civility as political constraint

WILLIAM A. EDMUNDSON

CIVILITY AS POLITICAL CONSTRAINT �

ABSTRACT. The everyday virtue of civility functions as a constraint upon informal socialpressures. Can civility also be understood, as John Rawls has proposed, as a distinctivelypolitical constraint? I contrast Rawls’s project of constraining the political with Mill’s ofconstraining both the social and the political, and explore Rawls’s account of the relationbetween the two. I argue that Rawls’s political duty of civility rests on the assumptionthat the political is peculiarly coercive; ignores the social enforcement of morality; andimplausibly has civility apply to motives in acting, rather than to actions.

KEY WORDS: civility, coercion, Mill, Rawls

Politics is largely a matter of enforcing what are supposed to be, in somesense, moral requirements, and political philosophy is largely the study ofconstraints on the political. By “constraint” I mean a moral requirementthat in normal circumstances takes precedence over the pursuit of goodconsequences, whatever one’s theory of good consequences may be.1 Inthinking about any given (purported or actual) constraint on politics, thequestion naturally arises: is this a constraint on politics, that is, is it onethat curbs only the state and efforts to direct the state, or is it a generalsocial constraint? Another question is: to what does this constraint apply –to actions? motives? persons? institutions? And yet another is: what otherconstraints operate in the neighbourhood, which the one under study mayconflict with or reinforce (or perhaps duplicate or disguise)? I want todirect these questions toward civility as a political constraint.

A constraint is a type of moral requirement, and all moral require-ments entail some permissible means of social enforcement – by “means” Iintend to include such things as education, censure and ridicule, as well ascompulsion, threats and punishment. In exceptional circumstances it maybe inefficient or unwise for society to enforce a given moral requirement –for example, if Fagin will blow up the world if anyone tries to tell Oliverthat stealing is wrong. But such exceptions do not disprove the entailment;the permission to enforce is a prima facie one, on the same pattern as, say,

� The author would like to thank Steve Rieber, Rebecca Barrett, Tiffani Moody and ResPublica’s referees for their comments and recommendations.

1 See Shelly Kagan, Normative Ethics (Boulder: Westview Press, 1998), 72–84.

Res Publica 8: 217–229, 2002.© 2002 Kluwer Law International. Printed in the Netherlands.

218 WILLIAM A. EDMUNDSON

the prima facie duty not to steal. To say that genuine moral requirementsentail some morally permissible means of enforcement is not to fall intothe error of confusing the socially sanctionable with the morally required.The permissibility of a social sanction is not the ground of the moralrequirement, but its necessary consequence.2

To say that a moral requirement entails the permissibility of someenforcement measure is not to say that anybody and everybody can dowhatever it takes to see that the requirement is observed and violationscorrected. The social enforcement of morality is itself limited by moralconstraints that dictate who may enforce, on what occasion, and by whatmeans and to what degree. Some moral requirements are such that compli-ance may be compelled and violations punished; others are subject onlyto suasive enforcement; and many are enforceable only at the option ofpersons suitably related to the violator. Detecting transgressions is likewiseconstrained.

Our perception of what morality requires is mediated by a networkof norms that restrict the morally permissible agents and means of socialenforcement. These constraints can be thought of as standing and propor-tionality norms. As soon as we notice these norms we see them all aboutus: you may wrestle the bicycle thief to the ground to recover your bicycle,but you may not shoot her; you may complain to your pregnant spousethat she should not smoke, but I ordinarily may not. But try to imagine amoral requirement incumbent upon you that was surrounded by standingand proportionality norms so strict that no one else had a moral permissionto so much as censure an obvious violation. The much-abused notion ofconscience cannot, I think, rescue this imagining from unintelligibility, butI won’t labour the point here.3

Civility, in an everyday sense, refers to these types of norm. Civility ismost required in our dealings with people whose conduct merits censure orridicule, even suppression. Civility is a network of constraints on the socialenforcement of morality, and no harm is done if civility is thought of as a‘second-order’ duty or virtue in this sense. Now I return to the first questionstated earlier: is civility a political constraint, beyond its more familiarrole as a social one? Contrast Mill’s harm principle. Mill thought that theharm principle constrained both the social and the legal enforcement ofmorality. He appears to have held what Joel Feinberg calls a “perfect coin-cidence” view, according to which the spheres of the morally required and

2 Cf. P.M.S Hacker, “Sanction Theories of Duty”, in A.W.B. Simpson, ed., OxfordEssays in Jurisprudence (Second Series) (Oxford: Clarendon Press, 1973), 131–70.

3 See my Three Anarchical Fallacies: An Essay on Political Authority (Cambridge:Cambridge University Press, 1998), ch. 7.

CIVILITY AS POLITICAL CONSTRAINT 219

the legally requirable coincide. The harm principle applies equally, and onidentical grounds, to informal social pressure and to formal legal sanctions,although expediency might favour social rather than legal enforcement ofcertain moral requirements (or vice versa). In this sense, the harm prin-ciple, as Mill proposed it anyway, is not a distinctively political constraint.4

My question is: is a duty of civility a political constraint?Contemporary political philosophers, and John Rawls most notably,

have defended a neutrality thesis, namely the thesis that the state actsillegitimately if it seeks to impose a particular conception of the good uponthose who might reasonably disagree. One way of picturing this idea is toimagine an inner sphere of morality that is the arena of comprehensive butcontroversial conceptions of the good, and another, outer, sphere whichis governed by public values no reasonable person could reject. Politicaland, particularly, legal enforcement is constrained from entering the innersphere. This way of understanding the neutrality thesis seems to representit as a distinctively political constraint and, to that extent, inconsistent withthe perfect coincidence view. But it is not clear whether this is indeed thebest way to understand Rawls and the contemporary neutrality thesis.

Drawing upon the idea that there is a diversity of goods that personsin the free exercise of their moral powers might reasonably choose topursue (“the fact of reasonable pluralism”), the fact that moral judg-ment is ineluctably hindered when our limited intelligences confront thecomplexity of human affairs (“the burdens of judgment”), and the fact

4 It is true that Mill seemed to doubt that what he called imperfect duties were legallyrequirable but, it should be noted, his doubt also extended to the issue of whether theywere moral requirements, properly speaking. A baffling passage in Utilitarianism makesone wonder, however:

[T]he idea of a penal sanction, which is the essence of law, enters not only into theconception of injustice, but into that of any kind of wrong. We do not call anythingwrong, unless we mean to imply that a person ought to be punished in some way orother for doing it, if not by law, by the opinion of his fellow creatures; if not by opinion,by the reproaches of his own conscience.

– John Stuart Mill, Utilitarianism (Indianapolis: Bobbs-Merrill, 1957), 60 (emphasisadded). The concluding clause involves “a step of some magnitude”, as H.L.A. Hart hasnoted (In “Legal and Moral Obligation”, in A.I. Melden, ed., Essays in Moral Philos-ophy (Seattle: University of Washington Press, 1958), 106–7). Here, Mill may simply beadverting to linguistic evidence rather than to his own view. He elsewhere opines that the“internal sanction” of conscience is “not innate, but acquired” (op. cit., 39), which suggeststhat he would have agreed that punishment by conscience is parasitic upon punishment byopinion. Mill may in fact have regarded the view I state here as too weak; for he seems tohave believed that the performance of any genuine moral duty is compellable or, at least,that a person under a moral duty has no right to complain if she is compelled: see ibid.,60–1.


that no comprehensive doctrine could possibly attain universal assentwithout the application of necessarily coercive state power (“the fact ofoppression”),5 Rawls derives both a “Liberal Principle of Legitimacy” –

our exercise of political power is fully proper only when it is in accord-ance with a constitution the essentials of which all citizens as free andequal may reasonably be expected to endorse . . .

– and also a “duty of civility”:

since the exercise of political power itself must be legitimate, the idealof citizenship imposes a moral, not a legal, duty – the duty of civility –to be able to explain to one another on . . . fundamental questions howthe principles and policies they advocate and vote for can be supportedby the political values of public reason.6

Rawls’s neutrality idea thus has two components: a principle circum-scribing the legitimate exercise of state power, and a separate principledefining a moral duty incumbent upon all citizens of the just (or nearlyjust) state. To put the point differently, the Liberal Principle of Legitimacydefines what the state may properly do; the duty of civility delimits whatcitizens may properly call upon the state to do.

The Liberal Principle of Legitimacy is a political constraint in the sensethat it would disallow a class of constitutional arrangements (or, moreprecisely, actions taken pursuant to such arrangements) no matter howdesirable those arrangements (or actions) might otherwise be. In line withhis recent focus on the problem of stabilizing a liberal constitutionalismthat is emphatically centrifugal in its cultural aspect, Rawls goes on toinvoke a duty of civility to bring political constraint into the moral lives ofindividuals.

This duty of civility is defined with reference to the “political valuesof public reason”. These are contrasted with what Rawls terms “compre-hensive philosophical doctrines”. His view is that in a liberal societythere will always be an ineliminable (and ever proliferating) plurality of

5 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 37.6 Ibid., 137, 216–17. Compare Kant’s “transcendental formula of public right” in Kant’s

Political Writings, Hans Reiss, ed. (Cambridge: Cambridge University Press, 1991, 2nd.ed.), 126. The duty of civility described here is importantly different from the duty ofcivility invoked in A Theory of Justice (Cambridge, Mass.: Harvard University Press,1971), 355, which was a natural duty “not to invoke the flaws of social arrangementsas a too ready excuse for not complying with them, nor to exploit inevitable loopholesin the rules to advance our interests”. Its function was to assure that there was a duty tocomply with the not-too-grossly unjust laws inevitably served up by the nearly-just state.No obvious logical link exists between Rawls’s 1971 conception and the 1993 conceptiondiscussed in the text; space limitations prevent my exploring that issue.


conflicting comprehensive religious, moral and philosophical doctrinesthat citizens will naturally be tempted to try to impose upon one another(directly or indirectly) through the political process. Although no suchdoctrine can count as “reasonable” if it rejects the idea of democracy,all relevant comprehensive doctrines will encompass tenets that, thoughreasonable for adherents to hold, non-adherents might reasonably reject.Therefore the dynamics of political life would be unstable, and the liberalstate would tend to delegitimate itself, unless political discourse wereconfined to positions that can be defended with reference to a core ofideas that Rawls calls “the political values of public reason”. As longas these values enjoy an “overlapping consensus” of support from thediverse, competing, comprehensive (and reasonable) doctrines representedin society, and so long as citizens honour their duty of civility, the problemof stability is manageable.7

What are these “political values of public reason”? Whereas non-publicreason may make an appeal to what is “right and true” without limitation,the content of public reason is a set of substantive principles of justice(given by “what the political conception of justice requires of society’sbasic institutions, and of the purposes and ends they are to serve”) and“guidelines of inquiry” which are compatible with each citizen’s status as“free and equal” and which, as far as possible, “rest on plain truths nowwidely accepted, or available, to citizens generally”, – or, in other words,on “presently accepted general beliefs and forms of reasoning found incommon sense, and the methods and conclusions of science when theseare not controversial”. The doctrines that survive this screening will neces-sarily be (“politically”) liberal, but will not be identical in their principles,much less in their details. An orderly political contest over time is to decidewhich among them, “if any, is most reasonable”.8

The duty of civility requires that citizens not vote in any way thatthey would not be permitted publicly to advocate. Although discussionand decision-making within “background culture” associations such aschurches and labour unions need be guided only by the “social reason”appropriate severally to them, and within families by “domestic reason”,in the political arena and wherever the application of political power is atissue, each individual’s participation both in discussion and (by voting) indecision-making must be circumscribed by the values of public reason.9

Although on Rawls’s most recent account, reasonable comprehensivedoctrines “may be introduced in public reason at any time”, this is subject

7 Political Liberalism, op. cit., 131–58.8 Ibid., 212–27.9 Ibid., 216–27.


to what he calls “the proviso”, namely “that in due course public reasons,given by a reasonable political conception, are presented to supportwhatever the comprehensive doctrines are introduced to support”.10

Rawls rejects the suggestion that this conception of neutrality entailsmoral skepticism or anti-realism, and he has disavowed his earlier intim-ations that morality as a whole might be reconstructed on the foundationsof the theory of justice. The duty of civility, then, is not intended to governthe social enforcement of morality generally – even though “the fact ofreasonable pluralism” and the “burdens of judgment” would seem to be astelling in the sphere of social enforcement as they are in the sphere of thepolitical.

Why the discontinuity between Rawls’s basic project and Mill’s? Thatis to say, why does Rawls propose to constrain the political only, whileMill embraces as his necessary task that of constraining the social as wellas the political? The difference can be accounted for this way: Rawlsconceives the state as peculiarly coercive, while Mill saw state and societyas equally prone to oppress. Mill was familiar with the constraints ofmonolithic, Victorian, social opinion, and was concerned only secondarilywith their enforcement by the state. Rawls, on the other hand, confrontedtwentieth century societies that had become, in his view, intrinsically plur-alistic and centrifugal. For Rawls, unlike Mill, social homogeneity is not apresent problem but, therefore, social cohesion is not a given: what mustbe resisted is the temptation to apply coercive state power to achieve it.

Rawls’s determination to concentrate on the state and other large orga-nized mechanisms as a “basic structure”, distinguishable both from societyat large and the moral situation of individuals, characterizes, for example,his approach to distributive justice. The just state manages inequalities,thereby freeing its citizens to concentrate on accumulation, if they wish.11

It would also account for Rawls’s ambivalent pursuit of his early classific-ation of the family as part of the “basic structure”.12 Feminists in the agora,Rawls concedes, are free to be patriarchs at home, provided that the homeis in no sense an extension of the agora – but Rawls hasn’t said whether ornot the provision is satisfied.

10 Ibid. (paperback ed., 1996), li-lii. This is what Rawls terms the “wide view ofpublic reason”. He nowhere addresses the complications that secret balloting (or any voteunaccompanied by an explanation) raises for the wide view.

11 See G.A. Cohen, “Where the Action Is: On the Site of Distributive Justice”, Philos-ophy & Public Affairs 26 (1997), 3–30; cf. Liam B. Murphy, “Institutions and the Demandsof Justice”, Philosophy & Public Affairs 27 (1998), 251–91.

12 See Susan Muller Okin, Justice, Gender, and the Family (New York: Basic Books,1989), 22, 96–7, 108. Cf. John Rawls, “The Idea of Public Reason Revisited”, Universityof Chicago Law Review 64 (1997), 765–807, pp. 787–94.


Because Rawls’s political duty of civility applies to voting (even bysecret ballot) as well as to advocacy, its point of application movesinward; civility forbids casting a ballot for reasons that are non-public.For example, suppose that on a certain issue I cobble together and evenoffer to others a “public reason” argument for voting “Yea”. I am unper-suaded by the public reason argument, but I also have a non-public reasonto vote “Yea”. May I vote “Yea”? Rawls must say not; for otherwise,“public discourse runs the risks of being hypocritical: citizens talk beforeone another one way and vote another”.13 Civility in the social sense is,of course, more hospitable to hypocrisy; but the risks Rawls adverts tolie beyond that fairly benign vice and implicate his basic concern withstability and legitimacy. Unless motives in voting were constrained in thesame way as positions advocated, civility as a political constraint wouldbe ineffectual. A stable popular majority espousing public reasons butvoting its (non-public) conscience could enforce its comprehensive viewsupon reasonable dissenters, or – equally deplorably – shifting majorities orcontentious pluralities might make the public arena the site of an unstablemodus vivendi ever liable to degenerate into a sectarian battleground.14

If Rawls’s duty of civility were applicable to individuals on all moralquestions whether or not posed in the context of political action, its scopewould of course have been dramatically enlarged (and its plausibilitycoordinately diminished). The duty of civility, so viewed, would func-tion in much the same way as the standing and proportionality normsthat constrain the social enforcement of morality, but would take specialaccount of the motives of the enforcer – asking, in effect, if this applic-ation of social pressure is grounded in public reason or if it is meant toadvance a comprehensive conception of the good. Suppose, for example,that reasonable people may disagree as to whether spanking a child iswrong, but that there is no room for reasonable disagreement as to whetherchaining a child to the furnace in the basement overnight is wrong. In otherwords, public reason affords resources for condemning the latter, but notthe former. Although any of a number of reasonable comprehensive viewsmight condemn spanking, many may not; and, in fact, may specificallyapprove of it, perhaps even demand it. If the permissible means of parentaldiscipline is (like the permissible means of criminal punishment) a matterof basic justice, then Rawls’s duty of civility would allow both legal andsocial sanctions against the parent who chains the child in the basement;but it would constrain advocating or voting for a legal ban on spanking,

13 Rawls’s distinctions between “exclusive”, “inclusive” and “wide” views of publicreason do not affect the present point.

14 Political Liberalism, op. cit., 215.


and would also – if expanded to encompass the social – constrain theuse of social pressure. One significant exception: Rawls allows that withinassociations, such as churches, and within families, social pressure againstspanking might be appropriate even if justified solely by an appeal to “thewhole truth” about the proper rearing of children.

Rawls might at this point inject doubt as to whether legal controlover the forms of family discipline is a “constitutional essential or matterof basic justice”. Rawls gives no clue as to whether it is, and he isnoncommittal as to whether the strictures of public reason apply only toconstitutional essentials and matters of basic justice or “all the way down”,to reach such matters as tax policy, regulation and subsidies. Furtherobscuring his view, he does not address the question of whether or notthe very issue of a matter’s status as a constitutional essential or matter ofbasic justice is itself a constitutional essential or matter of basic justice.Merely to advert to the distinction is insufficient as a guide to when andwhere the strictures of public reason are to apply.15

On the present interpretation, Rawls seems to leave little scope for thesocial enforcement of morality. The “background culture” is, for Rawls,simply an arena of non-public reasons belonging to one or another associ-ation – church, learned society or club – and their several comprehensiveviews. “Social reason”, as he conceives it, is tied to such associations.“Domestic reason” – distinguished, without explanation, from socialreason – is tied to the family. The rest is governed by “public reason”.The sanctions of “social reason” as Rawls conceives it are avoidable byresigning membership in the relevant association: change churches, dropout of the union. Because the sanctions such associations bring to bear arenot political – that is, not essentially coercive – they need not be subject tothe discipline of public reason.

If Rawls (so interpreted) is right, there is no social morality apart fromthe focus of some intermediate association. When we apply social sanc-tions we must be ‘coming from’ somewhere, that is, invoking the normssupported by some group or another: although there are personal values,in Rawls’ view “there is no such thing as a private reason”.16 Outside suchgroups there lies only the state, the “social union of social unions”.17 Socialsanctions are nothing much to worry about, perhaps, because they emanateeither from a social union that the aggrieved individual may either take orleave, or from the state, and are therefore subject to the rigour of publicreason. Either way, no point of origination remains for social pressures

15 See Political Liberalism, op. cit., 214–15.16 Ibid., op. cit., 220, n. 7.17 A Theory of Justice, op. cit., 827.


motivated by reasons that one may reasonably reject. Political pressuresare governed by public reason; social reasons emanate from groups thatone may avoid; and domestic reasons can be escaped by leaving home orreaching the age of majority.

Rawls’s neutrality looks inimical to the perfect coincidence viewbecause it partitions moral requirements into two classes: those that areconsistent with public reason, and those which are grounded only in somecomprehensive doctrine (even liberalism, qua comprehensive doctrine,is excluded from public reason). The inner sphere of morality couldbe defined as that determined by the true comprehensive philosophicaldoctrine, whatever that is, and if it is. The inner sphere is not legitimatelypolitical because to advocate or advance its legal enforcement (assumingcircumstances of near-justice) would violate the duty of civility. The outersphere, on the other hand, is occupied by the product of the politicalvalues of public reason, supported (in favourable circumstances) by theoverlapping consensus of reasonable comprehensive doctrines. It is a polit-ically enforceable morality consistent with, or at least not too seriously atodds with, each of the reasonable comprehensive doctrines represented insociety.

But does Rawls, in fact, allow for an inner sphere? If not, his is aperfect coincidence view; though it becomes one by dispelling the innersphere altogether, rather than by expanding it to the extent of the political.The inner sphere, recall, is a sphere of genuine moral requirements; andgenuine moral requirements (if I am right) entail some permissible socialsanction. Although Rawls is officially agnostic on meta-ethical issues, hedoes make clear that competing demands of different reasonable compre-hensive views are demands that it would be reasonable to reject. If theinner sphere is composed of moral demands that it would be reasonable toreject, it is difficult to see how they could be permissible to enforce even bymerely social measures. “The mere expression of disapproval – the raisedeyebrow or the icy stare – may be felt as a positive show of force”, asJeremy Waldron reminds us.18 By what right may another presume to forceme to accept what I reasonably reject? (How uncivil!)

Rawls’s suggestion is that these requirements are permissible to enforcebecause, and insofar as, they are ones that we affirm by subjectingourselves to those very pressures. They are self-imposed, “freely accepted,politically speaking”,19 even if not in any other sense. Thus, if one’sMormonism exposes one to social pressure to cease one’s adultery,

18 Jeremy Waldron, Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cam-bridge University Press, 1993), 75.

19 Political Liberalism, op. cit., 222.


the permissibility of the social pressure rests in one’s acceptance ofMormonism, not in the wrongness of adultery. But if this is the correctreading of Rawls, the inner sphere collapses to the dimensionless pointof personal acceptance, which I may avoid simply (though perhaps noteffortlessly) by switching doctrines. On inspection, Rawls’s may turn outto be a perfect coincidence view malgré lui.

Whether or not Rawls’s is a perfect coincidence view, there are severalgeneral points worth noting. The first is the unlikelihood that there is,in fact, a duty of civility as Rawls and others have defined it. KentGreenawalt and Michael Perry have pressed the point that it demeansreligious believers to suggest that, in voting or discussing public issues,their comprehensive views are ones that they may pursue only to the extentthat they coincide with the views of nonbelievers.20 It would be unreason-ably onerous as well, in its imposing a strenuous motivational hygiene oneveryone holding (as all are assumed to hold) a comprehensive view: forall, as citizens, would be duty bound to take care that their grasp of ‘thewhole truth’ not contaminate the permissible ‘public’ set of reasons thatalone may properly motivate political discourse and conduct. Some wouldargue that if an actor has both reason r and reason q to φ, and does φ,she cannot be said to have chosen to φ for reason r rather than reasonq.21 Whether this is so or not, it is no doubt difficult to know that one hasφed for reason r rather than reason q. If, for example, I know I am biasedagainst Ivy League graduates, but also have independent doubts about aparticular job candidate, I may never know whether my vote against himwas tainted by bias.

The duty of civility is satisfied, apparently, as long as the actor’s act isat least a partial product of public reason. Normally, though, even wherewe judge that an action produced by a mixture of proper and impropermotives is sustainable, we would hold that the best course is for the actor totry to extirpate the improper motive altogether from his psychology. As tothe non-public reasons furnished by reasonable comprehensive doctrines,Rawls would presumably reject such an approach. Would he then saythat it is permissible for an actor to allow non-public reasons to influenceher advocacy and voting on constitutional essentials and matters of basicjustice so long as those reasons do not causally predominate in determ-ining her action? This would license sailing very close to the wind. But the

20 Kent Greenawalt, Religious Convictions and Political Choice (New York: OxfordUniversity Press, 1988); Michael Perry, Love and Power (New York: Oxford UniversityPress, 1991).

21 E.g., Michael Moore, “Authority, Law, and Razian Reasons”, Southern CaliforniaLaw Review 62 (1989), 827–96, pp. 878–83.


only alternative would be to require the actor wholly to disable her non-public reasons with regard to such matters. This, as Perry and Greenawaltobserve, is a stricture as hard to accept as it would be to implement.

It might be argued that implementation of the duty of civility should nottrouble us too much, because a supreme judiciary, as exemplar of publicreason, can tidy things up – as in fact the Liberal Principle of Legitimacyseems to require. At least as to matters of “constitutional fundamentals”,an expert judiciary, Rawls proposes, shall “appeal to a political conceptionof justice [viz., public reason] to distinguish those questions that can reas-onably be removed from the political agenda [. . .once and for all. . .] andthose that cannot”.22 Judges, if not citizens, can be counted upon to sort outthe ideas implicit in the political – as opposed to the social – backgroundculture, and separate them from what are merely projections of their own orsome other, perhaps even dominant, comprehensive view. But this simplytransfers the difficulty from the citizen’s shoulders to the judge’s. No one,not even the fairest, the most dispassionate, can – like a mirror held to amirror – reflect nothing but what is reflected in an “overlapping consensus”of viewpoints that she judges to be reasonable ones to reflect.23

Although I think there is much to these points, I would like to stressanother, namely that society does not so neatly decompose into an over-lapping montage of voluntary “social unions” in the way Rawls indicates.Each of us is constantly subject to non-legal social pressures that donot emanate from co-members of any identifiable voluntary association.I ignore here the adventitious groupings – the Hoosiers and other “granfa-loons” that Kurt Vonnegut has brilliantly mocked – that lack the regularityand cohesiveness necessary to support an identifiable set of conductrequirements. Whether we bowl alone or in leagues, most of the peoplewe urbanites encounter are strangers. Even so, there are norms of commondecency that we share (most of us) if we share little else. Many ofthese norms are moral requirements, and many of them are enforceableby quite serious, sometimes compulsory, means. Moreover, many of ourmore intimate relationships have no explicit ground rules. ‘Friendship’ and‘Romance’ are not clubs with by-laws that we may consult before joiningup. Yet here, too, the way we conduct ourselves opens us to manifoldpressures that we can hardly be said to have been free, at the threshold,

22 Political Liberalism, op. cit., 151.23 Rawls’s assurance, in ibid., 236, n. 23, that his view of adjudication does not differ

“in substance” from Ronald Dworkin’s, rests on an understanding of how “fit” with thebody of legal precedent operates as a curb on a Dworkinian judge’s reference to politicalmoral truth. Ken Kress has shown that Dworkin’s position is unstable, and tends inexorablyto favour moral truth over fit: see Ken Kress, “Why No Judge Should Be a DworkinianCoherentist”, Texas Law Review 77 (1999), 1375–428.


to take or leave, much less to pick and choose among. To classify suchnorms as parts of “the social, not the political ‘background culture’ ”,24 asRawls does, is to evade rather than to address the issues raised by the factof the social enforcement of morality.

Mill’s observation about social enforcement bears repeating here:although merely moral requirements are “not usually upheld by suchextreme penalties” as legal requirements are, social enforcement “leavesfewer means of escape, penetrat[es] much more deeply into the details oflife, and enslav[es] the soul itself”.25 Social pressure is not only intrusive,it can erode the spontaneity of individual choice more surely and moreextensively than any concern on the agent’s part to avoid mild or remotelegal consequences. As the late Ferdie Schoeman stressed, civility in theeveryday sense is a vital constraint on these pressures, however well-meantthey might be. It is curious that Mill, in perhaps a testy moment, disparagedas mere “notions of politeness”26 the standing requirements that limit ourexposure to officious commentary on our faults, those ‘merely bad’ traitsthat he would not confuse with wrongs, and thought not proper objects ofcensure.27

Everyday civility governs occasions of face-to-face engagement, andoften means changing the subject when disagreement looms. Politics –nowadays anyway – is different. Politics is impersonal and pervasive,and therefore avoidance has an altogether different character. Avoidanceleaves a status quo undisturbed, and typically that’s what someone wantsto change. Of course, if state action is subject to a separate moral constraintupon coercion, then avoidance may, in effect, be neutral. But if the viewthat the state is inherently coercive is rejected, as I believe it should be,then changing the political subject – whether by taking it off the agenda‘once and for all’ or by ‘benign neglect’ – is decidedly non-neutral, andought not be confused with extending the courtesy of civility to advocatesof reform.

If civility in the everyday, social, sense enjoins me to avoid the subjectwhen I would like to criticize you for spanking your children, why isn’t thislikewise leaving the status quo undisturbed – which is just what I want tochange? The answer is that the social proselytizer isn’t frustrated, properlyspeaking, by civility norms, while the political proselytizer is. To use amore topical example, a right-to-lifer has, I think, a right to make a case

24 Political Liberalism, op. cit., 14.25 On Liberty (New York: Liberal Arts Press, 1956), 7.26 Ibid., 94.27 See also Ferdinand David Schoeman, Privacy and Social Freedom (Cambridge:

Cambridge University Press, 1992), 24–36.


for legislation banning abortion, even by invoking ‘the whole truth’, butdoes not have a right to make that case ‘in the face’ of pregnant women atthe doorway of the abortion clinic. A judicial decree that a certain matter ishands-off to legislation ‘once and for all’ is worlds more frustrating than acivility norm or even a legislative decree requiring that demonstrators keepa decent distance from people whom they want to influence. Social civilityleaves alternative forums; political civility does not; and the idea that thestate rightly monopolizes punishment points to the reason why. (True, ifwhat a pro-lifer wants to do is to save Jane Doe’s foetus, there may beno practical alternative to haranguing her at the clinic door. Social civility,too, exacts a price.)

In summary, portraying civility as a political duty tends to distort it inthree ways. The portrayal treats as distinctively political what is familiarto us as a social constraint, but obscures the relation of the social to thepolitical. Secondly, the portrayal is pointless unless it has civility apply tomotives, rather than to acts, although as a social constraint civility works inreverse. Thirdly, in social settings we can leave a topic without deliveringa judgment. In the political realm, this is rarely an option; even a judgmentthat a certain matter is better left to the individual or to the market is togive effect to one agenda and to disapprove of another. To portray civilityas all that is due in such circumstances is to beg, rather than to avoid, thepolitical question.

College of Law and Department of PhilosophyGeorgia State UniversityAtlanta, Georgia 30302-4037USAE-mail: [email protected]

civility as political constraint

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