Born and living in Hungary, János Kis is a philosopher. He was dismissed from the academy and put under an employment and publications ban in 1973. In the 15 years before the fall of communism, Kis was an activist of the democratic opposition. Between 1981 and 1989, he was the senior editor of an underground political review. In 1989, he was a participant at the roundtable negotiations on the transition to democracy. In 1990-1991, he was the president of the Alliance of Free Democrats, a liberal party issued from the democratic opposition. Since 1992, Kis has taught at the Central European University, Budapest, where he is professor of philosophy and political science. His major works include Do We Have Human Rights? (1986), Political Neutrality (1997), and Politics as a Moral Problem (2008).
My intellectual journey started in communist Hungary toward the end of the 1950s. In those times, a young Hungarian with a secular Enlightenment outlook had Marxism as the only philosophical language to speak. Even the criticism of Marxism had to proceed by way of turning Marx against the official Marxist ideology or turning some part of Marx's theory against other parts of it. So I began as a revisionist Marxist of sorts.
The process of revision was due to lead beyond Marxism. Some ex-Marxists of my generation embraced postmodernist relativism, deconstructionism, and the like. Some others ended up with conservatism or libertarianism. I found the first option intellectually frivolous and rejected the latter on substantive moral grounds. So I tried to rebuild my worldview within the broader Enlightenment tradition of which Marxism represented the radical left wing. The task was complicated by the fact that I continued to think that Marx had valid critical points against the mainstream Enlightenment view of man and society. So I had to face the question whether and how the Enlightenment tradition could be rescued from those objections, once the Marxist answer proved to be untenable.
Since my education linked me to the philosophical lineage leading from classical German idealism to Marx and to post-Marxian critical theory, a sympathetic observer would have predicted a shift toward some kind of a social criticism freed from the view of modern society as a world of total alienation, on the one hand, and uncoupled from all the practical aims related to the Marxist utopia of total freedom, on the other.
This is not exactly what happened. Personal experiences, such as the rise of a democratic opposition to the communist regime and my participation in it, produced a change in the very questions that gave direction to my thinking. The task of redefining my relationship to the Enlightenment heritage became that of redefining my relationship to the political expression of the Enlightenment, namely, liberalism. Social theory yielded its place to political philosophy, German idealism to Anglo-Saxon contractualism (very broadly understood, including philosophers who do not subscribe to the contractarian method of reasoning).
What follows is an attempt to provide glimpses of the influences that shaped this process. Works affecting my thinking as a Marxist will be given separate attention only insofar as my Marxist background had an impact on the understanding in which I came to embrace liberalism. Thus, I will not discuss Hegel or the young Hegelians, the early Lukács, the prison notebooks of Antonio Gramsci, Karl Korsch's Marxism and Philosophy, the Frankfurt School, or György Márkus's Marxism and Anthropology, which is still the best interpretation of Marx's conception of human flourishing, alienation, and reconciliation between individual and society and which, more than anything else, contributed to my original intellectual formation. Nor will I speak about the way my thinking was affected by early German sociology (Georg Simmel and, especially, Max Weber), by the classics of modern moral and political philosophy from Hobbes through Kant, or contemporary moral and political philosophers whose influence, great as it was, did not directly affect my coming to terms with the Enlightenment tradition (I should perhaps mention Bernard Williams and Thomas Scanlon).
György Lukács, “Literature and Democracy”
In his pre-Marxist and early Marxist periods, Lukács was an important thinker. This article from 1946 was far from being at the level of his early works, though. However, it was my first encounter with a philosophical argument, crude as it happened to be. I read “Literature and Democracy” at the age of fifteen, in 1958. Lukács was then subjected to a brutal ideological attack in response to his refusal to recant his participation in the 1956 revolution. I wanted to get firsthand information about his views, and so I read the first of his writings I came across.
“Literature and Democracy” had been written at the time of the short-lived postwar parliamentary republic when the Communist Party, with only 17 percent of the votes but with the backing of the Red Army, obtained control over the police and held its rivals under relentless pressure by keeping its own constituency in a state of permanent mobilization.
Lukács presented all this as “real” democracy superseding the shortcomings of “formal,” that is, liberal democracy. Such a mendacious discourse was usual in those times. But “Literature and Democracy” at least provided an argument, taking recourse to the young Marx's critique of liberalism. In “On the Jewish Question,” Marx leveled an objection to the institutional separation of the private and the public domains, characteristic of liberal societies, claiming that it involves a split within each individual between a private person (the Bourgeois) and a public person (the Citoyen). As Citoyens, Marx argued, individuals are supposed to be motivated by a concern for the good of their fellow citizens, but, as Bourgeois, they are encouraged to pursue their egoistic aims. The same conflict reproduces itself, according to Marx, in the duality of the rights of man and citizen. The rights of the citizen purport to enable their bearer to participate in the collective political life of their society. However, the value of these rights is undermined by the rights of man, which, so the argument went, are bulwarks against the claims of community; they defend the standpoint of the private individual against the claims others can make on them. By the time the public-regarding concerns of the Citoyen would come into play, each individual's attitudes are already fully determined by the egoistic concerns of the Bourgeois.
The way “Literature and Democracy” used this argument shows how dangerous Marx's blindness to the value of the liberal separation strategy, of the rule of law, and of individual rights was.
Nevertheless, Marx had a point. He was right to suspect that the motives of the private person and those of that person's public counterpart are susceptible to conflict, and that their private motives have a chance to gain ascendance over the public motives, threatening to dissolve the bonds of solidarity that are supposed to tie them to each other as Citoyens.
At the age of fifteen, I failed to see the fatal flaws in Marx's antiliberalism. But when I came to recognize them about fifteen years later, I remained aware that he had a point.
Karl Marx, Das Kapital
The central idea of Marx's unfinished work seemed to me to contain another important point. Das Kapital was meant to prove that there is a necessary relationship between the fact that the owners of the means of production earn profits and the fact of exploitation to which the workers who own nothing but their labor force are subjected. This thesis is widely considered to be a nonstarter, given the conceptual dependence of Marxian exploitation on the irredeemable labor theory of value.
But I thought that although it is mistaken, it is not obviously so, and, moreover, it entails a fruitful intuition. To be sure, Marx himself understood his theory of exploitation as relying on the labor theory of value. But this was a mistake. The labor theory of value is neither sufficient nor necessary for making a judgment of exploitation. Here is why I thought it was not sufficient. Marx was clear that even under a communist system of ownership, some surplus would be unavoidably removed from the individual control of the workers (with the aim, for example, of enabling society to support its unproductive members). However, he categorically denied that, under communism, the producers of the surplus would be subject to exploitation. The means of production as well as the entire product would be under public control, and each producer would participate as an equal in the adoption of collective decisions regarding the production and distribution of the common assets. If so then, for an exploitative relationship to hold, the surplus must be appropriated by private owners.
If this is true, however, then it is not even necessary that the surplus value is produced by the labor of the exploited person alone, without any contribution of other productive resources. The working class is exploited if a noncapitalist system is feasible where no member of society has privileged control over the social surplus and where, therefore, the production of surplus does not generate inequalities. Add to this that under such a system, according to Marx, the workers would be at least as well-off as they are under capitalism and, since everybody would be workers, nobody would be worse-off than they are under capitalism.
This, I think, is the deepest idea lurking in the background of the Marxian conception of exploitation. We have good reasons for rejecting the particular ideal—communism—against which Marx judged the capitalist system to be exploitative even at its best. It remains that a system of inequalities is liable to be unacceptable if there is an alternative system under which the disadvantaged are better off than under it (while nobody is worse-off than they are under the current system). It is extremely interesting to discover the analogies between this fundamental idea of Marx's critical theory of capitalism and the core idea of Rawls's A Theory of Justice. Rawls's lecture on Marx in his Lectures on the History of Political Philosophy is testimony that the resemblance is not a contingent fact about Theory but is due to a thorough reading of Das Kapital.
Richard Wasserstrom, “Rights, Human Rights, and the Nature of Discrimination”
In the first years of my encounter with philosophy, I was convinced that the conception of human rights was mere ideology in the sense Marx used the term: I took it as justifying the promotion of particular interests by providing them with the false aura of universality.
A couple of years later, a personal experience made me revise this judgment. In the early 1970s, I was put under an employment and publications ban for coauthoring a critical interpretation of Marx's conception of communism. I reacted to that decision with resentment; I took it to be an attack on, yes, my rights. But I was fully aware that those rights did not exist, legally speaking. I needed conceptual tools to make sense of the feeling that, nevertheless, I did possess them, and Wasserstrom's paper, written in the early 1960s, provided me with some of the requisite concepts.
Other authors may have provided more sophisticated analyses, but Wasserstrom's was an exceptionally vivid account of the moral significance of rights. It started out from the bewilderment with which some white Southerners in the U.S. reacted to the civil rights movement. These were people with benevolent attitudes toward “Negroes” (this is the word Wasserstrom uses throughout the paper). They would have never inflicted pain or suffering on a “Negro” needlessly. They even undertook special obligations to relieve them from hunger or disease. And they failed to understand why, rather than reacting to beneficence with gratitude, “Negroes” turned the adversarial discourse of rights against them.
Suppose, Wasserstrom said, “Negroes” were indeed treated as benevolently as these white Southerners claimed they were. Even so, the bewilderment at the civil rights movement betrayed a lack of acknowledgment that the “Negro” is the white man's equal. A person who has a right to a certain treatment owes no gratitude to those who treat him in that way. And he has the moral standing to protest if he believes his rights are violated. He can ask for justification or excuses, for apology and redress.
So rights are normative constraints on action. They put others under a duty not to do those things that count as violating them. However, as I came to understand, they are constraints of a particular kind. Consider the duty of beneficence. It is a freestanding duty, not grounded in a right of the beneficiary. If the bearer of the duty fails to act as he is mandated by the duty that is merely a matter between him and his conscience. But if someone is held under a duty as a consequence of another person's having a right, the former is accountable to the latter. To have a right is to have control over what others may do to one. To be deprived of rights is to depend on the judgment and goodwill of those others. Let us call this the rights thesis.
The rights thesis helped me to make sense of my intuitive reaction to the employment and publication ban imposed on me. It also helped me to make explicit the reasons why I came to think that communism, whether in the form of the Marxian utopia or in that of the existing communist regimes, was morally unacceptable. In its last decades, the communist regime in my country grew more and more permissive. Yet the boundaries between the permitted and the prohibited remained arbitrarily drawn and could be unpredictably redrawn at any moment. The party-state continued to claim the authority to grant permission as to what citizens had a moral right to have and to do.
Taking the rights thesis seriously meant to me that the communist regime was illegitimate and that I ought to oppose it.
Robert Nozick, Anarchy, State, and Utopia
Ironically, the acceptance of the rights thesis involved me in an intellectual crisis. The book on Marx I coauthored ended with the conclusion that the utopia of a classless society, free of markets, of the law and of the institutions of representative democracy, would betray the very ideals Marx expected communism to realize. The understanding that human persons are bearers of moral rights made it clear to me that some of the very ideals Marx held must be revised, too. My thinking began to drift in the direction of liberalism. Still, I continued to believe that part of the Marxian critique of liberalism survives the demise of Marxism. I continued to think that, wrong as Marx may have been on when distributive inequalities are objectionable and how they can be overcome, he was right to insist that distributive inequality is not something to which we should uncritically resign ourselves. And I had a vague but very strong feeling that the liberal commitment to moral rights is incompatible with properly responding to the class inequalities produced by modern society.
Reading Nozick helped me to express that worry in a precise way. According to Anarchy's main thesis, the justice of a distribution depends entirely on the history through which particular individuals came into possession of particular holdings. A distribution is just if and only if it emerged from another just distribution by just steps. If the original acquisition of previously unowned things is just, and the following steps of production and transfer are also just, in the sense that they do not violate anybody's rights, including, of course, the ownership rights acquired in accordance with just procedures, then the outcome is just, too. Each individual is fully entitled to what they own, and no individual has legitimate moral claims against anybody else's holdings. No matter how revolting the inequality of the outcome of a rights-respecting procedure may be, justice does not condemn it for that reason; on the contrary, it requires that all the costs and benefits resulting from morally permissible processes be left where they are.
Nozick was fully aware that the distribution of holdings in existing capitalist societies is tainted by pervasive rights violations. He agreed that the historical facts of distribution, being affected by violence, threat of force, and manipulation, justify a massive one-off redistribution. But suppose that, once the rectification of past injustices is completed, all acts of production and transfer are carried out within the constraints of rights. Once all the wrongfully caused losses are cancelled, other claims—those grounded not in harm but in moral equality—cannot call for further transfers nor are transfers purporting to make people more equal in their holdings morally permitted.
The premises from which Nozick argued for his position were those of classical liberalism. If the argument is valid, then liberalism collapses into libertarianism, and post-Marxist egalitarians like myself face a dilemma. They either want their society to comply with the rights thesis and, then, they have to agree that the constraints on property rights permit no political action intended to reduce even the most revolting social inequalities (except when those inequalities result from rights-violating moves). Or they endorse egalitarian collective action and, then, they have to resign themselves to the fact that some members of society find their rights systematically violated.
Such was the dilemma that I felt vaguely confronted by and that was clarified for me by Nozick's Anarchy.
Ronald Dworkin, “Reverse Discrimination”
On a Sunday morning in 1976, I visited a friend who held an open house on those days. I arrived somewhat late; when I entered the room, there was already heated discussion. But my attention was captured by something else. On the table, I saw a recent issue of the New York Review of Books. My gaze was attracted to the title “Ronald Dworkin: The DeFunis Case.” I had not heard about that case before, nor had I ever encountered the name of the author. Nevertheless, I opened the journal and began to read the article, not even caring about finding a place to sit down. I may have read for about twenty minutes, then asked my friend to lend me the copy, and went home.
DeFunis was a white applicant to the Washington Law School. He was rejected, while black applicants with a score below his were admitted. He sued the university for violating his right not to be discriminated against on the basis of race. The article aimed to show that DeFunis had no right to a color-blind admissions policy. Public universities are permitted to pursue policies that give preferential treatment to underprivileged minorities, and no applicant has a right that the admissions criteria focus on individual performance alone. Race-based classification is impermissible when it aims to disadvantage a group that is already systematically disadvantaged. But it may be permissible when it aims to reduce self-sustaining social disadvantages.
This was years before Dworkin began publishing his magisterial pieces on distributive equality and on how it relates to equal liberty and equal political standing. His discussion of the DeFunis case did not directly bear on the problem of the relationship between equality and private property rights. But the exceptional moral seriousness of his stance made me recognize that liberalism was not morally committed to leaving social inequalities as they are. And his argument gave me some sense of how a consistent defense of liberal equality could proceed. We start out from the foundational principle that all persons matter equally. And, then, we examine what kind of distributive principles honor this foundational principle in a proper way. If we find that Nozick-type principles do not, then we have a good reason to reject them and look for a better theory of justice. It does not follow that there is no such thing as a moral entitlement to private property. But it does follow that the boundaries of that entitlement may be different from those identified by Nozick (or by classical liberals, for that matter).
This insight was a long way from providing an articulate view on egalitarian distributive justice. But at least it indicated to me that my dilemma possibly admits of a solution. I felt I was finally on track.
John Rawls, A Theory of Justice
Once I recognized that liberalism, on an interpretation that I found attractive, is capable of accommodating concerns of distributive equality, I had to set myself to study John Rawls, for the distributive turn in liberalism was initiated by his Theory. On the first pages of Theory, Rawls proposed to examine justice not as a standard applying to separate individual acts but, rather, as a systemic virtue of social institutions. And he argued that as citizens who collectively maintain the institutions of their society, individuals owe more to each other in terms of justice than as private persons who engage in particular transactions with one another within the bounds of those institutions. At the level of personal transactions, the duties of justice incumbent on the individuals are limited to the requirements of not defrauding the other party, not taking advantage from superior bargaining position, etc. But individuals are not just private persons: they are also citizens who bear a duty to support and comply with the institutions of their society (provided those institutions are reasonably just). And the standards of justice applying to persons collectively, through their institutions, are more demanding than those that apply to them severally.
Social institutions must treat all members of society as equals. Treating all members of society as equals entails, according to Rawls, not allowing the differences in their life prospects to be dominated by morally arbitrary facts about them. The contingencies of one's social position at birth and of the natural hazards of inherited talents are morally arbitrary in this sense, Rawls famously argued.
He insisted, at the same time, that morally arbitrary inequalities are, in themselves, neither just nor or unjust. What is just or unjust is how social institutions deal with them. A just society need not and, perhaps, should not offset all the consequences of morally arbitrary differences. Justice may permit the more talented to enjoy extra benefits from their superior talents, provided that the resulting inequality is necessary for making the less talented as well-off as possible.
I shared the reservations numerous critiques leveled at this principle (the celebrated “difference principle”) but, like many of them, I recognized the importance of Rawls's claim that the principles of justice must somehow respond to the distinction between what individuals can and what they cannot be held responsible for, and I admired the complexity of his reasoning from that distinction to the principles of justice as they apply to social institutions (to the “basic structure of society,” as he called it).
Thomas Nagel, Equality and Partiality
Reading Rawls left me with many questions. Prominent among these was the one related to the duality—of crucial importance for the Rawlsian theory—of the institutional rules applying directly to individuals, in their capacity as private persons, and those applying to them collectively, through the political institutions. This duality seemed to identify, in different terms, the same phenomenon that Marx described as a split between the Bourgeois and the Citoyen, and what he judged to be a symptom of the alienation characteristic of the liberal order.
Nagel helped me to put the Marxian critique in proper perspective. He pointed out that the duality in question is an irreducible feature of human ethical outlook. Individuals lead their own lives; they have their personal aims, desires, projects, and attachments. It is an ethically significant fact about them that they each have their own personal perspective from which they assess the options open to them. It matters that they lead lives they affirm and have good reason to affirm. Yet this is equally true about all of them. If it matters that my life goes well, than it matters equally that your life goes well. Recognizing this amounts to adopting an impersonal perspective. From this perspective, I am just one individual among the many; it has no significance that I am I, or that my life is mine.
Both perspectives are ethically significant; neither one is supposed to displace the other. But their duality raises a problem of reconciliation. While interpreting Rawls as proposing a kind of moral division of labor between human persons and social institutions (individuals are left free to pursue their personal aims within the constraints of the duties of forbearance, since egalitarian justice is secured by the institutional order), Nagel recognizes that the moral division of labor, as it is implemented in our societies, runs into a motivational difficulty. As long as individuals are left free to pursue their partial aims, the duties they owe to each other collectively as citizens are threatened to become motivationally inert. Nagel rejects the Marxian utopia of abolishing the distinction between the personal and the impersonal, but he agrees that the integration of the two perspectives into a coherent ethical outlook is a political task, and an unfinished one at that.
Václav Havel, “The Power of the Powerless”
In the last fifteen years of the communist regime, I took part in what was called in my country the democratic opposition. Havel's essay was the most influential attempt to make sense of the experience of people like myself, whom he called, following the Western press's labeling, “dissidents.” Ours was a nonviolent movement, but it lacked avenues for a peaceful change of government, or so it seemed at the time of its beginning. Thus, it was a movement of the powerless. Nonetheless, although powerless, Havel argued, dissidents had a kind of power, specific to them. It was a power stemming from their ethical choice to live in truth.
The communist system drew for its stability on pressuring virtually everyone into accepting the need to live in lie, or so the argument went. Its ideology expressed an aspiration to change man and society radically; however, it abandoned quite early that revolutionary aspiration. The subjects were, however, expected to pay lip service to the ideological tenets neither the rulers nor the ruled believed anymore. Lack of belief was not seen to be a defect; rather, it was understood to contribute to cementing the regime. People who were ready, publicly, to pronounce statements they held and were known to hold false diminished themselves. Demoralized people do not rebel. Nor do they expect each other to rebel. They assume that submissiveness is the general norm, and they readily follow the norm.
The dissident movement showed, according to Havel, that this commonly held assumption was false. The power of the powerless resided precisely in their giving testimony that living in lie is not the normal way for a human being to live. Living in truth came at a price, to be sure. Still, Havel insisted, for someone who chose it, the dignity of taking responsibility for oneself and for the world had a value that no benefits offered in exchange for accepting living in lie could outweigh. Because humans are finite, imperfect beings, they can be made resign to living in lie, Havel argued. And yet, since they are, deep in their heart, moral beings, everybody can have their moment of breaking with the life led in lie. This essential openness of human nature to the appeal of living in truth is what makes the example set by people who have already chosen such a life extremely dangerous for oppressive regimes.
I found Havel's claim that the opponents of the communist system can rely on the motivating force of moral reasons extremely important. Nevertheless, I was troubled by the view, lurking in the background of his position, on the relationship of moral and nonmoral reasons, in general, and their relationship in politics, in particular. I found it unhelpful to view human beings as moved either by motives that make them choose living in lies or by redeeming motives that direct them to choose living in truth. I thought that when people choose wrongly, this is not, in general, because they are indifferent to the claims of morality. That the moral motives may be defeated when the nonmoral costs are too high is not evidence that they might not work at all. Lower the costs of being moral and morality gains the chance of winning. (This is a point on which, decades later, I elaborated in some detail in my book, Politics as a Moral Problem.)
So I was reticent to subscribe to the proposition that people ought to stop participating in the system of lies by simply making a radical choice to live in truth, no matter how high the costs might be. I thought, rather, that dissident politics ought to aim at showing that the costs of acting in accordance with one's moral and political beliefs were already lower than past experience made them believe they were, and at contributing to reducing those costs even further.
This brought me to abandon another idea dear to Havel. He was hoping that the politics of living in truth as he understood it, beyond contributing to undermining the communist regime, would provide a blueprint for political action that, unlike the politics in Western democracies, is through and through moral and would take no guidance from “consumerist” interests at all. Since I did not share the dismissal of citizens’ desires to have access to the material means of living well as individuals, underlying Havel's hope, the encounter with his essay created the impetus to commit myself to an ideal of democracy as a political system that makes the government responsive to the citizens’ concerns about not just the general good but their own well-being as well.
Ronald Dworkin, “The Moral Reading and the Majoritarian Premise”
My understanding of rights and justice made me reject any view of the responsiveness of democratic governments to the citizens’ concerns that would interpret this as a duty to straightforwardly maximize aggregate welfare. It was natural for me to see this responsibility as subject to the constraints of individual rights and to the requirements of distributive justice. This consideration attracted me to a constitutional conception of democracy. In constitutional systems, individual rights and the principles of equal treatment are entrenched in a higher-order legal document, and ordinary legislation by elected representatives is subjected to a review in light of that document.
Originally, my understanding of constitutional democracy was fairly simplistic. I tended to view it as a compromise between democratic equality embodied in the procedural principle of majority rule, and liberal equality ensured by the constitutional restrictions imposed on the rule of the many through their representatives.
Dworkin's article, written as an introduction to his Freedom's Law, made me understand that the compromise view was unappealing and mistaken. If majority rule is a correct specification of what democratic equality requires, then the compromise brings with it a moral loss and so constitutional democracy is morally tainted even at its best. Rather than stopping at an embarrassing combination of apparently incompatible principles, one should attack majoritarianism head-on.
The law of a polity purporting to be democratic is not made and enforced in the name of the majority but, rather, in that of the citizenry as a whole, including the dissenting minority. The claim that those on whom the law is coercively imposed are—as a community—its ultimate authors must be justified to each individual citizen. It must be shown to them that they have an equal status as full members of that community, even when their views are defeated.
According to the majoritarian conception, the requisite justification is provided by the fact that, under the majority rule, each voter has an equal voting power. Dworkin answers that the one-person–one-vote principle symbolically affirms the status of citizens as equals but is insufficient for fully establishing it. The question whether the law of a political community treats everyone with equal concern and respect is, primarily, a result-driven question. It depends, for its answer, on how citizens are treated by the law that emerges from the political process.
If this is so, then democratic decisions need not necessarily be adopted in accordance with the majority rule. The symbolic meaning of the one-person-one-vote principle can be preserved even when the great moral importance of an issue recommends deciding by a supermajority. And judicial review can enhance rather than diminish the democratic nature of collective decisions if it raises the probability that the laws of the land respect the equal status of all. There is no necessary conflict between democratic equality and liberal equality. The compromise view I naively adopted is false.
Jeremy Waldron, Law and Disagreement
Waldron's book drew my attention to a further, even more serious simplification to which I had fallen victim when I embraced the idea of constitutional democracy. I tended to think that the constitutional interpretation of democracy emerges as a straightforward implication of the rights thesis. If individual rights constrain the range of the collective goods a community is allowed to pursue, then, I thought, it follows, without further argument, that majority legislation must be limited by constitutional safeguards and made open to review for its constitutionality.
The core contention of Law and Disagreement is that the alleged implication does not hold. It is one question, whether—as the rights thesis holds—the rights of individuals remove certain ways of promoting the good from the menu of morally permissible options. And it is quite another question, how a community whose members disagree on pretty much everything, including the question of the scope, content, and status of individual rights, can decide which conception to adopt as its official conception on controversial issues, such as that of the relationship between rights and collective goods. The question of whether democracy, properly understood, implies constitutionalism cannot be answered by the rights thesis alone. Some further premise is needed.
The relevant premise, according to Waldron, spells out the fact of disagreement. Advocates of constitutionalism tend to argue that since majorities and minorities disagree, vulnerable minorities must be protected against the tendency of powerful majorities to enforce their own controversial beliefs on rights. But Waldron objects that if the disagreement is genuine, then the constitutional restrictions, rather than protecting the rights individuals actually possess, have simply given ascendancy to the beliefs of past majorities and present minorities over those held by present majorities on the nature and scope of those rights. The fact of reasonable disagreement leaves us with no alternative but to adopt a decision procedure that is fair, and fairness privileges majority rule over its rivals.
I remained doubtful as to this conclusion. However, I found important and illuminating Waldron's meticulous distinction between the substantive moral question of what rights individuals have and how those rights relate to the goods people may want to promote collectively, on the one hand; and the procedural question—on the other hand—of how a community divided by this question can reach a common answer to it, such that even those who disagree can accept it as legitimate. It sets, I thought, the framework within which the issue of constitutionalism is to be discussed.
How the argument should proceed within that framework is a different matter. It belongs to the story of my responding to the works the influence of which marked my intellectual journey from revisionist Marxism to egalitarian liberalism, not to the way they affected that process.