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Abstract

Can liberal ideals clean up dirty politicians or politics? This article doubts they can. It disputes that a ‘clean’ liberal person might inhabit the dirty clothes of the real politician, or that a clean depoliticised liberal constitution can constrain real world dirty politics. Nevertheless, the need for a democratic Prince to wear clean liberal gloves offers a necessary and effective political restraint. However, it also means that citizens share the hypocrisy and dirt of those who serve them - for we legitimise the dirtiness of politics by requiring politicians to seem cleaner than we know they ever can be in reality.
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Dirty Hands and Clean Gloves: Liberal Ideals and Real Politics
Richard Bellamy, University College, London (UCL)
Abstract: Can liberal ideals clean up dirty politicians or politics? This article doubts they can.
It disputes that a ‘clean’ liberal person might inhabit the dirty clothes of the real politician, or
that a clean depoliticised liberal constitution can constrain real world dirty politics.
Nevertheless, the need for a democratic Prince to wear clean liberal gloves offers a necessary
and effective political restraint. However, it also means that citizens share the hypocrisy and
dirt of those who serve them – for we legitimise the dirtiness of politics by requiring
politicians to seem cleaner than we know they ever can be in reality.
Key Words: Democratic politics, dirty hands, legitimacy, public, private, Machiavelli, Rawls,
Weber
With a few notable exceptions, politicians - even democratic politicians, who form the subject
of this article - do not enjoy a good press, either among philosophers or the wider public.
Cynicism provides the default position of most citizens in most of the world’s democracies.
As Michael Walzer famously remarked, it is the ‘conventional wisdom’ (that is, ‘the wisdom
of the rest of us’) ‘that politicians are a good deal worse, morally worse, than the rest of us’.
1
That common attitude can seem justified not just by the expenses and sex scandals that
periodically hit the headlines, or even the backbiting and backstabbing that attends most
ascents up the greasy pole of politics, but also by the need for democratic politicians to make
deals and compromises either to accommodate diverse groups and interests and build
coalitions between them, or to square the different and often conflicting moral concerns and
considerations present within hard cases and difficult decisions. Both the personal and the
1
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political compromises can make politicians appear untrustworthy, unprincipled, and
occasionally ruthless, hypocrites. Indeed, the tendency for the media to concentrate on the
personal improprieties of politicians as much as – in certain cases, even more than – their
public wrongdoing, can make it seem that the two are all of a piece. On this account, either
politics is dirty because those involved in it are, or it is a dirty business that appeals to dodgy
characters. Cleaning up political life, therefore, depends on either attracting a cleaner sort of
person into politics or depoliticising it as much as possible. This article disputes both these
views. Popular though these prescriptions are, neither seems to go to the heart of the ethical
problems surrounding public life.
There is little evidence that the personal morality of the average democratic politician
is worse than that of the average citizen. Politicians simply operate under the public gaze and
for the public good, so we know more about them and expect more of them. After all, the
incentives and opportunities of many private individuals to commit minor crimes and
misdemeanours can be as great if not greater than that of the general run of politicians. Their
doing so can even be as well known. But they rarely attract the same intensity or quality of
opprobrium. Within most working democracies, the financial gains to be made by fair means
or foul from politics are less than those available in business, while sports stars, actors and
musicians frequently enjoy greater social prestige and celebrity than politicians. The
corresponding economic and socio-cultural power exercised by these groups offer if anything
more potent occasions than political power for either fraud and deception or vain glorious
behaviour and sexual impropriety. Yet the few who succumb to these temptations are as likely
to attract envy or amusement as censure. Indeed, polls indicate that a high percentage of the
general population indulge in mild sexual and personal transgressions – be it cheating on
taxes or on their wives and husbands – with far less inducement. We know these facts about
2
ourselves yet desire better of those that represent us because we expect them to serve our
interests rather than their own.
Do such double standards make not politicians but us ordinary citizens the hypocrites?
Or does politics require we hold politicians to a higher standard of moral judgement to that
we would apply to ourselves? Most people do not have to read Adam Smith to appreciate that
supermarkets, trades people and all the other businesses and services we draw on to supply
our material wants do so not from an altruistic desire to meet our needs but in order to make a
profit and serve their own.
2
Nevertheless, we shrink from accepting that politicians might be
similarly motivated. In part, we do so for the good reason that markets and other social
activities are not entirely self-policing, nor would we be entirely happy with them being so.
So we look to politicians and other public servants to aim conscientiously at upholding the
public good, not least by regulating the activities of those - including ourselves - who might
be tempted to subvert it. However, this very desire contains a paradox. For the standard
required of politicians proves to be a different rather than simply a higher criterion to that
expected of private individuals – one that from the perspective of the citizen may well make
politicians appear worse rather than better than the rest of us. Yet, that appearance may be
illusory if, as often is the case, private virtue turns out to be public vice.
Public decisions differ from private ones in numerous respects.
3
They entail higher
stakes, involve more people, frequently deal with weightier matters, and typically involve
coercive means for their enforcement. As a result, there is more likelihood that some people
will lose that the greater good may prevail, that a poor or unlucky decision will have severe
consequences, that states and their agents may need to do things that private individuals
ought not to do, such as using falsehoods and violence, and that a degree of hard headedness
may be required to confront a difficult decision – be it a financial crisis or a military threat.
Therefore, in serving the public interest it will be hard for the politician either to act in the
3
same way as a good private person might be expected to do, or to be responsive to all our
private interests. So politicians will gain ‘dirty hands’ in part because those they serve (the
rest of us) make conflicting and exacting demands of them. For the sake of the common
welfare, they may be forced to renege on their supporters or win people over through flattery,
bribes or threats, and to commit acts which we would normally strongly disapprove of. To
secure the good, they may have to sacrifice the best. In so doing, they may need to acquire a
certain cunning and callousness. Thus, we expect politicians to be better than the rest of us in
pursuing the public rather than their personal good. Yet, because the public good is so hard to
realise – not least because we ourselves are less than perfect, or simply have different and
occasionally conflicting views of what it entails - they will be compelled to behave worse
than the rest of us and dirty their hands.. Hence the difficulty: we desire principled politicians
but expect – even oblige - them to commit unprincipled acts.
Some seek to get round this difficulty by conceiving the principles governing the
behaviour of politicians not as general moral principles, applying equally to private and
public life, but as sui generis principles of political morality.
4
These principles supposedly
reflect public reasons that all reasonable affected political actors, be they citizens or
ministers, would be able to accept – or at least not reject – because they treat them with equal
concern and respect in their capacity as reasoning agents who seek to pursue a variety of
different conceptions of the good within the same public space. The most ambitious schemes
seek to ground public policy on such reasons.
5
The less ambitious see such reasons as simply
defining the ground rules governing the necessary public interactions of free and equal
citizens.
6
As such, they offer side constraints on how any policy could be made or what its
content might be. Either way, the aim is to ensure the politician can act only in ways that
might be defended in the light of such public reasoning. The implication is that what could
4
not be so justified would be unjustifiable. So constrained, the scope for politicians to practice
the dark arts of politics will be suitably delimited.
However, this proposal succumbs to the further difficulty that the very aspects of
political life that differentiate public from private morality also undermine the possibility of
the consensual norms of public reason on which this thesis rests. The features of the public
sphere adverted to above as dirtying the hands of politicians can be related to what have been
called the ‘circumstances of politics’.
7
These circumstances reflect a situation where we need a
collectively binding agreement backed by state power, because our lives will suffer without it, yet
opinions and interests diverge as to what its character should be and no single demonstrably best
solution is available. Politicians have to operate not with the public reasons of ideally
reasonable agents, but the real reasons of the public which tend to reflect competing concerns
and complex situations.
8
Along with considerable empirical uncertainty as to the causes of
any problem and the likely consequences of different solutions to it, there will be normative
disagreements – some of them related to these empirical questions, others not - as to which
policies best promote, or are compatible with, equal concern and respect and ought to be
collectively pursued As a result, a key task confronting any politician is the reconciliation of
incompatible values reflecting distinct forms of social and moral reasoning. Yet, unlike
natural science, there is no agreed epistemology or method for selecting between these views
other than the process of politics itself. Conservatives, Liberals and Socialists, Utilitarians,
Kantians, Aristotelians and Nietzscheans, largely operate with different and incommensurable
justifications for their core beliefs that lead them to focus on different features of a given
policy and look to different sets of public reasoning to support their views. There is no
entirely ‘public’ way of resolving such disputes, no Archimedean position that unequivocally
pays equal concern and respect to all relevant, reasonable views in an uncontentious way.
Even a procedural device, such as voting, will be subject to these sorts of disagreements, such
5
as those relating to the fairness and appropriateness of different voting procedures.
Confronted with these plural and competing demands of citizens, it will be necessary for the
politician to juggle with different and occasionally incompatible kinds of public reason and
attempt to mould them into the semblance of a coherent policy. Public reasoning thereby
enters the realm of dirty politics. Politicians will be obliged to employ less than full candour,
using ambiguity and a certain flexibility in their own principles to address the various
competing constituencies among the public whom they must serve. Frequently, they will find
it necessary to practice a degree of double-dealing, making incompatible promises to
different groups to square the circle of irreconcilable interests and views, all possessing a
degree of legitimacy. Meanwhile, and for related reasons, they will be fated to do violence to
certain values and possibly forced to covertly employ the coercive power of the law to bring
at least some of those who disagree into line. As we shall see, the claim that a definitive set of
public reasons or form of public reasoning could constrain politics and cleanse it so as to
remove such political sleights of hand from collective decision-making involves a denial of
the pluralism of liberal societies and the diversity of pressures it generates.
As sections one and two aim to show respectively, these difficulties bedevilling both
a basic ‘human’ and a ‘public’ morality undermine the prospects of having either a `clean’
person behind the dirty politician or a `clean’ politics constraining the politician’s dirtiness.
Both possibilities have appealed to liberal idealists and to the rhetoric of rights. The first lies
behind the view of human rights as establishing universal duties to ‘humans as such’.
9
This
proposal overlooks how the very source of the dilemma stems from politicians having duties
related to their political role that cannot be read from or linked to whatever duties they may
have simply as persons- a notion that is itself hard to conceive of. The second lies behind
notions of constitutional rights as establishing the basis of a political system and thereby
sanitising politics by in certain respects ‘depoliticising’ it.
10
However, these schemes ignore
6
how such rights are themselves within the ‘circumstances of politics’, raising the self-same
dilemmas they are supposed to dissolve or control. Section three then looks at the realist
tradition of Machiavelli as updated for the democratic Princes of present day liberal
democracies by Max Weber.
11
On this account, politicians may need to act dirty, but they
must appear clean - not least because we expect them to be so, even if we know they cannot
be. Ultimately, the source of public reasons is the public themselves, and the limits of the
legitimate use of force and guile are what citizens judge proportionate to the task at hand.
Here, hypocrisy on both sides has what Elster, in another context, refers to as a ‘civilizing
effect’.
12
Seeming good even while having to learn to be bad offers the best we can hope for.
Politics is inevitably dirty, but public acceptability obliges politicians to wear clean gloves
and only employ those means required to achieve ends that serve public interests – or face the
electoral penalty for failure.
13
In which case, political theory does indeed need to get real,
though remaining clothed in a degree of liberal idealism.
Clean Persons: Can Politicians Wash Their Dirty Hands by Being Good Individuals?
It is tempting to believe that politics would be a great deal better if only good men and
women could be attracted into it. Yet the advocates of both liberal idealism and political
realism believe public/political ethics cannot be derived from personal morality,
though they
give very different accounts of what such a distinctive political morality entails. Indeed, in
different ways both consider that in certain crucial respects the good person is likely to be a
bad politician.
14
On the one hand, a public official may have moral obligations that are not
only different to but conflict with those that he or she may have as a private individual. On
the other hand, those public moral obligations may be not only non-derivable but also
7
detached from personal moral obligations. For, there may be no general moral obligations
that we have simply as persons which serve as their common core.
15
Both these views, but especially the second, are controversial. For example, Martin
Hollis quotes Thomas Jefferson as denying both by remarking (in a letter of 1809) that `I
never did or countenanced, in public life, a single act inconsistent with the strictest good
faith; having never believed there was one code of morality for a public and another for a
private man’.
16
Jefferson’s position certainly resonates with many of the more popular
critiques of politicians. Yet, in its simplest version at any rate, it seems simplistic. For a start,
most people acknowledge we have moral duties in the private sphere – to family and friends,
for example - that would be inappropriate to carry over to the public arena. Nepotism may be
allowable, even a parental obligation, with regard to the family firm, but we rightly question
it in the case of elected public office. In the circumstances of a sinking ship, most of us would
think it a mothers duty to prioritise getting her children into the lifeboats. Yet, if she is the
Captain it would be a dereliction of her professional obligations not to prioritise keeping the
ship afloat for as long as possible and an abuse of her position to treat her own children any
differently to other passengers.
17
Consistent moralists who stick rigidly to the clear cut moral dictates of their
conscience come what may, treating both private and public alike, seem similarly inept.
Theirs is the attitude of the saint, willingly embracing martyrdom rather than sacrifice
principle to expediency. That can seem appealing – we rightly admire the moral courage of
one who refuses to accept he could ever have a moral duty to be a concentration camp guard
and send Jewish children to the gas chambers. Yet, neither liberal idealists nor political
realists have regarded saints as suited to public life. The former fear their intolerance, the
latter their ineffectiveness. Going to the stake for your beliefs may be admirable in its way,
but for their different, if related, reasons Rawlseans and Machiavellians agree that one should
8
not expect to take others with you. Saints concede nothing either to those who hold different
moral views to theirs, or to the failure of the world to measure up to their expectations of it.
Personal salvation, be it in the hereafter or in their own estimate of themselves, permits them
either to keep their own hands clean but at the expense of leaving the rest of us in a dirty
situation, or to attempt to clean up us and the rest of the world whatever the dirtiness of the
cost. In both cases, heaven is purchased at a terrifying price - be it of allowing the rest of us
to go to hell or of creating a hell on earth to save us all.
As Sue Mendus has noted,
18
the position of the saint – what Weber called ‘the ethics
of conviction’ – reveals a potential tension between personal integrity and impartiality, be it
through showing the views of others equal concern and respect, or by attending to the
consequences of our actions for the greater good. Pluralism, either of views or interests, is
treated as error, while what Weber called ‘the ethical irrationality’ of the world, whereby
good – or well-intentioned – acts may give rise to bad results, a sign of its wickedness. Saints
keep their hands clean, but by ignoring the concerns of others and the need to treat them on a
par with their own – what Weber called ‘the ethic of responsibility’. Given that we expect
politicians to act for the public good – even if in so doing they go against their own interests
or beliefs – then preserving the moral integrity of a saint in public life seems not just
irresponsible but even immoral.
19
A more sophisticated version of personal moral integrity, though, might allow
conviction to be balanced by responsibility. The saint or a humanist moral absolutist might do
the right thing not to achieve personal salvation – a sort of moral self-interest – but because it
is the right thing.
20
Moreover, in a case where doing the right thing would have clear and
terrible consequences for many others, then a broader notion of keeping faith with one’s
principles suggests the right thing might be to modify that absolutist position, albeit with the
proviso that certain measures would be impermissible whatever the consequences.
21
Murder
9
is wrong but, in the context of a just war against a determined and brutal regime bent on mass
genocide, a pacifist position may not be right even to one strongly committed to the
injunction `Thou shalt not kill’. True, as a soldier one will almost certainly risk killing not
only evil enemies but also innocent non-combatants and enemy soldiers who have hitherto
lived blameless lives yet felt - possibly for reasons that are themselves far from morally clean
cut, such as fear for their families if they did so, or simply a lack of personal courage - unable
to resist being called up by a tyrannical and cruel regime they had never previously
supported. However, doctrines such as double-effect and proportionality exist to determine
what the moral soldier may do even in a just cause brought about by the sort of special
circumstances required to modify the absolutist position. In this sophisticated picture, it is
still the moral individual who stands behind the soldier and sets constraints on what even a
soldier might do.
22
As a result, the good soldier retains clean hands, or at least the good
person behind the soldier does. Much the same applies to a politician who finds him or
herself having to declare and then conduct a war against an aggressive and oppressive
regime. Developing this line of reasoning leads Walzer to suggest that politicians (or soldiers)
only realise they have dirty hands to the extent they are also good persons.
23
Paradoxically, on
this account, we should only feel happy with the dirty politician who is at bottom clean.
This sophisticated position turns on abstracting to a universal moral code behind any
special circumstances, and to a universal moral individual behind any social role.
24
However,
it is not obvious either abstraction is possible. As Martin Hollis has noted, we encounter
moral dilemmas as social actors within social situations and relationships that are in part
framed by the beliefs we hold about our respective entitlements and obligations and the likely
consequences of our actions and interactions.
25
Thus, what makes the soldier a good soldier is
not that he is also a good man who follows a universal code but that he is a soldier who
follows the moral code of soldiers. That moral code is not simply a universal code modified
10
to take into account the special moral circumstances of being a soldier. This becomes clear
when as a soldier he finds himself caught between roles such as the overlapping duties of
comradeship and friendship. Suppose to help a fallen friend he would have to put at risk other
comrades to whom he had no such tie. His situation here would be like the Captain and the
mother in the earlier example. But what makes this a dilemma is that there is no point beyond
the two roles to which he could retreat to ask what is universally required. It makes no sense
here to ask `what is the duty of the good man to other men?’ – the duties are those of soldier
and friend. Nor is there a place above the conflict where one might seek to adjudicate
between these two roles. The difficulties arise from the duties of the good friend and the good
soldier being different, though not so clear cut that they do not become entangled in that a
comrade is like and can be a friend, with only circumstances perhaps defining what should
take precedence though a moral loss exists whatever the decision. In these situations, neither
the responsibility of Captain or mother, soldier or friend can be shaken off to reveal the
merely human, universal moral issue underlying them both. These roles and the beliefs we
hold about them frame the situation, and there is no situation to address without them.
This position may appear too relativistic, making us creatures of the roles and the
conventions that surround us at a given time and place. In this case, then surely the ‘good
Nazi’ would merely be doing his duty and acting with impunity in following the orders that
sent millions to the gas chambers? I agree certain orders should not be obeyed, but I do not
accept one has to go back to the ‘good’ person and the universal moral code to do so.
Although the contemporary rhetoric of universal human rights might seem to evoke such an
argument to tackle these sorts of situation, the deliberations of international rights courts tend
to be more guarded because matters rarely present themselves in very straightforward terms.
Indeed, as we have seen, no purely human and simple moral context proves available to us.
Take the case of the good German professional soldier who finds himself suddenly employed
11
by the Nazis. It might be argued he could desert and refuse to fight for such an odious regime.
Yet he might equally consider that his duty as a good German soldier lay in seeking to save as
many people from the ‘good Nazi’ as he could. The choice here, though, is not between that
of a good man and that of a good soldier, for either way the moral responsibility of what his
office requires remains. That office as plausibly indicates that he should soldier on as that he
should resign, with the putative moral duties of the good man as such offering no guide at all
as to which choice he should make. Whatever the choice, he cannot wash his hands or keep
them clean. So attempting to ask what the ‘good man’ should do offers no help – it is too
abstracted from the actual situation in which he finds himself – a situation at least partly
shaped by prevailing social beliefs about his role and circumstances. Doing the right thing
here involves doing what is right – or at least morally defensible –given the social relations
and beliefs that create the moral dilemma in the first place – not doing what was right
regardless of this social context or what he simply thought was right.
What makes the politician a morally good politician, therefore, does not rest on his or
her being a good person, or even necessarily a good husband or wife, father or mother, friend
or comrade and so on. At certain points, politicians may need to sacrifice family to career,
drop friends and disappoint supporters to achieve or exercise power, compromise their goals
and principles to gather support or accommodate others, and authorise uses of violence that
would be regarded as wrong in a private individual. They make such decisions not as persons
but as politicians, moved by a political responsibility and logic to secure a public good that
inevitably involves making difficult choices between rival moral claims. These choices may
result from the need to accommodate the conflicting demands of citizens – for example, when
balancing budgets between education, health, transport and so on, or when contemplating
how far to appease a potentially bellicose state, or in order to build a coalition of support
sufficient to push through a favoured policy, sacrificing others in the process, or to form a
12
government. In all these situations, the politician’s political role will require he or she do
certain things that as a private citizen or ordinary party member they either would never be in
a position to do or would rather not do. Yet, even if there is no direct appeal to be made to
universal moral norms of a pre-political nature, the dictates of politics need not be amoral, let
alone downright immoral. A code of political ethics might still exist that the good democratic
politician could draw on, even if that is not the code of the good man. It is to the form such a
code might take that I now turn.
Clean Politics: Can Dirty Politics be Sanitised by Good Public Reasoning?
In recent years, liberal idealists have seen the entrenchment of rights in written constitutions
and judicial review by constitutional courts as suitable mechanisms for keeping politics clean.
Rights enshrine ideal liberal political principles, while courts offer a suitably depoliticised
mechanism for upholding them in an impartial way. Needless to say, numerous versions of
this thesis exist. I concentrate on one of them – John Rawls’s Political Liberalism. Not only
are most of the recent attempts to devise such schemes by liberal theorists post-Rawlsean in
inspiration, but the aspiration of Rawls’s theory to be ‘political not metaphysical’ appears to
dovetail with the conclusion of the last section that suggests any workable theory of political
morality must draw on the resources of politics itself.
Rawls seeks to achieve this result by restricting the application of the theory to the
basic structure of society, excluding comprehensive conceptions of the good, and elaborating
it on the basis of the principles he regards as intrinsic to a democratic public culture.
26
However, despite the putatively political scope and sources of Rawls’s theory, the resulting
account of political justice turns out to be surprisingly apolitical – as do those of other liberal
idealists. For the aim is to constrain politics morally by identifying a core set of political
13
liberties and depoliticising all decision-making that touches on them. Rawls argues the terms
of a just politics need to be given special constitutional status so as ‘to fix, once and for all,
the content of certain political basic rights and duties, and to assign them special priority.’
27
Doing so, he claims, not only ‘takes those guarantees off the political agenda and puts them
beyond the calculus of social interests, thereby establishing clearly and firmly the rules of
political contest’,
28
it also ‘removes from the political agenda the most divisive issues,
serious contention about which must undermine the bases of social cooperation.’
29
The basic political liberties identified by Rawls’s theory supposedly secure the moral
basis for a democratic society – one in which citizens treat each other fairly and equitably
when making collective decisions. As such, they supply the set of legitimate public reasons
that must be respected by politicians and other public servants when pursuing the public good
– especially any requirements they may place upon their fellow citizens to achieve these
public ends. In Rawls’s account, these reasons circumscribe both the perimeters of the public
sphere (they define the ‘scope’ of public reasoning – namely the fundamental principles of
political justice that establish a working democratic system) and the type of arguments we
might muster when seeking to alter it (they provide the ‘content’ of public reasoning). In
arguing that no public policy must be allowed to conflict with these principles, Rawls seeks
to ensure all democratic decisions are consistent with the maintenance and improvement of a
basic democratic political structure that upholds the equal rights of all citizens. On this
account, therefore, decisions that respect the constitution will be clean as to both process and
result.
30
Rawls does not rule out consequentialist or other types of moral reasoning that might
touch on areas other than the basic political liberties. He merely argues that such policies
should be consistent with them. For example, he suggests tax and environmental legislation,
funding for the arts, and – one imagines – many trade and foreign policy decisions, including
14
the conduct of wars – might all be decided on grounds that do not explicitly invoke principles
of basic political justice.
31
However, he contends the conduct of these policies must not
infringe these principles, thereby keeping the political system itself fair and free. Rawls
conceives public reasons as constitutional constraints. Because their judgments must be
entirely couched in terms of constitutional law, constitutional courts provide the exemplars of
such public reasoning and can legitimately strike down legislation they deem infringes the
constitution.
32
Thus, on Rawls account entry into a war and its subsequent prosecution might
be justified in terms other than political justice but if a government thought it entailed
policies that restricted basic political liberties, like Official Secrets Legislation, then such
measures would need to be justified in terms of the fundamental political principles
themselves and made consistent with them.
As was noted above, the difficulty with this position is that such public reasons cannot
define the political sphere because they are at issue within politics. Rawls acknowledged that
what he called the ‘burdens of judgement’ – factors similar to those we have associated with
the ‘circumstances of politics’ – make ‘reasonable disagreements’ likely about which policies
are in the public good.
33
However, he thought a consensus possible on the nature of the
‘right’, at least for politics. The difficulty is that most policy debates about the good involve
parallel and equally reasonable disagreements about the right – the two are intertwined.
Meanwhile, these differences about the good and the right will impact in their turn on how
the political sphere gets defined. So debates between free marketers and social democrats
over how far and when the state should intervene in economic affairs not only involve
different views of which policies are best for promoting economic growth or different notions
of the economic good but also different views about the right and what treating people
equally involves – for example, whether it requires merely that the rules are the same and
respect peoples choices or necessitates a less formal and more substantive equalising of
15
positions. The same has proven true of feminists challenging certain notions of privacy or
religious or other groups seeking recognition of their cultural differences. In each case, a
given conception of political justice does not frame but is at issue in the political debate.
Two problems pertinent to the present argument follow from this situation. First, to
constrain political debate by constitutionalising a given view of the limits of political
permissibility may itself encourage hypocrisy on the part of political actors. The
entrenchment of a Bill of Rights that are subject to protection by a constitutional court does
not overcome political disagreement. Be it substantive issues such as abortion and affirmative
action, or procedural ones such as campaign finance and proportional representation, political
debate merely moves to the judicial sphere, be it through political pressures of various kinds
on the relevant courts or within the judicial decision-making process itself. Yet, instead of
the full range of public reasons motivating a given issue being considered, the focus will be
on how far it meets a supposed canonical reading of a given constitutional norm, thereby
foreclosing proper debate. Think of how debates about the death penalty in the USA have
become focussed on whether it is ‘cruel and unusual’, or the way discussion of public health
warnings on tobacco in Canada became centred on whether they infringed freedom of
speech.
34
In this way, insistence on the best sort of public reason becomes the enemy of the
public good. Instead of seeking an accommodation between the many public reasons and
their various weights that standardly define a measure as one the public will recognise as
being in its interest, energy is diverted into making a policy appear to be in accordance or not
with a single kind of trumping public reason that may be marginal in the balance of reasons
that recommend the policy in the first place. Cleaning up politics in this way just shifts the
dirt into the judicial arena and risks injecting an obfuscatory moral rhetoric of ‘fundamental’
rights into democratic political debate that may divert attention from values and concerns that
16
are more central to the issue at hand and might even be more politically tractable because
more amenable to compromise.
35
It has been suggested that some issues, such as abortion in the United States, are so
divisive that it would be less disruptive to have them decided by judges, or that other issues,
such as electoral boundaries, involve perverse incentives for politicians that judges do not
share. However, the degree to which judicial decision-making does indeed prove more
impartial than political decision-making on these matters will be largely an empirical matter,
and itself partly dependent on the view point of the investigator as to what the ‘best’ outcome
would be. Nevertheless, the claim that is often made in such cases that judges decide via a
depoliticised and somehow pure reading of ‘the law’ can be regarded as itself a form of
political deceit. It serves as a Platonic ‘noble lie’ – potentially useful, but itself a part of dirty
politics. After all, judges differ in their forms of legal reasoning as much as citizens and
politicians differ in their political reasoning. They may be originalists, textualists, natural
lawyers, positivists and so on, while demonstrating a similar range of moral and ideological
opinion as is found in the public at large. Indeed, multimember courts are for this reason
often forced to compromise in a not dissimilar way to politicians and to reach decisions
through ‘incompletely theorised agreements’.
36
The ways judicial decision-making either renders politics murkier or mirrors its
murkiness relates to the second problem: the need in various circumstances for public reasons
to be massaged or hidden – in part or totally - for the public interest. Massaging becomes
necessary if, as tends to be the case in many political disputes, there are a number of
reasonable views as to the weighting and applicability of different types of moral
consideration and of how these relate to the available empirical evidence, each of which can
lay claim to a certain legitimacy, so that the integrity of the politician lies in seeking to
reconcile these competing claims. Seen starkly from each of these positions, that may make
17
him or her seem to have no integrity at all. Yet, this circumstance seems a consequence of a
pluralist society in which we attempt to treat all positions with equal concern and respect. For
example, Aneurin Bevan burdened the National Health Service (NHS) with the goal ‘to
universalise the best’ However, that oft-repeated aspiration is a contradiction in terms.
Governments cannot avoid experimenting with various ways whereby they can give different
groups of people some of what they want and arrange trade-offs between various sorts of
health care. None of these policies can be regarded as a `universal best’ and so are open to
never ending criticism no matter how much funding is poured into the service. Still, many
such policies may claim to be reasonable attempts to achieve the public good. Unfortunately,
though, expectations of the NHS make the realistic policy of ‘a good enough’ health service
less politically defensible than the impossibly idealistic ‘universal best’ to which politicians
are forced to commit. The only way to overcome this dilemma is to promise all groups that
their needs will be met while finding surreptitious ways for meeting some more than others.
Such massaging points to a more general problem that prevents politicians ever being
entirely candid. The reasonable differences people have about the different normative and
empirical reasons behind any policy mean that there will be a built in tension between
politicians and their supporters. As with judicial majorities on a multimember court, the
coalition of voters backing a given party will support it for reasons that the politicians must
keep deliberately ‘incompletely theorised’. No politician can fully articulate his or her
reasons for a course of action for fear of alienating those with whom they disagree in respect
of the full reasoning. The use of non-public rhetoric that worried Rawls is not just to
reinforce public reasoning by appealing to deeper convictions, as he conceded might be
necessary,
37
but also partly because there are no genuinely public reasons to which appeal
might be made. A degree of smoke and mirrors is often necessary even when presenting
18
policies that a majority support because citizens value them not for the same reasons but for a
variety of different and possibly inconsistent reasons.
In some cases, the public interest may actually require a certain economy with the
truth, or for the truth to be hidden altogether. It is often claimed that credible commitments
require that diplomatic negotiations be carried out in public. ‘Open covenants of peace,
openly arrived at’ offer the only secure road to peace. Yet, such openness may make it hard
for politicians to make the concessions that are necessary to an agreement without losing face
before their domestic audiences. Thus, Henry Kissinger and President Nixon chose to avoid
the confrontational approach that marked the 1962 Cuban missile crisis when seeking to
resolve the Cienfegos Submarine Base Crisis eight years later by using secret diplomacy
precisely to avoid a similar escalation by ‘giving the USSR an opportunity to withdraw
without humiliation.’
38
Likewise, the British government consistently denied negotiating with
the IRA throughout the troubles so as not to offend Protestant opinion in Northern Ireland,
while actually doing so in order to bring an end to violence and promote the peace process.
As Prime Minister, John Major reportedly informed MPs the idea of talking to the terrorists
'would turn my stomach' while doing just that.
39
In this case, most people would regard the
lie as justified. Yet, that justification is largely ex post facto and in defiance of a public reason
that would hold a government to a rigid policy of openness and publicity.
None of this is to suggest that many good policies cannot be successfully prosecuted
openly and in accordance with prevailing views of constitutional essentials, or that bad
policies have been pursued covertly to avoid being rightly blocked for infringing such norms.
But within much normal politics the public good can be subverted by either seeking the best
as defined by one criterion of a public reason, or insisting all reasons be public. Compromise
between plural demands and white or dark lies may all require political reasoning be less than
public and make equivocation and deceit a virtue.
19
Clean Gloves: Real Politics and Liberal Ideals
Do the failures of liberal idealism to get to grips with the ethical dilemmas of real politics
mean there are no valid moral constraints on politics – that anything goes, as realists are
sometimes portrayed as affirming? The Machiavellian political realism I wish to defend does
not go that far. Machiavelli famously argued that politicians must ‘learn how not to be good’,
but went on ‘and to know when it is and when it is not necessary to use this knowledge.’
40
The reason rulers cannot always display all the good qualities of a virtuous person are
because ‘we do not live in an ideal world.’
41
As I noted in the first section, private and public
virtue often fail to coincide, with certain ways of behaving that `seem virtuous’ leading to
political ruin, and others that ‘are supposed to be wicked’ producing political success.
42
Machiavelli observes how this dilemma arises because Princes must engage with a world in
which there are wolves and traps, and so must be willing to act as lions and employ force to
overcome the one and be as cunning as foxes to avoid the second.
43
Here, then, we have the
two aspects of real politics that liberal idealists tend to ignore – the uses of violence, on the
one hand, and the need for dissimulation, on the other. Yet, throughout his analysis
Machiavelli (and following him, Weber) offers two politically motivated reasons for restraint.
The first is a loose notion of proportionality – that princes should be ‘bad’ to the extent
necessary to deal with wolves and traps and no further.
44
The second is the importance of
appearing all the while to be good. In each case the need for such limits is the same: politics
may employ force and guile but neither can substitute for some degree of willing consent on
the part of the ruled – a requirement that is all the more important in a democracy. Thus, a
democratic Prince may have dirty hands, but must wear clean gloves.
20
One can reframe this point in the terms we have employed in the preceding analysis.
Both the need for force and guile and their limits flow from the difference between the
private and public spheres, and the peculiar ‘circumstances of politics’ that structure the latter
and call for a distinctively political response. Because public policies involve collective
action in the face of disagreement as to who should cooperate, how, when, to do what and
where, some mix of coercion and persuasion to bring us into line becomes unavoidable. Yet,
since you can neither compel nor fool all the people all the time, a degree of trust that one is a
good politician - if not necessarily a good person - becomes necessary. An appeal to liberal
idealism may offer the real politician these necessary trappings of legitimacy. However, as we
have seen, politicians cannot really hold to these ideals consistently. It is merely politically
helpful that people believe they do their best to do so.
To put some flesh on this argument, let us explore each of the Machiavellian
constraints in turn with regard to the use of violence and dissimulation respectively. The
prime Machiavellian lesson concerns the need to remove all political rivals and their armed
supporters from the scene, often with the use of extreme force. That offers a timely reminder
of how necessary the ‘monopoly of violence’ is for regular government and how difficult it
has been to achieve.
45
Even if the elected politicians of established democracies inherit this
position, and so are spared the Machiavellian blood bath, liberal idealists are apt to forget that
behind the law lies coercion, so that every political decision necessarily implies the use and,
in foreign affairs especially, the protection of the monopoly of force. Citizens will only value
the law if it has de facto as well as de jure authority, and the state has the ability to enforce it.
As the problems besetting weak states reveal, the de facto authority of a brutal regime
can have a value in itself even in the absence of any de jure legitimacy of either a formal or
substantive kind – think of the problems besetting Iraq following the removal of Saddam
Hussein. Yet, if the establishment of a monopoly of violence requires brutal measures, there
21
is a difference between ‘cruelty well used and cruelty abused’.
46
A prince who is simply cruel
not only lacks ‘glory’ but also is unlikely to remain in power. Force alone will never allow for
stable rule, and Machiavelli `would criticise anyone who, relying on his fortresses, thought it
unimportant that his people hated him.’
47
Certain ends may justify quite ruthless means, but
that does not involve any failure to acknowledge the moral price of those means. As he notes,
‘while the act accuses, the result excuses’ – the deontological accusation remains
notwithstanding the consequentialist justification.
48
Therefore, a prince avoids abusing cruelty
by staying aware of its cost in terms of both lost popularity and reputation, and the damage to
different moral values that it entails. Yet, neither can ever be clearly and unambiguously
measured. Governing is an art not a science, and success as a ‘good’ politician requires not
only virtú but also fortuna.
It might be thought that if force is used only to the extent necessary to overcome
‘wolves’, then many of the dilemmas of ‘dirty hands’ disappear. We ought to be able to
handle them within the constraints of liberal democratic values, prosecuting evil doers via a
due process. Sadly, matters are not so easy. For a start, wolves also lay traps and may need to
be dealt with in cunning ways. Legitimate force often rests on covert violence, and all liberal
democratic governments employ professional foxes to do their dirty work. Moreover, citizens
know they do, and that there are limits to how far secret services could operate publically
without destroying their point. So we tolerate wire tapping of terrorists and spying on
unfriendly powers, but prefer not to be told. To a degree, we share the dirt with politicians.
Nevertheless, political legitimacy, measured by the tolerance of citizens for the government’s
dirty tricks, depends on both parties keeping faith with ideal liberal democratic forms and
norms even while selectively disregarding them. If experience shows politicians to have acted
disproportionally or failed, that hypocrisy allows citizens to desert them and claim the moral
high ground. So politicians have good reason to be cautious. But, to repeat, such caution can
22
never be an exact science – many politicians will find the road to hell is paved with good
intentions. After all, as Machiavelli remarks – many have tempered their initial cruelty only
to find they need to be all the crueller as a result.
49
Meanwhile, the use of force and guile extends beyond the spilling of blood, and
citizens may also be wolves to a degree. If a motorway is built through a site of natural
beauty or slum housing cleared, then violence is done to certain values and the lives and
livelihoods of particular people. The princely claim – hypocritical or sincerely believed – will
be that it was done for the public good. To avoid costly protests and planning blight, the
decision may even be made in secret, with the bulldozers moving in overnight. After all,
many citizens will act wolfishly and with cunning to thwart such plans. Even in a mature
liberal democracy, much politics happens at its borders – not least as a way of trying to
extend its constitutional boundaries. Like Princes, these citizens will likewise only know if
they have judged the degree of force correctly if history proves them justified. They too will
need their share of virtú and fortuna.
Finally, guile and the threat – if not necessarily the use – of force prove ever
necessary because politics remains a messy business in which politicians must reconcile the
claims of conflicting groups. What binds these together is not a common adherence to public
norms of reason, which above I doubted possible, but ambiguity and a certain economy with
the truth. The plurality of concerns and values involved in any collective decision means that
politics involves compromise. According to the groups involved and the issue being decided,
a mutual accommodation between sufficient people to get a working majority for a given
outcome may require that those involved trim their demands, split the difference, arrange a
trade-off, or go for a shared second-best.
50
In each of these scenarios their preferred best
option gets sacrificed to the common good. Arranging such agreements may often depend on
the reconciliation of incompatible demands through a sleight of hand whereby each party
23
believes they are getting more than they actually are. For example, Michael Freeden has
plausibly argued that the British post-war political consensus of the 1950s surrounding a
welfare state and a mixed economy largely depended on Labour and Conservative supporters
and politicians emphasising different elements of the package and giving it divergent and
logically contradictory readings.
51
The stability of this settlement largely depended on not
making these differences too obvious.
Thus, democratic Princes no less than the Machiavellian prince must appear
compassionate, generous, reliable, morally upright and honest, yet be prepared to be
treacherous, break their promises and use their resources selectively. The key is that nobody
must know – or want to know.
52
Appearance and outcome are all that count. The main
achievement of liberal democracy lies in offering mechanisms for deposing Princes and
selecting between their rivals for power that avoid the resort to violence. But in their
campaigns to get elected, democratic Princes employ all the dark political arts – and in so
doing prove their worthiness to rule.
53
That does not mean that limits do not exist as to how
foxy and leonine the Prince can be. But no public standards of cleanliness exist than those
upheld by the public themselves. As Machiavelli notes, even for non-democratic Princes
‘when it comes down to it only the masses count.’
54
In this respect, the virtue of liberal
democracy rests less in its being imbued by liberal idealism and more in its institutionalising
a degree of political realism that gives some rough equality through equal votes to how each
member of the masses counts, and along the way the incentive of politicians to attempt to be
cleaner than they ever can be.
Conclusion
A study of the dirtiness of politics cannot end cleanly. There are no clean political decisions.
Wolves and traps abound, not only because some people are wicked but also because most
24
public issues are complicated and contested. They can only be resolved through force and
persuasion. Thus, the role of a politician does not afford them the luxury of being good in a
manner appropriate to many private roles. The good politician must do things even the good
citizen would not. Likewise, a liberal idealism built on our duties as persons, beyond any
role, proves a chimera. Nor can we clean up politics with a sui generis political morality
based on distinctively public as opposed to private reasons. Our public reasons differ and not
all can be accommodated, while wolves lurk and traps abound to ensnare the good politician
as he or she attempts to uphold the common welfare. So politicians must act as foxes and
keep certain things hidden. They must appear to be good, but know how not to be. Liberal
idealism offers a clean glove of legitimacy, but not a clear guide to what is right and good.
Unjust settlements can also gain a spurious justification when liberal norms of equality get
applied to unequal circumstances. Yet, keeping some faith with liberal democratic ideals
reminds politicians of the need to act proportionally and with popular support. Appearing to
be good offers an incentive to attempting to be so. However, no public measure exists to mark
where they overstep the line beyond their ability to convince the public they have succeeded.
In a democracy, citizens share in the dirt of their politicians but – hypocritically perhaps –
also offer the only means to keep it as clean as their good – the good of the public – can ever
allow it to be.
25
1
I’m grateful to my colleagues Cecile Laborde and especially Albert Weale for their very helpful
comments on earlier versions. Stimulating discussions of the papers ideas were also provided by
Darrow Schecter and the participants of the Sussex Centre for Social and Political Thought seminar,
David Miller and the members of the Nuffield Political Theory Workshop , and Bernard Reber, Kate
Nash and Emmanuel Picavet among others at a presentation in the seminar series `Analyse des Normes
Contemporaines’ at CERSES, Université Paris Descartes.
M Walzer (1972) ‘Political Action: The Problem of Dirty Hands’, Philosophy and Public Affairs 1:
162
2
A. Smith ([1776] 1981) An Inquiry Into the Nature and Causes of the Wealth of Nations,
Indianapolis: Liberty Fund, Vol. I ed. R. H. Campbell and A. S. Skinner, Book I, chap. 2, para. 2
3
See S. Hampshire, ‘Public and Private Morality’, in S. Hampshire (ed) (1978), Public and Private
Morality, Cambridge: Cambridge University Press, p. 49 for a useful summary.
4
See T. Nagel, Ruthlessness in Public Life’, in Hampshire (ed), Public and Private Morality, pp. 75-91
for one such attempt, explored in section 1, and J. Rawls, Political Liberalism, New York: Columbia
University Press, 1993, for another, explored in section 2.
5
E.g. J Quong (2004) 'The Scope of Public Reason.' Political Studie
s
, 52: 233-250
6
E.g. J. Rawls (1993), Political Liberalism, New York: Columbia University Press, p. 214
7
J. Waldron (1999) Law and Disagreement, Oxford: Oxford University Press, pp. 107-18; A. Weale
(1999), Democracy, Basingstoke: Macmillan, pp. 8-13.
8
That certain dilemmas of democratic Princes stem from their obligations to the electorate is noted by
both B. Williams, ‘Politics and Moral Character in Hampshire (ed), Public and Private Morality, pp.
60-70 and M Hollis (1982), 'Dirty Hands', British Journal of Political Science 12: 396-7, two classic
essays that inspire more generally much of the present article.
9
A move in this direction appears to lie behind the nuanced case for a limited moral absolutism in T.
Nagel, ‘War and Massacre’, reproduced in T. Nagel (1979) Moral Questions, Cambridge: Cambridge
University Press, Ch. 5.
10
E.g. Rawls, Political Liberalism, p. 161.
11
N. Machiavelli ([1513/32] 1995) The Prince, ed. and trans. D. Wootton, Indianapolis: Hackett and
M. Weber ([1919] 1994), ‘The Profession and Vocation of Politics’ in Political Writings, ed. P. Lassman
and D. Speirs, Cambridge: Cambridge University Press, pp. 309-69.
12
J. Elster (ed) (1998), Deliberative Democracy, Cambridge: Cambridge University Press, pp. 12, 111.
13
I take this metaphor from Hollis’s pithy summary of Machiavelli’s views in The Prince as ‘He
should get his hands dirty and wear clean gloves’ in Hollis (1982), 'Dirty Hands', p. 389.
14
See , for example, the similarities and contrasts between Machiavelli, The Prince, pp. 48-9 and
Hampshire, ‘Public and Private Morality’, pp. 49-50 and Nagel, ‘Ruthlessness’, pp. 89-91.
15
On the distinction between the `non-derivability’ of public from private morality and their
`independence’ from each other, see Nagel, ‘Ruthlessness’, pp. 78-9, who notes (and appears to hold)
that ‘both may derive from a common source that yields different results when applied to the
generation of principles for action in the widely differing circumstances of private and public life’. The
argument of this section is that they are both non-derivable and independent from each other.
16
Hollis, 'Dirty Hands': 390.
17
Hollis, 'Dirty Hands',: 393, S. Mendus (2010), Politics and Morality, Cambridge: Polity Press, pp.
33-34, 43.
18
Mendus, Politics and Morality, pp. 29-30. See too Weber, ‘The Profession and Vocation of Politics’,
pp. 357-69.
19
Hollis, ‘Dirty Hands’: 390.
20
Nagel, `War and Massacre’, p. 63.
21
Nagel, `War and Massacre’, pp. 64-73. Kant likewise allows for the ‘moral politician … who
conceives of the principles of political expediency in such a way that they can co-exist with morality’.
I. Kant (1970), ‘On the Disagreement Between Morals and Politics in Relation to Perpetual Peace’, in
Kant’s Political Writings, ed. H Reiss, Cambridge: Cambridge University Press, p. 118.
22
Nagel in `War and Massacre’, which I take as an exemplary case of this sophisticated account,
appears to base his reasoning on what in ‘Ruthlessness’ he refers to as the ‘common source’ of morality
– namely, what we owe as moral individuals to other persons as such.
23
Walzer, ‘Political Action’: 168.
24
This is clearly the case in Kant, ‘On the Disagreement Between Morals and Politics’, p. 117.
25
Hollis, ‘Dirty Hands’: 393-95.
26
Rawls Political Liberalism, p. 223.
27
Rawls, Political Liberalism, p. 161.
28
Rawls, Political Liberalism, p. 161.
29
Rawls, Political Liberalism, p. 157.
30
Rawls, Political Liberalism, pp. 213, 223-27.
31
Rawls, Political Liberalism, p. 214
32
Rawls, Political Liberalism, pp. 215-6, 231-40.
33
Rawls, Political Liberalism, pp. 55-57
34
RJR MacDonald Inc. v Canada, [1995] 3 S. C. R. 199.
35
I have documented these issues in R. Bellamy (2007) Political Constitutionalism: A Republican
Defence of the Constitutionality of Democracy, Cambridge: Cambridge University Press, especially Ch.
1.
36
See Bellamy, Political Constitutionalism, Ch. 2 and C. R. Sunstein (1996) Legal Reasoning and
Political Conflict, Oxford: Oxford University Press, pp. 48-50.
37
Rawls, Political Liberalism, p. 251.
38
Quoted in Shuhei Kurizaki (2007) `Efficient Secrecy: Public Versus Private Threats in Crisis
Diplomacy’. American Political Science Review,101: p. 543.
39
See C Brown and D McKittrick, `The Secret IRA Meetings: IRA leak puts Major on rack’, The
Independent, 29/11/1993, accessed at http://www.independent.co.uk/news/the-secret-ira-meetings-ira-
leak-puts-major-on-rack-mi6-blamed-for-unauthorised-contacts--mayhew-to-publish-more-documents-
1507407.html
40
Machiavelli, The Prince, p. 48.
41
Machiavelli, The Prince, p. 48.
42
Machiavelli, The Prince, p. 49.
43
Machiavelli, The Prince, p. 54.
44
For proportionality as a restraint in both Machiavelli and Weber see M. Philp (2007), Political
Conduct: Cambridge MA: Harvard University Press, Ch. 4.
45
Weber, ‘The Profession and Vocation of Politics’, pp. 310-11.
46
Machiavelli, The Prince, p. 30
47
Machiavelli, The Prince, p. 67
48
N. Machiavelli ([1513-17] 1960) Discorsi sopra la prima deca di Tito Livio in Il Principe e Discorsi
ed S Bertelli, Milan: Feltrinelli, Bk 1 Ch IX, p. 153
49
Machiavelli, The Prince, pp. 30-31.
50
I discuss the different types of compromise and their relationship to the circumstances and groups
involved in R. Bellamy (1999), Liberalism and Pluralism: Towards a Politics of Compromise, London:
Routledge, especially Ch. 4.
51
Michael Freeden (2005) ‘What Should the “Political” in Political Theory Explore?’, Journal of
Political Philosophy, 13: 123.
52
Machiavelli, The Prince, pp. 54-55.
53
Once again the classic account of this key feature of modern politics, whereby the Prince became a
Democratic Prince, is Weber, ‘The Profession and Vocation of Politics’.
54
Machiavelli, The Prince, p. 55.
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It is sometimes suggested that even democratic politicians need to dirty their hands in ways that render hypocrisy, lying and deception unavoidable and even justified. By contrast, we draw on John Rawls’ Political Liberalism to argue that the ‘reasonable disagreements’ occasioned by the ‘fact of pluralism’ that make democratic politics necessary can only be resolved in ways congruent with democratic norms if politicians are truthful in Bernard Williams’ sense, and adhere to the related virtues of ‘sincerity’ and ‘accuracy’. Supplementing Eric Beerbohm’s ‘relational model’ of campaign ethics with Suzanne Dovi’s account of the ‘good representative’, we argue that these both entail the virtues of truthfulness. We contend the contemporary crisis of representation associated with the rise of technocracy and populism can be linked to the ways both undermine these virtues through their common rejection of pluralism and the related need for truthfulness. Consequently, both involve deformations of ‘good’ democratic representation.
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Focusing on ‘real actions’ of ‘real people’, normative behaviourism turns facts about observable patterns of behaviour into grounds for specific normative political principles. For this reason, this way of doing normative political theory has strong political realist credentials, given its methods, values and ambitions. In fact, according to its supporters, normative behaviourism is an improvement of political realism since it solves two problems that allegedly face many realists, namely, the ‘legitimacy problem’, i.e., how we should distinguish genuine acceptance of a political system from false acceptance, and ‘the institutional problem’, i.e., how we should translate political principles into viable political institutions. In this paper, we make two claims. First, normative behaviourism does not solve the legitimacy problem encountered by realists, because its solution rests on a flawed distinction between foundational principles and ‘principles that matter’, together with a problematic use of a Humean internal reasons approach. Second, normative behaviourism does not solve the institutional problem encountered by realists, because its solution is in fact much more unfeasible than realist prescriptions, since feasibility is interpreted as mere possibility. We wind up our analysis by showing that normative behaviourism encounters new problems that realist approaches typically do not face.
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This chapter introduces the Special Issue and offers an overview of the corpus of work on the topic since the publication of Michael Walzer’s seminal article, ‘Political Action: The Problem of Dirty Hands’.
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The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred--and divided--by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law works in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law mediates disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must by necessity avoid broad, abstract reasoning. Why? For one thing, adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not--indeed, must not--delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as a core principle of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples--a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a bold new vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.
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February 13th, 1692, is still remembered in the Western Highlands of Scotland. At 5 a.m. a blizzard was raging down the valley of Glencoe but there were soldiers about. They were two companies of the Argylls under Captain Robert Campbell of Glenlyon, peaceably billetted on the MacDonalds of Glencoe for the past two weeks. The MacDonalds, who had newly sworn allegiance to King William of Orange, had treated them well. Sacred bonds of hospitality had been forged – a reassuring sign that enmities were fading between MacDonalds and Campbells and between Highland supporters of the Stuarts and the new Edinburgh government of 1688. But that was illusion. Captain Campbell had received secret instructions the previous day. ‘Sir, You are hereby ordered to fall upon the rebels, the MacDonalds of Glencoe, and to put all to the sword under seventy… This you are to put in execution at five of the clock precisely… This is by the King's special command, for the good and safety of the country, that these miscreants be cut off root and branch…’ At five of the clock precisely the Argylls turned on their hosts. Almost forty MacDonalds were killed on the spot and many more, who scrambled away up the bleak walls of the glen, died of exposure in the blizzard. Crofts were burnt, cattle and goods carried off. That was the infamous Massacre of Glencoe. I shall start from here and gradually follow the moral questions which arise into the arena of politics at large.