The Practice of Liberty

Erin I. Kelly, Tufts University

A Problem for Liberal Toleration

A free society contains a plurality of worldviews—different notions of the

meaning, purpose, and ethics of individual and social life. One source of pluralism is the

open-endedness of rationality’s demands. Rational deliberators reach different and

mutually incompatible conclusions because rationality does not mandate particular ends.

Another is the compatibility of pluralism with the requirements of morality. Morality

places substantial requirements on an agent’s value and aims; yet the moral truth can be

difficult to discern and on some matters multiple moral perspectives can be reasonable.

We should expect that people who are committed to morality will not reach consensus on

the full range of important moral questions.

In these ways, pluralism results from the permissiveness of rational and moral

principles. Nevertheless, rational and moral agents share certain fundamental interests

and needs. A liberal account of rights and liberties affirms this commonality. All citizens

are entitled to the same basic rights and liberties, including freedom of belief, freedom of

expression, the rights of political participation, freedom of association, and equal

protection under the law. Protecting these rights and liberties is crucial for the exercise of

rational thought and to enable political cooperation on reasonable and fair terms. In fact,

the demands of rational and moral thinking are critical to an account of the importance of

securing individual rights and liberties.

A society that protects equal basic rights and liberties will be tolerant. Toleration

expresses a principle of political morality requiring deliberate noninterference with an

opposed individual or group agent’s exercise of freedom.1 It involves restraint and

recognition. It is not the same as indifference, resignation, or neutrality.2 It acknowledges

those with whom one disagrees as equal participants in a shared society, entitled to the

same rights, liberties, and opportunities.3 For example, liberal justice prohibits us from

interfering with another person’s expression of religious beliefs, though we may reject

those beliefs. Toleration permits rational dialogue and some forms of social pressure;

what it prohibits within its domain is coercive behavior. A just society will not tolerate

intimidation or assault and may apply legal and other social sanctions in order to prevent

and remedy those wrongs. Furthermore, a tolerant society will not deny demonstration

permits to unpopular minorities, restrict their access to media outlets, or block their

participation in the political process.

The possibility of social conflict entails that individual rights and liberties require

boundaries. Not every exercise of freedom should be tolerated. Some philosophers have

arrived at a theoretical understanding of the scope of liberal toleration from claims about

the nature of disagreements that might arise between rational and moral agents. Their

thinking is that the proper scope of toleration can be identified by specifying the extent of

1Forthcoming in What is Pluralism? The Question of Pluralism in Politics. Ed. Volker Kaul and Ingrid Salvatore. Routledge Press. Forthcoming. See Jason Andrew Cohen, “What Tolerance Is,” Ethics 115 (October 2004): 68–95. On the distinction between toleration as a political concept and tolerance as an ethical attitude, see Jürgen Habermas, “Intolerance and Discrimination,” International Journal of Constitutional Law 1 (January 2003): 2-12. 2 Cohen, “What Tolerance Is,” pp. 71-6.3 See John Rawls, The Law of Peoples, (Cambridge, MA: Harvard Univ. Press, 1999), 59.

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rational and moral disagreement.4 Rational and moral agents should accept the fact of

reasonable disagreement, but they need not tolerate life plans that are demonstrably

irrational or unethical. The limits of rational deliberation and moral epistemology define

the boundaries of acceptable toleration, or so it is argued.

This line of thinking is mistaken. Tolerable pluralism extends beyond the edges of

rational and moral thought. Toleration should be understood in relation to a political

requirement of justice—in the liberal tradition of constitutional democracy—that protects

equal basic rights and liberties for all.5 Social norms and individual values often have

little to do with what is required by rationality or morality. They are influenced by

practice and chance; they are conditioned by culture, biology, institutions, and history.

Liberal toleration can accommodate the influence of these factors. A political

understanding of toleration takes us beyond the parameters of rational and moral

deliberation to recognize historically contingent norms of culture and social structure as

well as the idiosyncrasies of individual preferences. The demands of rationality and

morality are an important source of pluralism, but they do not determine its proper limits.

4 See William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge Univ. Press, 2002), and George Crowder, Liberalism and Value Pluralism (London: Continuum, 2002). For discussion see Alex Zacaras, “A Liberal Pluralism: Isaiah Berlin and John Stuart Mill,” and “Reply to Galston and Crowder,” Review of Politics, Vol. 75, No. 1, Winter 2013, 69-96 and 111-114. See also Barbara Herman, “Pluralism and the Community of Moral Judgment,” Toleration: An Elusive Virtue, ed. David Heyd (Princeton: Princeton Univ. Press, 1996) 60-80. Cf. Rainer Forst, “Toleration, Justice and Reason,” in Catriona McKinnon and Dario Castiglione, eds., The Culture of Toleration in Diverse Societies (Manchester: Manchester Univ. Press, 2003): 71-85. For illiberal versions of an argument from pluralism, see John Gray, Isaiah Berlin (Princeton: Princeton Univ. Press, 1996), and Stephen D. Smith, “Toleration and Liberal Commitments,” Nomos 48 (2008): 243-280.5 See Erin Kelly and Lionel McPherson, “On Tolerating the Unreasonable,” The Journal of Political Philosophy 9 (2001): 38-55.

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Toleration is required whenever a person’s exercise of freedom is compatible with

other people’s equal rights. Individual rights and liberties, when they are fundamental,

can justly be limited only to maintain a basic scheme of equal liberties for all.6 This

means that a liberal account of toleration must accept what I will call “the practice of

liberty”: the social outcomes of people’s exercise of the rights and liberties recognized by

a liberal account of social justice. In fact, the proper scope of toleration, as it is

influenced by the practice of liberty, includes the possibility that some people will

endorse and enact false and even morally repugnant views. That possibility generates a

difficulty for liberal toleration.

A liberal society justly tolerates some points of view that are irrational and even

morally objectionable. They include the distortions of self-interest and group-bias. They

include some forms of provincial and inegalitarian thinking. Toleration of these

viewpoints, when their adherents do not violate the equal rights and liberties of their

compatriots, is required by the priority a liberal theory of justice assigns to a principle of

equal basic rights and liberties.7 But this makes historically persisting injustices difficult

to remedy. Enduring injustices generate ongoing disadvantages for some groups. These

disadvantages play out through the channels of race, gender, sexual orientation, class,

ethnicity, caste, and religion. They persist in part through the influence of irrational and

morally objectionable viewpoints that have become entrenched in the background

culture. The cultural entrenchment of irrational and morally objectionable points of view

6 John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, MA: Harvard Univ. Press, 2003), 111, also 104-5.7 On the priority of liberty, see John Rawls, A Theory of Justice (Cambridge, MA: Harvard Univ. Press, 1971), 214-20, 474-80.

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is permitted by the practice of liberty. A tolerant political culture should grapple with this

problem.

Pluralism and Practical Reasoning

I will begin by examining the norms of a minimal conception of practical

rationality that is intuitive to many people and often accepted by economists, social

theorists, and philosophers. It is commonly referred to as means-ends reasoning. This

form of deliberation supports a plurality of reasons. I will underscore the importance of

individual rights and liberties to the practice of rational deliberation.

Means-ends reasoning involves deliberating from psychologically given starting

points. Its principle normative requirement is that we take the means to our ends. It is

rational, generally speaking, to try to fulfill our desires and irrational to fail to do so.8

Rational behavior involves acquiring relevant facts about available means and adjusting

one’s behavior to fit those facts. For example, if I want to travel to New York City, I need

a plan, such as one that involves a vehicle and a road map. If I am rational, my behavior

will conform to this or another feasible plan, or I will relinquish my stated aim. Rational

deliberation also enables us to specify our ends, to rank them in order of importance, and

to schedule our activities.9 Whether reason is called to these tasks depends on what

happens to motivate a given agent and whether there is conflict or tension between her

aims that needs resolution. If my plans to travel to New York conflict with my plans to

8 See Bernard Williams, “Internal and External Reasons,” Moral Luck (Cambridge: Cambridge University Press, 1981), and his “Internal Reasons and the Obscurity of Blame,” Logos: Philosophical Issues in Christian Perspective 10 (1989): 1-11. Cf. Christine Korsgaard, “Skepticism about Practical Reason,” Journal of Philosophy 83 (January 1990): 19-25. 9 See Williams, “Internal and External Reasons.”

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visit family in Seattle, I must determine which is more important to me or engage in some

rescheduling.

The aim of rational deliberation is not to evaluate our aims.10 What we do when

we deliberate rationally is to make our fundamental commitments more specific and

practically determinate. Rational deliberation enables us to clarify how much relative

support a potential course of action finds in our subjective psychology, once we are

informed by the relevant empirical facts. This support is measured by the (relative)

strength of the motives in us that deliberation draws out. Whether a more specific

formulation of an aim generates reasons for us depends on whether it resonates with us

motivationally.11 If it resonates with us more strongly, then it is likely that deliberation

was sound. If our desire for an end is weakened by deliberating, it would be rational to

look for a different specification. We may infer that we deliberated soundly if and only if

no motivationally more compelling specification of our end is available. In this way, an

agent’s reasons are identified in the proximity of desires.

This does not mean that an agent’s commitment is measured only or primarily by

her felt desire to act upon it (even after deliberating). As Hume argued, strength of desire

does not necessarily correspond to the intensity of its felt quality.12 One might determine

whether a person has a certain reason by seeing whether, in the decisive moment, she acts

10 Cf. Christine M. Korsgaard. “Kant’s Formula of Humanity.” Kant-Studien 77 (1986): 183-202.11 Cf. McDowell’s charge that Williams’ concept of practical rationality is psychologistic. John McDowell, “Might There Be External Reasons?” in World, Mind and Ethics: Essays on the Ethical Philosophy of Bernard Williams, eds. J. E. J. Altham and Ross Harrison (Cambridge: Cambridge University Press, 1995), 77.12 Hume cautions us against assuming that violent passions are strong and calm passions are weak. To the contrary, he argues, strong calm passions can prevail over weak violent ones. David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge and P. H. Nidditch (Oxford: Oxford Univ. Press, 1978), 418-19.

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upon it.13 A person’s actions may be the best test of her commitment. Reasons can also be

identified by noticing which desires tend to have an effect on a person’s deliberations

over time, that is, which ends a person consistently attempts to serve through her

deliberations.14 We may thus draw a distinction between an agent’s values and the

phenomenology of her desires.

In sum, on this account of rational deliberation, the course of an agent’s

deliberative reasoning is guided by the agent’s motives. Deliberation involves channeling

a psychological force down a narrower path, a path defined by an agent’s motives

together with judgments of efficiency and feasibility, judgments that include an

appreciation of relevant empirical facts. Successful specification tends to strengthen

motivation, although not necessarily its felt quality. Clearly the practice of rational

deliberation depends on an agent’s freedom to affirm her beliefs and values, to acquire

information relevant to the success of her pursuits, to confer and collaborate with other

people, and to change her mind in formulating and reformulating her plans. A liberal

society will protect her right to do these things.

Now since different people are motivated by different sorts of considerations,

rational deliberation is bound to generate a plurality of ends, including various and even

incompatible notions of the good. Rational deliberation is open-ended. People may seek

pleasure, happiness, love, money, fame, social status, validation, thrills, comfort, family,

community, peace, salvation, memorialization, or solitude. Means-ends reasoning does

13 Economists commonly rely on this notion of revealed preference.14 Williams also argues that whether a given deliberative process is sound (and thus correctly specifies reasons for us) sometimes depends on the contingent matter of how things actually turn out. In such cases, he argues, the test of deliberative success may depend in large part on the agent’s retrospective identification with his decision. See Bernard Williams, “Moral Luck,” in Moral Luck (Cambridge: Cambridge University Press, 1981), pp. 20-39.

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not require that a person’s ends meet the requirements of morality, or any other

substantive criteria regarding their content. A person’s ends will be shaped by group

affinity, culture, and historical circumstance, as well as individual psychology and values.

Rational deliberation begins from a variety of starting points, and a spectrum of ends is

compatible with it.

The relevance of moral criteria as interpersonally justified correctives for rational

agents, however, indicates that instrumentally rational deliberation does not exhaust the

possibilities for sound reasoning. Moral deliberation concerns what makes a reason

morally defensible to other people, and it is sound when and because it responds to the

legitimate interests of everyone who is affected. Moral deliberation articulates an

interpersonal standard. The justification of reasons is constructed, we might say, in

accordance with principles that reasonably take the interests of all relevant parties into

account.15 While a relational account concedes that only people with a general desire (or

disposition) to conduct their lives in ways that are compatible with the fundamental

interests of other people can be said to have reason to deliberate morally, the presence

and strength of that desire is not what guides the specification of an agent’s moral reasons

(or lack thereof). That is, strength of desire is not what determines the outcome of sound

15 For discussions of the features of ‘constructivist’ accounts, see John Rawls, Political Liberalism (New York: Columbia Univ. Press, 1993), pp. 89-129. Thomas E. Hill, Jr., “Kantian Constructivism in Ethics” in his Dignity and Practical Reason in Kant’s Moral Theory (Ithaca: Cornell University Press, 1992); Brian Barry, Theories of Justice (Berkeley: University of California Press, 1989); Onora O’Neill, Constructions of Reason (Cambridge: Cambridge University Press, 1989); David Brink, Moral Realism and the Foundations of Ethics (Cambridge: Cambridge University Press, 1989), appendix 4; Christine M. Korsgaard, “The Reasons We Can Share: An Attack on the Distinction Between Agent-Relative and Agent-Neutral Values,” Social Philosophy and Policy 10 (1993): 24-51; and Stephen Darwall, Allan Gibbard, and Peter Railton, “Toward Fin de Siecle Ethics: Some Trends,” Philosophical Review 101 (January 1992), especially pp. 137-44.

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deliberation. An account of sound moral deliberation draws upon considerations moral

agents could (ideally) share, whether or not those considerations are supported by an

agent’s existing motives. The desire to be able to justify one’s actions to others may

be only loosely linked, if at all, to an agent’s more particular aims and commitments.

Moral reasons come from considering the moral compatibility of a person’s

behavior with the interests of people affected by it and how deliberation with those

persons would play out. It is not a matter of the psychological support reasons garner that

confers upon them their moral status or authority. The normative force of moral reasons

derives instead from their interpersonally justifiable content. This is the case even though

the possibility of having moral reasons may well be contingent upon an agent’s concern

to stand in interpersonal relationships that are morally justifiable to people affected by

them.

This point is clarified by thinking of moral reasons as akin to reasons that arise

from contractual agreements. The fact that an agent is not bound by rationality to enter

into a contract does not entail that contractual obligations are contingent upon an agent’s

continued desire to remain bound by them. Similarly, in our ordinary moral relations with

other people, we make commitments and form expectations of one another. We do this

not only when it is in our interest, but also because we have a general and reciprocal

concern for one another and desire to have a certain esteem in each other’s eyes, for

example, to be viewed as dependable. The reasons that can be constructed within this

framework of mutual commitment and expectation, however, do not depend on whether

the reasoning that supports them always promotes our personal interests or focuses and

strengthens our general concern for other people. Participating in social relationships on

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mutually agreeable terms presupposes that other people, as equal and independent

members of those relationships, have claims no less important or pressing than our own.

Their claims generate reasons for us, whether we like it or not.16 Moral reasons are

autonomous.

The autonomy of moral reasons is acknowledged, I believe, in the way we

commonly think about morality. Moral motivation is a concern or disposition to structure

deliberation to accord with the interests of other people.17 When we deliberate morally,

what we explore is that justification requirement, not the psychological strength of our

motives. In that sense, moral deliberation takes on a life of its own. We may rightly

accept the result of a piece of deliberation even when we are disinclined to act on it.

Commitment to morality takes seriously the requirement that in social life we

conduct our lives in ways that are compatible with the fundamental interests of people

who are affected by our actions. It involves accepting that practical deliberation should be

organized by a recognition of the importance of being able to justify our conduct on the

basis of considerations that take the basic interests of all affected persons into account.18

Although it is not a requirement of rationality that persons engage in moral reasoning, we

may suppose that people who respect each other will adopt the requirement of mutual

justifiability as a regulative principle, and will be committed to participating in social

relationships on mutually agreeable terms. To accomplish this, participants must learn

about the interests and needs of those with whom they stand in relationships. They must

16 Cf. Harry G. Frankfurt, “On Caring” Necessity, Volition, and Love (Cambridge: Cambridge University Press, 1999), p. 175. 17 See T. M. Scanlon, “Contractualism and Utilitarianism,” in Amartya Sen and Bernard Williams, Utilitarianism and Beyond (Cambridge: Cambridge Univ. Press, 1982).18 See Erin I. Kelly, “Personal Concern.” Canadian Journal of Philosophy 30 (2000): 115-136.

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be able to associate freely, to communicate their beliefs and values, to engage in dialogue

and discussion, to form commitments together, and to affirm a sense of commonality.

Liberal justice protects the rights and liberties on which moral relationships depend.

The moral terms of interpersonal relationships are permissive in ways that are

similar to the open-endedness of means-ends rationality: shared ends will be shaped by

group affinity, culture, and historical circumstance, as well as the psychology and values

of the people involved. People disagree about what we owe to one another: for example,

how much we ought to do to help people in need, what measures, if any, we ought to take

to protect other people from harming themselves, whether to be honest or evasive when

the truth hurts, the extent to which love is compatible with independence, and under what

circumstances hierarchical group norms are acceptable. A diverse set of shared ends is

morally permissible; morality supports a variety of human relationships.

The basic requirements of rationality and morality, as I have outlined them,

suggest that we should expect a plurality of individual and collective commitments.

Under free institutions, conscientious people are bound to disagree about which norms

for individual and social conduct are best. The indeterminacy of rational and moral

principles is an important source of a plurality in worldviews. The history of philosophy

bears witness to just this sort of disagreement. Philosophers have argued passionately and

at odds with one another about the value of freedom, the common good, human rights,

aesthetic values, love, family, community, nation, religion, power, self-interest, and

justice. The western tradition alone evinces a plurality of notions of the right and the

good. Plato insisted that persons each do their part in a just city. Aristotle argued that we

are political animals who flourish only in community. Kant defended the primacy of

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individual freedom and autonomy. Mill emphasized the virtue and satisfactions of

contributing to the common good. The history of ideas is instructive. We should expect

rational and moral agents to endorse a variety of ends and values.

Just Toleration

A liberal account of justice recognizes that rational and moral forms of reasoning

generate a plurality of values. It does this by affirming the rights and liberties needed for

people freely to engage in the rational pursuit of value and to negotiate morally justifiable

relationships. That is, liberal justice shifts its attention from the rational and moral

evaluation of particular doctrines to the compatibility of these doctrines with a scheme of

equal basic rights, liberties, and opportunities that serve the fundamental interests of all

rational and moral agents. This means that what is important to justice is not the

credentials of rationality or morality. What matters is whether a point of view is

compatible with the political requirements of justice: the rights and liberties of other

people. Reasonable people committed to democratic values would be tolerant of irrational

and even incoherent views, provided that adherents of these views respect the

requirements of democratic institutions. As long as people are peaceful and respect other

people’s rights, they count as reasonable, politically speaking. Politically reasonable

people might believe false things and subscribe to supernatural claims. They might hold

beliefs in miracles, predestination, or fate, for which they have no credible evidence.

Nevertheless there is a place for them in a just society.

The norms of rational and moral thought help us to understand the importance of

individual rights, but they do not define the sources of value and meaning to individuals,

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nor do they set the boundaries of liberal toleration. As critics of liberalism have often

pointed out, adherence to tradition, including the symbols and practices of religion and

culture, commonly generates a sense of belonging and identity for group members. Group

norms and practices are sometimes accepted without rational or moral justification.

Nevertheless, they are a source of acceptable pluralism and multiculturalism in a liberal

society, provided that they are consistent with the individual rights of both members and

nonmembers.19 The same rights, liberties, and opportunities needed to support rational

and moral inquiry also protect people’s right to adhere to traditions and cultural practices

they find meaningful, whether or not those practices would survive rational and moral

scrutiny.

Public reasoning guided by the norms of justice bears some resemblance to moral

reasoning, yet the norms of justice are more permissive than the norms of morality.

Within limits, they affirm the rights of individuals and groups to pursue conceptions of

value that are morally flawed. The demands of justice lie in between self-interest and the

demands of moral consideration.20 Just citizens need not be altruistic, benevolent,

generous, kind, or even all that caring toward others. Justice permits people to be

indifferent or self-interested, provided their behavior is not unfair to other people. All

members of society must respect the equal standing and entitlements of their compatriots.

Self and group-interested ends can be accommodated by liberal norms of justice,

provided that they do not infringe on any person’s rights, liberties, or fair opportunities.

19 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford Univ. Press, 1995).20 See John Rawls, Political Liberalism, expanded edition (New York: Columbia Univ. Press, 2005), 16-7, 50.

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Another way to put this point is that liberal justice involves moral commitment at

an institutional level. Politically reasonable people will respect fair terms of cooperation

understood as institutional requirements of justice. But justice does not require that

people exemplify commitment to morality more thoroughly in their conduct. Reasonable

pluralism does not require agents to engage in moral reasoning as they negotiate their

personal and social relationships, generally speaking. It permits self and group-interested

agents, within the limits imposed by the institutional requirements of justice. This means

that certain forms of bias and group preference are tolerable.

The broad scope of liberal toleration leads to a problem. Permissible personal

forms of bias and exclusion threaten to undermine the requirements of justice by eroding

support for just institutions in the background culture. Especially threatened are fair

opportunities. Forms of historical injustice may linger in the public culture and erode the

fairness of consideration for open positions. Or they may be produced anew through legal

forms of individual and group preference and bias.21 Injustice persists through cultural

practices, social structures, and group norms, not only in objectionable institutional

policy and legal norms. Even when unjust legal norms and institutional policies are

overturned, historical injustice might persist or be rekindled in civic life. As a result,

injustices from the past—particularly surrounding race, ethnicity, or religion—become a

source of entrenched social inequality decades or even hundreds of years later.

In the United States, being white, Christian, and heterosexual increases one’s job

opportunities, social status, and prospects for obtaining positions of political and social

influence. This is partly because group bias and norms of exclusion operate in the

21 I thank Ingrid Salvatore for emphasizing the possibility that injustice is continuously produced in the background culture, despite corrective justice efforts.

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background culture. Of course, liberal theories of justice must distinguish between

pluralism and acceptable pluralism. The scope of toleration is defined by acceptable

pluralism, not the mere fact of pluralism.22 Permissible worldviews must be compatible

with principles of liberal justice, which do not permit institutional policies that favor the

social exclusion or subordination of disfavored groups. As I have stressed, worldviews

belonging to tolerable pluralism must respect the basic rights and liberties of all members

of society, which include equal standing and the rights of nondiscrimination. Yet among

worldviews that respect the institutional requirements of justice will be those that do not

accept the norms of equality in practice—in daily life. Some people’s affinities, their

choice of friends, neighbors, partners, and associates, exemplify patterns of bias and

social hierarchy. These patterns have pernicious effects over time.

In particular, differential access to social networks determines a subject’s degree

of cultural capital—the leverage a person gains from her social connections and know-

how for personal advancement— and this affects whether social inequalities are

reproduced. Social networks extend well into and, in fact, help to organize the informal

sphere of a society’s background culture. Access to social networks is vital to a person’s

life prospects. It enables some people to showcase their talents and deprives others of the

same opportunities. Access to social networks is complex; it typically requires an

integration of cognition, identity, performance, and emotion that enables a subject to

engage with the network.23 The complexity of integration with a social network implies

22 Joshua Cohen, “Moral Pluralism and Political Consensus,” The Idea of Democracy, eds. D. Copp, J. Hampton, and J. Roemer (Cambridge: Cambridge Univ. Press, 1993): 270-291.23 See Gary Alan Fine and Corey D. Fields, “Culture and Microsociology: The Anthill and the Veldt,” The Annals of American Academy of Political and Social Sciences 619 (2008): 130-148.

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that social alienation and the dynamics of disadvantage can occur along several lines. For

example, a person might understand a task without adapting to an expected cultural

performance style, and this might disadvantage her. Forms of bias may be disguised in an

evaluation of a person’s qualifications when that evaluation depends on norms of

articulateness and dispassion.24 These norms do not track intelligence, knowledge, skills,

or motivation per se; they are cultural norms that privilege forms of expression typical of

people with social privilege and high levels of formal education. Iris Young summarizes

empirical findings in this way: “The speech culture of white, middle-class men tends to

be more controlled, without significant gesture and expression or emotion. The speech

culture of women, racialized or ethnicized minorities, and working-class people, on the

other hand, often is, or is perceived to be, more excited and embodied, values more the

expression of emotion, uses figurative language, modulates tones of voice, and gestures

widely.”25 Norms that govern the expression of thought and emotion function unfairly to

restrict the openness of positions by disadvantaging certain candidates, especially

members of historically marginalized groups. Generally speaking, because they lack

social and cultural capital, members of these groups are less successful in securing

opportunities to which they are entitled.

Cultural identity, which often corresponds to religious or racial difference, is a

source of pride and group identity that can support in-group partiality. Consider in-group

tendencies. Advantaged individuals tend to form alliances that track these differences—

forming exclusive pairings and residential communities, and aiming to maintain for their

offspring whatever advantages they have accrued. This affects the social distribution of

24 Iris Young, Inclusion and Democracy (Oxford: Oxford Univ. Press, 2002), 38-9. 25 Young, Inclusion and Democracy, 39-40.

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material goods and resources. In-group tendencies might also be influenced more directly

by a society’s history of injustice. The stigma of membership in a disfavored group might

persist and be hard to eliminate, even were disparities of income and wealth to be

reduced. Members of historically disadvantaged groups might be subject to

discrimination in ways that are not overtly pernicious. They might be treated as

dangerous, or socially invisible, or their presence as uncomfortable, or their

accomplishments as less significant, in comparison with members of their historically

more advantaged peer group.26 This kind of biased treatment, however informal, erodes

equal standing. Stigma invites overt hostility toward outsiders, but it also supports more

subtle forms of bias.27 The operations of bias and stigma in the background culture can

produce entrenched forms of social disadvantage despite efforts to ensure that social

institutions are not unjust.

Even when members of historically disadvantaged groups do not encounter overt

discrimination, anxiety about the possibility of being treated unfairly or of confirming

group stereotypes and low expectations can lead to underperformance or lack of

motivation to engage with available opportunities. Psychological studies confirm that the

perception of bias and unfairness, whether accurate or not, significantly affects the

performance of historically marginalized groups via “stereotype threat.” 28 Individuals

26 Glenn C. Loury, The Anatomy of Racial Inequality (Cambridge, Ma: Harvard University Press, 2002), 95-6.27 See Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (New York: Simon and Shuster, 1963).28 See Claude M. Steele, Whistling Vivaldi and Other Clues to How Stereotypes Affect Us (New York: W.W. Norton and Co.: 2010); Geoffrey L. Cohen and Claude M. Steele, “A Barrier of Mistrust: How Negative Stereotypes Affect Cross-Race Mentoring,” in Improving Academic Achievement: Impact of Psychological Factors on Education,” ed. J. Aronson (San Diego: Academic Press, 2002); Y. J. Huo, H. J. Smith, T. R. Tyler, and E. A. Lind, “Superordinate Identification, Subgroup Identification, and Justice Concerns: Is Separatism the Problem, Is Assimilation the Answer? Psychological Science 7 (1996):

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tend to underperform when they are anxious about confirming negative stereotypes or

receiving unfair treatment.

In these ways— the unequal distribution of social and cultural capital, the

detrimental effects of in-group partiality, and the impact of “stereotype threat”—the

liberties and opportunities available to members of disadvantaged groups are

compromised. Fair and accurate cross-group assessments of individual talent and

motivation as the basis of qualification for desired social positions are spoiled. The

dynamics of historical injustice influences hiring and promotion decisions, for example,

and the recognition of educational achievement or creative accomplishments. As a result,

a disproportionate number of those who are least well off are members of historically

disadvantaged groups.

A politically liberal requirement of toleration comes with some real costs. A cost

of protecting the personal liberties of conscience, speech, and association is the possible

persistence of injustice. The legacy of historical injustice presents an ongoing challenge

to liberal democracies in view of the latitude offered by a liberal account of individual

rights for individuals and groups of people to adhere to cultural norms and social

practices of their choosing. Job discrimination is impermissible, but it can be difficult to

identify and to redress, when social norms in the background culture are themselves

biased. As I have noted, acceptable pluralism restricts permissible worldviews to those

that respect the rights and liberties of all members of society. But the historical dynamics

of individual and group identity can perpetuate social inequalities even when they do not

40-45. Albert Bandura, Social Foundations of Thought and Action: A Social Cognitive Theory (Englewood Cliffs, NJ: Prentice-Hall, 1986); Carol S. Dweck, Self-Theories: Their Role in Motivation, Personality, and Development (Philadelphia: Taylor and Francis/Psychology Press, 1999).

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directly violate individual rights. The practice of liberty may undermine the requirements

of justice even when it does not involve overt acts of discrimination.

Corrective Justice

To remedy this problem, liberal toleration should be paired with a public

commitment to redressing historical injustice. It is not enough for a theory of justice to

describe the institutional parameters of justice. It must also outline strategies for

redressing background injustice. Historical redress should be understood as a requirement

of justice, but it should not involve restricting personal liberties. It must attend to the

public culture.

New Orleans Mayor Mitch Landrieu demonstrated courage and leadership by

speaking forcefully in favor of the removal of confederate monuments in the city of New

Orleans. He not only defended the removals, he explained why it was important to do so.

In a public address, he stated,

These statues are not just stone and metal. They are not just innocent remembrances of a benign history. These monuments purposefully celebrate a fictional, sanitized Confederacy; ignoring the death, ignoring the enslavement, and the terror that it actually stood for.

After the Civil War, these statues were a part of that terrorism as much as a burning cross on someone’s lawn; they were erected purposefully to send a strong message to all who walked in their shadows about who was still in charge in this city.

[T]he Confederacy was on the wrong side of history and humanity. It sought to tear apart our nation and subjugate our fellow Americans to slavery. This is the history we should never forget and one that we should never again put on a pedestal to be revered.

This example of leadership engages with historical injustice and its legacy. The mayor’s

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words exemplify a measure of corrective justice through naming a historical injustice and

repudiating it. The historical injustice is one that has persisted in multiple registers of

racial disadvantage for African-Americans: measures of income, wealth, employment,

and health, among others. Its symbols are celebrated by some southerners as glorified

remnants of their historically rooted White Southern identity. Mayor Landrieu’s speech

instructs the public about history and the significance of history to the present, at the

same time the city of New Orleans acted to remove symbols celebrating injustice.

Other American cities have made symbolic efforts to commemorate historical

struggles against racial injustice. For example, in August 2017 Philadelphia erected a

memorial statue in honor of Octavius V. Catto, an African-American who, after the civil

war, fought against racial segregation and advocated ratification of the 15th Amendment

to the U.S. Constitution, which extended the franchise to recently emancipated African-

American men.29 On a federal level, for example, the U.S. Postal Service issued a stamp

in 2007 commemorating the 70th anniversary of Mendez v. Westminster, a U.S. federal

court case that ended the segregation of Mexican American children in Orange County

California schools. Three years later, President Obama recognized Sylvia Mendez, then

81 years old, with a Presidential Medal of Freedom. Gestures like these are opportunities

for public education.

Of course, public statements and symbolic gestures require the support of a

broader policy agenda if they are to be taken seriously and eventuate in lasting change.

Corrective justice must involve concerted effort to reroute social dynamics that are

29 Born in 1839 in South Carolina, Cato successfully led efforts to integrate streetcars in Philadelphia. He was 32 years old when, in his official capacity as a National Guardsman assigned to protect newly registered African-American voters, he was killed on his way to a polling site in South Philadelphia.

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an obstacle to fair opportunities. The use of institutional incentives need not be at

odds with personal choice and freedom in social relations. For example, incentives

directed against de facto racial barriers in education, hiring, promotion, and housing

could take a variety of forms.30 Government subsidized low-interest home mortgages

and business loans for historically burdened racial minorities would help to reverse

the consequences of decades of discriminatory and predatory lending practices.31

Federal and state funding could be increased for voluntary school integration

programs like METCO (Metropolitan Council for Educational Opportunity), which

buses nonwhite students from Boston to better quality schools outside the city, so

that suburban school districts would have more to gain financially by participating.

State agencies could adopt or strengthen policies to contract with firms that are

racially inclusive or, at least, sincerely seek to be through internal mandate that

minority candidates must be interviewed (a practice adopted by the National

Football League, for instance) and actual hires charted over time.32

30 In New York City public schools, the average enrollment is almost 75% Black and Hispanic, with some schools over 95%, and the average is considerably higher in Chicago, Los Angeles, Washington D.C., Baltimore and Detroit. See Jonathan Kozol, “Still Separate, Still Unequal: America’s Educational Apartheid.” Harper’s Magazine, Sept. 1, 2005. Regarding de facto racial segregation, including housing, see Orlando Patterson, “Equality,” Democracy: A Journal of Ideas 11 (Winter 2009); http://democracyjournal.org/magazine/11/equality/.31 On the history of racist U.S. housing policy, see Ta-Nehisi Coates, “The Case for Reparations,” The Atlantic (May 21, 2014); http://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/. 32 The NFL’s “Rooney Rule,” adopted in 2002, requires all NFL teams to interview at least one nonwhite candidate for any open head coaching position. By 2006, the number of African American coaches in the league grew from 6% to 22%. See Brian W. Collins, "Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule," New York University Law Review 82 (2007): 870–912.

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My present task is not to evaluate possible measures of historical redress for

efficacy or constitutionality.33 Rather, I am stressing that a politically liberal theory

of justice should make the case that a society encumbered by a history of historical

injustice has an obligation to confront this past and to take substantive measures to

rectify entrenched inequalities. The work of historical redress is called for in the

civic realm as well as in the formal realm of law and politics. Without it,

objectionable disparities are likely to persist and be reproduced.

Conclusion

Philosophers have underestimated the consequences of liberal toleration. The

priority a liberal theory of justice places on individual rights and liberties permits

acceptable pluralism to include some views that are irrational and even morally

objectionable. The legacy of historical injustice presents an ongoing challenge to liberal

democracies in view of the latitude offered by a liberal account of individual rights for

individuals and groups of people to adhere to cultural norms and social practices of their

choosing. Acceptable pluralism restricts permissible worldviews to those that respect the

basic rights and liberties of all members of society. But, I have argued, the historical

dynamics of individual and group identity can perpetuate social inequalities even when

33 An extensive literature is available on measures of historical redress. See, e.g., David Lyons, Confronting Injustice: Moral History and Political Theory (Oxford: Oxford Unive. Press, 2013); Colleen Murphy, A Moral Theory of Political Reconciliation, (Cambridge: Cambridge Univ. Press 2012); Michael T. Martin and Marilyn Yaquinto, ed., Redress for Historical Injustices in the United States: On Reparations for Slavery, Jim Crow, and Their Legacies (Durham: Duke Univ. Press, 2007); John Miller and Rahul Kumar, ed., Reparations: Interdisciplinary Inquiries (Oxford: Oxford Univ. Press, 2007); Margaret Urban Walker, Moral Repair: Reconstructing Moral Relations after Wrongdoing (Cambridge: Cambridge Univ. Press, 2006); Howard McGary, Race and Social Justice (Malden, MA: Blackwell Publishers, 1999); and Bernard R. Boxill, Blacks and Social Justice, rev. ed. (Lanham, Maryland: Rowman and Littlefield: 1992).

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they do not directly violate individual rights. The practice of liberty undermines

requirements of justice even when it does not involve overt acts of discrimination or other

direct violations of individual rights and entitlements.

This presents a difficulty for a liberal democratic society. Rights and liberties

have priority within its ideals of justice, but protecting basic rights and liberties may

permit injustice to persist in the background culture. Thus it is important for a liberal

democratic society to acknowledge and respond to the dynamics of historical injustice,

but it must do so without objectionably restricting individual liberties. I have argued that

a just society would redress the legacy of historical injustice through efforts by the state

to identify and rectify the persisting dynamics of injustice in the background culture. It

can do so through measures that include memorials, museums, national holidays, and

history curriculums.34 Such investments in remembrance and memorialization give

weight to acts of political speech, including apologies, which can seem empty when

not backed by substantive displays of commitment.35 Other measures include

affirmative action, government assistance, and (re)distributive justice. The point is

that a liberal principle of equal rights and liberties requires a supporting commitment to

corrective justice.

34 Truth commissions, war crimes trials, and narrative renderings of oppression are modes of public acknowledgement. See Young, Inclusion and Democracy, 68-72. See also Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton: Princeton University Press, 2004), 48-53; Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge MA: Harvard University Press, 1996), 135-6; and Robert I. Rotberg and Dennis Thompson, ed., Truth v. Justice: The Morality of Truth Commissions (Princeton, NJ: Princeton University Press, 2000).35 See Jeffrey M. Blustein, Forgiveness and Remembrance: Remembering Wrongdoing in Personal and Public Life (Oxford: Oxford University Press, 2014); Nick Smith, I Was Wrong: The Meaning of Apologies (Cambridge: Cambridge University Press, 2008); Charles Griswold, Forgiveness: A Philosophical Exploration (Cambridge: Cambridge University Press, 2007). See also Karl Jaspers, The Question of German Guilt (New York: Fordham University Press, 2001, orig. pub. 1947).

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In a society marked by historical injustice, an anti-discrimination policy alone

cannot rectify entrenched injustice. People’s relation to their opportunities must be

underwritten by social conditions of fair access, which means opportunities must be

genuinely accessible to them. To enable this, a society encumbered by a history of

injustice must impress the meaning of that injustice within its collective consciousness

and take explicit and direct measures to rectify entrenched inequalities. The work of

historical redress is called for in the civic realm—to overcome historically entrenched

disparities in schools, residential communities, and places of work—as well as in the

formal realm of law and politics. It can proceed piecemeal, through education, politics,

art, cultural engagement, and the provision of financial resources and incentives, and it

can proceed incrementally. Without corrective justice, however, entrenched disparities

are likely to persist. Granting priority to individual rights and liberties, as liberals do,

means extending the proper scope of toleration to encompass the besmirched pluralism

that is the legacy of the practice of liberty. This legacy necessitates a commitment to

corrective justice.

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