by self-interests? Philosophers of social contract, such as Hobbes, hold that self-interest or self-

preservation is the main reason that leads people to agree on their living together in society. In

using the social contract model as the source of justice as fairness, is Rawls not leaving a room to

the bargaining advantages that inevitably arise within the background institutions of any society?

(ii) Are the principles of justice upon which the parties in the original position agree strong

enough to maintain stability in a society composed of persons with different, even opposed,

comprehensive doctrines?

This is what leads Michael G. Barnhart to think that Rawls’s political liberalism itself is a

comprehensive doctrine. In Barnhart’s view, “political liberalism may require much more

ideological conformity than Rawls appears to suggest. Rather than resting in an agreement to

disagree, liberal society, one might argue, rests in disagreement only about what does not really

matter.”17 Barnhart continues arguing that “a political conception of justice, the freestanding

element to which different comprehensive doctrines are committed, is always an abstraction out

of some, presumably local, comprehensive doctrine. Thus, such political conceptions are not

nearly as neutral as Rawls requires.”18

This criticism of Barnhart makes sense when we limit ourselves to the reading of A

Theory of justice where justice as fairness is used as a particular moral doctrine. This is no longer

the case in Political Liberalism. Here, justice as fairness becomes a political conception. As

Burton Dreben rightly notes, “justice as fairness is no longer part of a comprehensive moral

17 Michael G. Barnhart, “An Overlapping Consensus: A Critique of Two Approaches,” The Review of

Politics, Vol. 66, No. 2 (Spring 2004): 271.

18 Ibid., 272.

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doctrine, but it is a self-standing political conception.”19 Self-standing or freestanding is

precisely the characteristic of the political conception of justice that should regulate a well-

ordered society. Samuel Freeman clarifies this point by describing the distinctiveness of the

political conception of justice upon which society must be built. He writes:

What primarily distinguishes a political conception of justice is that it is “freestanding” or independent and without grounding in premises peculiar to metaphysical, epistemological, and general moral conceptions. A freestanding conception aims to “bracket” or avoid philosophical questions of the original source of moral principles, how we ultimately come to know them, and even the question of their ultimate truth.20

From what precedes, it clearly comes out that in Rawls’s understanding, a political

conception of justice must be neutral. It should not depend on a given comprehensive doctrine –

as Barnhart seems to suggest – but must be accepted by different groups engaged in a political

discussion. In the same line of thought, Thomas Pogge observes that Rawls hope is “for a free

society in which the widely held moral, religious, and philosophical worldviews overlap in

regard to a political conception of justice that justifies this society’s basic structure.”21 Simply

put, in a pluralistic society, the political conception of justice should be presented independently

of the religious, political, and moral comprehensive doctrines.

The idea of a political conception of justice is one of the characteristics of a well-ordered

society. Besides this idea, Rawls develops two other ideas in order to show how a just and stable

society of reasonable and rational people who look at one another as free and equals is possible.

19 Burton Dreben, “On Rawls and Political Liberalism,” in The Cambridge Companions to Rawls, ed.

Samuel Freeman (New York: 2002), 320.

20 Samuel Freeman, “Introduction: John Rawls – An overview,” in The Cambridge Companions to Rawls, ed. Samuel Freeman (New York: 2002), 33.

21 Thomas Pogge, John Rawls: His life and Theory of Justice (Oxford: Oxford University Press, 2007), 35.

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The two other ideas are: the idea of an overlapping consensus and the idea of public reason. In

the following paragraphs, I will limit myself to the idea of an overlapping consensus.

3. An Overlapping Consensus

Rawls, as noted previously, introduces the idea of an overlapping consensus to show how

a well-ordered society can be unified and stable. In other words, he intends to show “how

citizens, who remain deeply divided on religious, philosophical, and moral doctrines, can still

maintain a just and stable democratic society.”22 In his article of 1985, Justice as fairness:

Political not Metaphysical, he describes an overlapping consensus as “a consensus in which

different and even conflicting doctrines affirm the publicly shared basis of political

arrangements.”23 In the first footnote of the article entitled The Domain of the Political and

Overlapping Consensus, Rawls stresses that “an overlapping consensus exists in a society when

the political conception of justice that regulates its basic institutions is endorsed by each of the

main religious, philosophical, and moral doctrines likely to endure in that society from one

generation to the next.”24

The question that can be raised with regard to Rawls’s reference to the political

conception of justice as the focus of an overlapping consensus is: why should a conception of

justice be the focus of an overlapping consensus? The answer to this question might be provided

by what Rawls calls the content of a liberal conception of justice. In his response to the objection

to the idea of an overlapping consensus, which is considered to be utopian, Rawls uses the idea


23 John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, Massachusetts: Havard University Press, 1999), 410.

24 Ibid., 473, note 1.

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of a liberal conception of political justice so as to “outline one way in which such a consensus

might come about and its stability made secure.”25 He points out three main elements: (i) a

specification of certain basic rights, liberties, and opportunities, (ii) an assignment of a special

priority to those rights, liberties, and opportunities, and (iii) measures assuring to all citizens

adequate all-purpose means to make effective use of their basic liberties and opportunities.26

After mentioning these three elements, Rawls develops the idea of a liberal conception of

political justice in a more detailed way in order to show that any reasonable citizen, regardless of

the comprehensive doctrine he or she supports, can accept it. He writes:

A fuller idea of the content of a liberal conception of justice is this: (1) political authority must respect the rule of law and a conception of the common good that includes the good of every citizen; (2) liberty of conscience and freedom of thought are to be guaranteed, and this extends to the liberty to follow one’s conception of the good, provided it does not violate the principles of justice; (3) equal political rights are to be assured, and in addition freedom of the press and assembly, the right to form political parties, including the idea of a loyal opposition; (4) fair equality of opportunities; and (5) all citizens are to be assured a fair share of material means so that they are suitably independent and can take advantage of their equal basic rights, liberties, and fair opportunities.27

This content of the liberal conception of justice seems to be the best explanation of why a

conception of justice should be the focus of an overlapping consensus. Whether one is a

Christian, a Muslim, a Buddhist, or an Atheist, he or she will agree on such a conception. This

content highlights the fact that, despite the diversity of comprehensive doctrines, there are certain

values on which different people holding conflicting comprehensive doctrines can still agree and

can endorse. Thus, for Rawls, the consensus we are looking for, cannot be reached by leaning on

25 Ibid., 440.

26 Ibid., 440.

27 Ibid., 440, note 27.

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a particular comprehensive doctrine; for, “no comprehensive doctrine is appropriate as political

conception for a constitutional regime.”28 Given its neutrality, a political conception of justice

constitutes the focus of an overlapping consensus. Differently put, the idea of an overlapping

consensus helps us understand that it is possible for reasonable human beings to live together in a

political society despite their doctrinal differences.

In Rawls words, “the point of the idea of an overlapping consensus on a political

conception is to show how, despite a diversity of doctrines, convergence on a political

conception of justice may be achieved and social unity sustained in long-run equilibrium, that is,

over time from one generation to the next.”29 Such a co-existence is guaranteed when people are

regarded and regard themselves as reasonable people. For Rawls, people are reasonable “when,

among equals they are ready to propose principles and standards as fair terms of cooperation and

to abide by them willingly, given the assurance that others will likewise do so.”30 As it can be

noticed, an overlapping consensus is about the consensus of reasonable comprehensive doctrines.

It is important to put the emphasis on the adjective “reasonable” because there can be

unreasonable and irrational comprehensive doctrines. The idea of reasonable, affirms Rawls,

makes an overlapping consensus of reasonable doctrines possible in ways the concept of truth

may not.31

Rawls’s idea of an overlapping consensus is not unanimously accepted. There are some

objections to this idea. I will consider the four objections that Rawls himself mentions. The first


29 Rawls, Collected Papers, 426.


31 Ibid., 94.

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objection considers an overlapping consensus to be merely a modus vivendi, which abandons the

hope of a political community. Rawls’s response to this objection starts by clarifying that “the

hope of political community must indeed be abandoned, if by such a community we mean a

political society united in affirming the same comprehensive doctrine.”32 For Rawls, an

overlapping consensus is not a modus vivendi. The danger of equating an overlapping consensus

with a modus vivendi resides in the fact that it can be reduced to a series of arbitrary

compromises that express the will of a minority of the community, which is imposed upon the

entire community. It can also be reduced to a way of accommodating personal interests. In that

sense, I agree with Rawls that an overlapping consensus cannot be a modus vivendi. It cannot be

founded on the self-interest of particular individuals or of a group of individuals. Therefore, an

overlapping consensus should be distinguished from a political agreement because, as Rawls

points it out, “an overlapping consensus is not merely a consensus on accepting certain

authorities, or on complying with certain institutional arrangements, founded on a convergence

of self- or group interests.”33

An overlapping consensus must have a moral object, a moral ground, and should be

stable. This means that even those whose influence becomes dominant, should continue

supporting the political conception of justice they accepted. As long as these three elements are

respected, everyone will support the political conception despite the inequality in the distribution

of political power. Keeping these elements together is of primordial importance. It allows

different parties to support the political conception for its own sake; not for the benefit one can

draw from it. Rawls draws our attention on the fact that “in the overlapping consensus, the

32 Ibid., 146.

33 Ibid., 147.

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acceptance of the political conception is not a compromise between those holding different

views, but rests on the totality of reasons specified within the comprehensive doctrines affirmed

by each citizen.”34

From what precedes, it follows that rejecting the idea of an overlapping consensus on the

basis that a political society can be sustained merely as a modus vivendi is not sufficient. The

dynamic of a modus vivendi, as previously noted, is founded on an agreement that tends to

accommodate conflicting interests. Most adherents of these interests support the agreement in

order to promote their own values. Such an agreement will guarantee the coexistence of different

views as long as adherents believe it to be in their interest to support the established order. As

one can see, stability of a political society cannot be the result of such an agreement. Founding

the good of a community on precarious arrangements is a way of breaking down the institutional

order. For, whenever the interests of groups change, the institutional order must be renegotiated.

In such a scenario, rules become accommodating to those who can express their support to the

existing order, even if this can lead to discrimination against those who do poorly.

It goes without saying that understanding the idea of an overlapping consensus from the

perspective of a modus vivendi model does not guarantee the stability of the political society. “A

modus vivendi,” notes Thomas Pogge, “involves serious danger: A group whose power declines

in relative terms will have to accept revisions of the institutional order that will weaken it

further… Understanding the danger, any participant in a modus vivendi will tend to give

precedence to protecting and augmenting its power over honoring its moral values and

principles.”35 On the contrary, an overlapping consensus seeks “an institutional order that all

34 Ibid., 170-171.

35 Thomas Pogge, John Rawls: His Life and Theory of Justice, 36.

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participants can morally endorse on the basis of their diverse moral, religious, or philosophical

worldviews.”36 Simply put, the idea of an overlapping consensus “envisions an institutional order

that the various groups endorse as just and are willing to support, even through changes in their

respective interests and relative power.”37 Such an institutional order can guarantee stability

because it is not a transitory result of negotiations. From this, we can affirm that an overlapping

consensus is neither a political compromise nor a modus vivendi.

The second objection to the idea of an overlapping consensus on a political conception of

justice is that “the avoidance of general and comprehensive doctrines implies indifference or

skepticism as to whether a political conception of justice can be true, as opposed to reasonable in

the constructivist sense.”38 In other words, this objection considers the overlapping consensus to

be an attitude of indifference or skepticism vis-à-vis the truth of a political conception of justice.

It holds that an overlapping consensus avoids or rejects general and comprehensive doctrines. In

the view of those supporting this objection, the idea of an overlapping consensus does not take

into account the existing comprehensive doctrines. Rather, it presents a political conception of

justice on which different parties must agree without questioning. Such an objection seems to

ignore that the avoidance or rejection of comprehensive doctrines cannot be possible because –

as Rawls emphasizes it – people “accept the political conception as true or reasonable from the

standpoint of their own comprehensive view, whatever it may be.”39 No party is requested to

reject its own comprehensive doctrine in order to accept the political conception of justice that

36 Ibid., 36.

37 Ibid., 37.


39 Ibid., 150.

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constitutes the focus of an overlapping consensus. Rather, that conception is understood and

interpreted, by each party, from its own system of values.

The third objection to the idea of an overlapping consensus states that “a workable

political conception must be general and comprehensive. Without such a doctrine on hand, there

is no way to order the many conflicts of justice that arises in public… It is useless to try to work

out a political conception of justice expressly for the basic structure apart from any

comprehensive doctrine.”40 According to this objection, existing comprehensive doctrines should

be the starting point of the political conception of justice upon which the overlapping consensus

will focus. In order to respond to such an objection we have to stress the neutrality of a political

conception of justice. For Rawls, the conception of justice on which people should agree must be

presented as independent of comprehensive religious, philosophical, and moral doctrines. It

should not be framed from existing doctrines. To proceed otherwise would equate the

overlapping consensus with a modus vivendi. This will be what Rawls describes as justice as

fairness being political in the wrong way. He writes, “A political conception is political in the

wrong way when it is framed as a workable compromise between known and existing political

interests, or when it looks to particular comprehensive doctrines presently existing in society and

then tailors itself to win their allegiance.”41 The idea of a political conception presupposes no

particular comprehensive doctrine. It must be free from any influence of existing comprehensive

doctrine.

The fourth objection to the idea of an overlapping consensus is that an overlapping

consensus is utopian. That is, there are not sufficient political, social, or psychological forces

40 Ibid., 154.

41 John Rawls, Justice as Fairness: A restatement, 188.

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either to bring about an overlapping consensus or to render one stable.42 In considering this

objection, I will just look at what can explain such a statement without going into details about

how Rawls himself responds to the objection. However, it is important to look at how Rawls

tackles the issue before proceeding to a possible explanation of such an objection.

In order to respond to the fourth objection to the idea of an overlapping consensus, Rawls

introduces the notion of constitutional consensus. “At the first stage of [this consensus],”

observes Rawls, “the liberal principles of justice, initially accepted reluctantly as a modus

vivendi and adopted into a constitution, tend to shift citizens’ comprehensive doctrines so that

they at least accept the principles of a liberal constitution.”43 This might be the reason why some

people can think of the constitution as the focus of an overlapping consensus. The question that

can be raised with regard to such an understanding is: how do we account for the neutrality of a

Constitution when the leading party influences the writing of the constitution by imposing its

political views and social policy? Should such a Constitution continue to be the focus of an

overlapping consensus? In case the answer is negative, then a Constitution cannot be that

political principle of justice, which is the focus of an overlapping consensus. If the answer is

positive, the neutrality of the political conception of justice that constitutes the focal point of an

overlapping consensus can no longer be supported.

Now, let’s go back to a possible explanation of the fourth objection. Those objecting that

an overlapping consensus is utopian can explain their position by the fact that Rawls does not

offer a concrete example about how an overlapping consensus can be possible between


43 Ibid., 163.

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incommensurable doctrines. Michael G. Barnhart,44 for example, is of the opinion that Rawls’s

idea of an overlapping consensus does not permit the overlapping of non-liberal comprehensive

doctrines on some politically liberal conception. The consensus seems to exclude non-liberal

doctrines. Yet, in a modern society both liberal and non-liberal comprehensive doctrines fashion

people’s daily life’s reflections and understanding of intersubjectivity. Barnhart thinks that it

would have been helpful if Rawls could give “an example where clearly incommensurable or

nonliberal comprehensive doctrines could overlap on some politically liberal conception.”45

Unlike Rawls, Charles Taylor offers a concrete example of such a consensus in his appropriation

of Rawls’s idea of an overlapping consensus. In his article Conditions of An Unforced Consensus

on Human Rights, Taylor responds to the question of how to come to a genuine, unforced

international consensus on human rights. He believes that an overlapping consensus on human

rights can be possible though people have different views:

That is, different groups, countries, religious communities, and civilizations, although holding incompatible fundamental views on theology, metaphysics, human nature, and so on, would come to an agreement on certain norms that ought to govern human behavior. Each would have its own way of justifying this from out of its profound background conception.46

Having acknowledged that human rights discourse owe its origin and development to

Western culture, Taylor admit that the idea of human rights can be found elsewhere though it is

not expressed in a Western “language.” A clear example of an overlapping consensus on human

rights is the right to life. Everybody agrees on the idea that life should be protected. Nobody has

44 Michael G. Barnhart, “An Overlapping Consensus: A Critique of Two Approaches,” 257-283.

45 Ibid., 274.

46 Charles Taylor, “Conditions of An Unforced Consensus on Human Rights,” in Joanne R. Bauer and Daniel A. Bell, The East Asian Challenge for Human Rights (New York: Cambridge University Press, 1999), 124.

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the right to take someone else’s life. The interpretation of how to protect life will depend on each

particular culture’s beliefs and on the approach of each comprehensive doctrine.

Another possible explanation of the objection according to which an overlapping

consensus is utopian is what one can call the incompatibility between the notion of trust and the

conditions that Rawls argues leads to an overlapping consensus. According to Lawrence E.

Mitchell, trust is what binds the overlapping consensus. For him, “interpersonal trust among

members of a reasonably just society and their trust in the institutional values of the social

structures and political mechanisms they construct and control are at the heart of what keeps this

society together.”47

It is important at this point to note that the idea of trust is present in Political Liberalism,

especially when Rawls speaks of reasonable moral psychology. He outlines five features of such

a psychology:

Besides a capacity for a conception of the good, citizens have a capacity to acquire conceptions of justice and fairness and a desire to act as these conceptions require; ii) when they believe that institutions or social practices are just, or fair (as these conceptions specify), they are ready and willing to do their part in those arrangements provided they have reasonable assurance that others will also do their part; iii) if other persons with evident intention strive to do their part in just or fair arrangements, citizens tend to develop trust and confidence in them; iv) this trust and confidence becomes stronger and more complete as the success of cooperative arrangements is sustained over a longer time; and v) the same is true as the basic institutions framed to secure our fundamental interests (the basic rights and liberties) are more firmly and willingly recognized.48

As we can notice from what precedes, the need for trust in the overlapping consensus is a

key issue. Both Rawls and Mitchell agree on that. However, Mitchell’s critique against Rawls is

47 Lawrence E. Mitchell, “Trust and the Overlapping,” Columbia Law Review 94, no. 6 (October 1994): 1918.


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related to the conditions that lead to the overlapping consensus. For Mitchell, “the conditions that

Rawls argues lead to overlapping consensus are not conditions under which trust can flourish.

Rawls’s reliance upon a plurality of perspectives to support the principles of justice that form the

overlapping consensus leads not to overlapping but to tangency.”49 Mitchell also raises the

question of institutional and interpersonal trust with regard to the idea of an overlapping

consensus: can the overlapping consensus sustain the conditions necessary for institutional and

interpersonal trust? If the answer is negative, says Mitchell, then it seems that the overlapping

consensus itself cannot be sustained without one or more of the motivating forces that Rawls

rejects.50 He concludes that Rawls’s idea of an overlapping consensus has failed “because he has

defined a pluralistic society in a way that supports his principles, rather than established

principles that bind a pluralistic society.”51

A careful reading of Mitchell’s critique reveals that he is more concerned about the

neutrality of the principle of justice that constitutes the focal point of an overlapping consensus.

Such neutrality does not suppress existing comprehensive doctrines. In other words, those

holding different comprehensive doctrines are not asked to abandon them in order to support the

overlapping consensus. Each citizen comes to overlapping consensus from the perspective of his

or her own comprehensive doctrine. The idea of an overlapping consensus is a compelling

conception that invites different groups “to move out of the narrower circle of their own views

and to develop political conceptions in terms of which they can explain and justify their

49 Mitchell, “Trust and the Overlapping Consensus,” 1918.

50 Ibid., 1921.

51 Ibid., 1934.

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preferred policies to a wider public so as to put together a majority.”52 Both Rawls and Mitchell

reach a consensus on the fact that trust is a very important element in maintaining and assuring

stability of an institution, be it political, economic or religious.

Conclusion

Rawls idea of an overlapping consensus has proven to be an important approach to the

issue of pluralism in modern societies. That is why someone like Charles Taylor applies it to the

question of human rights. In dealing with a political conception of justice that will be the focal

point of an overlapping consensus, Rawls notes two features of that political conception: “first, it

is expressly framed to apply to the basic structure of society; and second, it is not be seen as

derived from a general and comprehensive doctrine.”53 To these two features, Rawls adds a third

one, which “is not formulated in terms of a general and comprehensive religious, philosophical,

or moral doctrine but rather in terms of certain fundamental intuitive ideas viewed as latent in the

public political culture of a democratic society.”54

Despite its importance in dealing with pluralism, the idea of an overlapping consensus

remains confusing as long as Rawls does not offer a clear example that shows how

incommensurable doctrines can overlap when they deal with public policies. Besides this lack of

concrete examples, Rawls’s idea of an overlapping consensus seems to limit itself to liberal

comprehensive doctrines. Non-liberal doctrines are not dealt with. This raises the question of

lasting stability in modern society, given that such a society is constituted by both liberal and

non-liberal doctrines. Some people might object that this question is not relevant because Rawls


53 Rawls, Collected Papers, 426.

54 Ibid., 427.

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made it clear from the beginning that the idea of an overlapping consensus he introduced is more

concerned with reasonable liberal comprehensive doctrines. However, whether the question is

relevant or not, the reality is that modern societies are characterized by pluralism; not only by

reasonable pluralism, which is the focus of Rawls’s description of the idea of an overlapping

consensus.

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Bibliography

Barnhart, Michael G. “An Overlapping Consensus: A Critique of Two Approaches.” The Review of Politics 66, no. 2 (Spring 2004): 257-283.

Dreben, Burton. “On Rawls and Political Liberalism,” in The Cambridge Companions to Rawls edited by Samuel Freeman. New York: Cambridge University Press, 2002.

Mitchell, Lawrence E. “Trust and the Overlapping,” Columbia Law Review 94, no. 6 (October 1994): 1918-1935.

Pogge, Thomas. John Rawls: His life and Theory of Justice. Oxford: Oxford University Press, 2007.

Rawls, John. Political Liberalism. New York: Columbia Unversity Press, 2005.

_______., Justice as Fairness: A Restatement.edited by Eerin Kelly. Cambridge, Massachusetts: Harvard University Press, 2001.

_______. A Theory of Justice. Cambridge Massachusetts: Harvard University Press, 1999.

_______. Collected Papers, edited by Samuel Freeman. Cambridge, Massachusetts: Havard University Press, 1999), 410.

Taylor, Charles. “Conditions of An Unforced Consensus on Human Rights,” in Joanne R. Bauer and Daniel A. Bell, The East Asian Challenge for Human Rights. New York: Cambridge University Press, 1999.

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John Rawls's Idea of an Overlapping Consensus