‡ Thanks for helpful comments and criticism are due to Elizabeth Anderson, Robert Brenner, David Finkel, Milton Fisk, Richard Garner, Allan Gibbard, Don Hubin, Peter King, Todd Lekan, Joan McGregor, Ulf Nilsson, Calvin Normore, Rodney Peffer, Peter Railton, Tony Smith, Mark Van Hook, and Chris Yonashonis, as well as to several anonymous referees. Hannah Michael-Schwartz, then age three, suggested by example the crucial argument for the strong progress claim. This paper is descended from Justin Schwartz ‘Revolution and Justice’, 44 Against the Current 37 (1993) and related ideas are developed in ‘Rawls and Relativism’, unpublished manuscript, and ‘Which Side Am On? Relativism, Motivation, and Justice’, unpublished manuscript.

1 Jeffrie, G Murphy & Jules, L coleman, Philosophy of Law 51 (rev ed 1990)Google Scholar. Murphy wrote the chapter from which I quote.

2 Roberto Unger, in his earlier works, advocated a strong version of this claim. See Unger, Roberto Knowledge and Politics (1975) pp 83–84 Google Scholar and Law in Modern Society (1976) p 180. other variethies of the CLS non-neutrality thesis can be found in, eg, Peller, Gary ‘the Metaphysics of American Law’, 73 Cal L Rev 1167 (1985)Google Scholar, Boyle, James ‘the Politics of Reason’, 133 U Penn L Rev 133 (1985)Google Scholar, both reprinted in critical Legal Studies (J Boyle, ed 1994), see also the papers in Critical Legal Studies (A Hutchinson, Kelman A Guide To Critical Legal Studies (1987) ch 9. A hostile but conscientious survey of CLS attacks on the very idea of neutral principles is Andrew Altman Crittical Legal Studies (1990).

3 Murphy & Coleman, above n 2, at 52, 55.

4 Whether the ‘Rawlsian’ view I criticize is indeed Rawls' need not concern us, since my purpose is not the interpretation of his philosophy but the tenability of an initially attractive solution, one widely attributed to Rawls. But his early view is often read as involving commitments to the abstraction I wish to attack. It is so interpreted by Brian Barry The Liberal Theory of Justice (1973); the commentators in Reading Rawls (N Daniels, ed 1975) Michael Walzer Spheres of Justice (1983); Robert Paul Wolff Understanding Rawls (1977); and Michael Sandel L iberalism and the Limits of Justice (1979). Rawls' own later refinements suggest that his present view is closer to ‘the weak case’ discussed in section 4. 6. See Political Liberalism (1993) as well as ‘Justice as Fairness: Political Not Metaphysical’, 14 Phil and Public Affairs 223 (1985) and ‘The Idea of an Overlapping Consensus’, 7 OXford J Legal Afluirs 1 (1987). These changes or clarifications were made partly in response to criticisms of the general sort bruited here. I take no position on the interpretative question, but I suspect that Rawls' early view, in A Theory of Justice (1971), contained, somewhat unstably, tendencies towards both positions.

5 Rawls' point of departure is the neopragmatism in philosophy of science of his Harvard colleagues W V O Quine and Nelson Goodman. Quine's core insight, for my purposes, is his doctrine that’ [a]ny statement can be held true come what may, if we make drastic enough adjustments elsewhere in the system [of beliefs]…. Conversely, by the same token, no statement is immune from revision.' Quine, W V O ‘Two Dogmas of Empiricism’, in From A Logical Point of View (rev ed 1961) p 43.Google Scholar For a more extended discussion, see Quine, W V O & Ullian, J S The Web of Belief (2nd edn, 1978)Google Scholar. See also Goodman, Nelson Fact, Fiction, and Forecast (4th edn, 1983) p 64.Google Scholar

6 John, Rawls A. Theory of Justice (1971) p 21.Google Scholar

7 The qualification that reflective equilibrium be ‘wide’ is urged by Norman Daniels ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’, 74 J Phil 256 (1979) and ‘Two Approaches To Theory Acceptance in Ethics’, in Morality, Reason, and Truth (D Copp & D Zimmerman, eds 1985). It indicates that we must take into account not only our considered moral judgments, the principles that systematize them, and the methodological principles that govern their revision, but also a set of relevant background theories, both moral and nonmoral, as well as interests (see section 3. 1). This is clearly Rawls' own intention, as reflected, for example, in his use of economics and psychology in developing his theory of justice. I drop the term ‘wide’ as redundant, on the presumption that all reflective equilibrium is wide. A useful discussion of wide reflective equilibrium in a specifically legal context is provided by Hurley, Susan Nutural Reusons (1989) pp 203–224.Google Scholar

8 Rawls, above n 6, seems equivocal or ambivalent between these two views. He leans towards the second in ‘Kantian Constructivism in Moral Theory’, 77 J Phil 515 (1980), but in Political Liberalism (1993), he argues for a principled agnosticism on this issue. I think, but will not argue here, that if reflective equilibrium is a matter of coherence of beliefs, then coherence in reflective equilibrium is only grounds for belief that a conception of justice is correct and not constitutive of its correctness, which depends crucially, in my view, on whether it embodies a ‘genuine reconciliation of interests.’ Rawls, above n 6, at 141–42. Such a reconciliation depends on the nature of the interests involved and not merely on beliefs. On the other hand, if, as suggested in section 3. 1, reflective equilibrium encompasses interests as well, then a constitutive view is defensible.

9 Rawls, above n 6 at 20.

10 Kagan, Shelly The Limits of Morality (1989) pp 11–15.Google Scholar

11 Rawls, above n 6 at 20. Reflective equilibrium as a method in ethics, as I understand Rawls, Daniels, and other expositors, does not require that in the equilibrium that emerges at the end we give weight to or find a place for all the moral judgments that we start with, since it allows, and indeed demands, revision in both judgments and principles to get as good as possible a ‘fit’. Some initial judgments may be discarded on reflection as failing to cohere with others or with the best explanation we have of the ones we wish to keep. This allows us to exclude certain prejudices, even if strongly held, as having no claim to being maintained, eg, homophobic or racist bigotry. However, since by the Quinean principle which allows such revision, any judgment may also be maintained come what may, there is no guarantee that such views may not find a home as considered moral judgments in some reflective equilibrium.

12 Ibid at 50.

13 Perhaps about all morality, as maintained by R M Hare Moral Thinking (1981) pp 12–13, but I here restrict my discussion to justice. Someone may worry that we do not have a problem about relativism at all if, on one reading suggested above, n 8, we take reflective equilibrium to be only evidence for, and not constitutive of, the correctness of a conception of justice. For surely in science as well as ethics rational people can disagree, and even be equally justified in their conflicting views, without fear of relativism! Such merely epistemic relativity ought not be problematic.

But, first, while I agree that such disagreement does not commit us to relativism, this is not obvious in science or ethics. Relativist worries give the concern about the underdetermination of scientific theory by empirical evidence part of its bite. See Thomas Kuhn The Structure of Scientific Revolutions (2d edn, 1970) or Quine, W V O ‘On Empirically Equivalent Systems of the World’, 9 Erkenntnis (1975) p 313.CrossRefGoogle Scholar Divergence about justice in reflective equilibrium is an ethical version of this worry. That such disagreement does not imply relativism must be shown, and with regard to justice, this is my object here. In Schwartz, Justin ‘The Paradox of Ideology’, 23 Canadian J Phil 541 (1993)CrossRefGoogle Scholar [hereinafter Schwartz ‘The Paradox of Ideology’] I argue similarly for science.

Second, the worry about epistemic relativity is nontrivial. It may be reformulated as a problem about skepticism. Disagreement does not imply there is no unique right answer, nor does agreement imply that we have a correct answer. See Schwartz, Justin ‘Revolution and Justice’, 44 Against the Current 37 (1993)Google Scholar [hereinafter Schwartz ‘Revolution and Justice’]. But if we have no agreement in reflective equilibrium, how can we be justified in maintaining that we have such an answer? The question is not rhetorical. I do not maintain that we can only be thus justified if we have such agreement. My point is that we can even if we do not. But again, this must be shown.

14 Rawls, above n 6, at 50.

15 Ibid at 45, emphasis added.

16 Dworkin, Ronald ‘Justice and Rights’ in Taking Rights Seriously (1978) p 151.Google ScholarPubMed

17 Rawls, above n 6, at 21, emphasis added.

18 Ibid at 139.

19 Ibid at 137.

20 Ibid.

21 Ibid at 62, 93.

22 Ibid at 141–42.

23 Ibid at 138.

24 Rawls, Political Liberalism (1993) p 134.Google Scholar

25 Rawls, above n 6, at 125–126.

26 See also section 4. 1(ii), below, where I argue that a social order that fails to satisfy the realizability condition cannot be just.

27 See Hart, H L A Punishment and Responsibility (1968) pp 28–53.Google Scholar

28 The inability or unwillingness of a few individuals-eg, habitual criminals–to cooperate does not render a social arrangement sociologically impossible as long as their behavior does not destabilize the social order. Only when noncooperation is general enough to undermine the social order should we speak of sociological impossibility. Hence the parenthetical ‘most’ in (1).

29 Richard Miller ‘Rawls and Marxism’, in Reading Rawls above n 4, at 206, makes a similar claim, but he argues that the parties to the original position will be unable to accept Rawlsian justice given the possibility that they may end up on the privileged side of a divided society. I do not dispute, however, that in the original position the parties may accept Rawlsian justice. I merely deny that they can abide by it outside that position and in a divided society. If that means they could not accept it in the original position either, I agree with Miller, but 1 take no stand on the question here.

30 See Kagan, above n 10.

31 Paul H Robinson Criminal Law Defenses (1984 & Supp 1996) s 37 (necessity), s 173 (insanity), s 177 (duress).

32 John D Calamari & Joseph M Perillo The Law of Contructs (3rd edn, 1987) ss 1. 3–1, 13–9, 13–12,13–20, Arthur L Corbin Corbin on Contracts, (one vol ed 1952) ss 1320–1333, see especially s 1325 (‘What is meant by the term ‘impossibility’).

33 W Page Keeton, Dan B Dobbs, Robert Keeton, & David G Owen Prosser and Keeton on the Law of Torts (5th edn, 1984 & Supp 1988) s 68.

34 Further evidence of Rawls’ acceptance of (1) is his invocation of the idea of ‘the strains of commitment’ against utilitarianism and in defense of his two principles. See Rawls, above n 6, at 145, 176ff, 423. According to this notion, adequate principles of justice may not ‘have consequences [the parties to the original position] cannot accept’ in the real world. The parties ‘must weigh whether they will be able to stick by their commitment in all circumstances’. They ‘…will avoid [principles] that they can adhere to only with great difficulty’. Ibid at 176. Rawls claims that utilitarianism will fail this test. My claim is that, in a divided society, so will Rawlsian justice. My point, however, is not about what parties to a hypothetical choice situation would choose but about how people will behave given their actual interests.

35 Ibid. chapter 8; Rawls, above n 24, at 86–88.

36 Rawls, above n 6, at 490–491.

37 Mill, John Stuart Utilitarianism (Warnock, M, ed 1962) p 284.Google Scholar

38 Hume, David Enquiries Concerning the Human Understanding and Concerning the Principles of Morals (2d edn, L A Selby-Bigge, ed 1962) p 229.Google Scholar

39 American slavery never established a legal bar to breaking up slave families by sale. On the contrary, as Jones argues, ‘The threat of sale was the most effective long term mechanism of control’. Jones, Norrece T Jr Born a Child of Freedom, Yet a Slave: Mechanisms of Control and Strategies of Resistance in Antebellum South Carolina (1990) p 63 Google Scholar, see the whole of chapter 2. But masters would keep families together to reward compliance. It took a civil war to force them to give up slavery itself.

40 Given the reality of multiple and overlapping group membershiprace, gender, class, religion, nationality, kin, etc-ascertaining which group identities come into play in any given circumstance is a difficult matter. However, we may avoid the issue here. As long as whatever groups there are can be classified as dominant and subordinate in the specified sense, it does not matter for the purpose of my argument which groups are most salient in particular circumstances.

41 This point also applies to Nozickean justice. The least-well off, those who would be most disadvantaged in the completely laissez-faire economy advocated by Nozick, would strongly resist the abolition of the safety net. See Robert Nozick Anarchy, State, and Utopia (1974). Such resistance helps explain why the safety net exists. Resistance on the other side helps explain why it is as low as it is.

42 If Scandinavian social democracy is adduced as a counterexample, two replies suggest themselves. First, one might deny that the Scandinavian countries are divided societies in the sense or to the degree that, for example, the US might be argued to be. This might be supported by reflection on whether Scandinavian arrangements are, or might reasonably be expected to be, on an American political agenda. To take income inequality, in the US the ratio of the top 20% to the bottom 20% of the population in 1979–1990 is almost 9, compared with Sweden at half that, Norway at slightly over 6 and Denmark at about 7. 25 (World Bank figures). A Glyn & D Miliband ‘Paying For Inequality’ (Institute for Public Policy Research 1994), cited in 198 Dollars and Sense 19 (1995). For a more comprehensive and nuanced picture, see Freeman, J Democracy and Markets (1989) pp 137–148.Google Scholar Neither the World Bank or Freeman take into account monetary value of the more extensive Scandinavian social welfare system, which would undoubtedly widen the gap. The likelihood that the US will move in the direction of Scandinavian standards in the foreseeable future is slight.

Second, one might remark that even in Scandinavia, inequality is increasing. A comparison of the World Bank figures from the 1980s and Freeman's figures from 1970 indicate that Norway and Denmark in particular are markedly more unequal than they were a generation ago. Moreover, the social democratic consensus is under considerable pressure from conservative parties, which are beginning to break the long Social Democratic hegemony in those countries. See Rudolph Meidner Why Did the Swedish Model Fail?', in Real Problems, False Solutions: Socialist Register 1993 (R Miliband & L Panitch, eds 1993) p 211. Whether Scandinavian conservatives will succeed in their aims is open, but if they do, that is evidence that social democracy is not stably realizable in Scandinavia.

43 Rawls, above n 24, at 17. The situations seem to differ in subtle but important ways. I imagine trying to institute Rawlsian justice in a divided society; he, ‘transpos[ing]’ people into a society governed by Rawlsian justice with their current attitudes. My situation emphasizes the obstacles interest poses to a transition to such a society; his, those posed by old-fashioned attitudes in one that exists. In raising this problem, Rawls has assumed a solution to my problem without saying what it is. In addition, in my situation, the better off retain their wealth and the problem is persuading them to surrender that part of it to which they are not entitled on the difference principle. In Rawls' situation, as far as I can make out, transposition somehow deprives them of that share and the problem is to reconcile them to this loss. The question remains open just how this transposition took place with that effect. This matters because those who still have resources are better placed to retain them.

44 Ibid at 18.

45 Rawls, above n 6, at 453.

46 Ibid at 454.

47 Rawls, above n 24, at 134.

48 Rawls, above n 6, at 8.

49 Ibid at 454.

50 This presupposes a claim about ‘the conditions of our life as we know it’, namely that our societies are divided in a way marked by what I call domination (see section 3). But the claim is only moderately contentious. Even someone as convinced of the relative homogeneity and ‘moral consensus’ of our societies as Rorty identifies himself as a moderate reformist who is deeply concerned about ‘the very slow extension of hope and freedom to marginal social groups’. Rorty, Richard Objectiviy, Relativism, and Truth (1991) pp 201, 15–16.Google Scholar Fukayama, who notoriously denies that ‘we cannot picture to ourselves a world that is essentially different from the present one, and at the same time better’, admits that ‘most existing liberal democracies do not measure up’ to their own standards of eradication of eliminable inequalities. Francis Fukayama The End of Hisrory and the Last Man (1992) pp 46,291. Even those who are more sanguine about our present state than Fukayama, Rorty, or myself may take the point to be about the logic of justice in genuinely divided societies like mid-19th century America, my main example in the following.

51 Rawls, above n 24, at 158.

52 Ibid at 144–146.

53 Ibid at 54.

54 Ibid at 168.

55 Insofar as Rawls purports to speak for whatever consensus actually exists in 20th century America, the state of race relations does not offer much encouragement about the idea of building overlapping consensus through respect for democracy. See Andrew Hacker Two Nations: Black and White, Separate, Hostile, and Unequal (1992) and Thomas Byrnes Edsall & Mary D Edsall Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics (1991), or consider the success of California Proposition 187 in 1994, denying undocumented immigrants access to social services. Its implementation has been enjoined by the courts, but the message is clear. The Regents of the University of California have abolished affirmative action in hiring and admissions in the largest university system in the country. Proposition 209, abolishing public affirmative action in California as a whole, named in proper Orwellian fashion, the Californian Civil Rights Initiative, passed in 1996 by a comfortable margin. Race conscious remedies for historical and ongoing racial discrimination, necessary since nominally ‘color-blind’ measures only perpetuate a status quo where whites are dominant, have been ruthlessly scaled back by the Supreme Court. For general discussion see Girardeau A Spann Race Against the Court: The Supreme Court and Minorities in Contemporary America (1993). Particularly notable are decisions limiting race conscious remedies in voting rights, see Shaw v Reno 509 US 630 (1993), government contacting, see Richmond v Croson, 488 US 469 (1989) and Adarand v Pena, 115 S Ct 2097 (1995), and employment contexts, see Wygant w Jackson, 476 US 267 (1986). Affirmative action in university admissions is under threat since the Fifth Circuit Court of Appeal's ruling in Hopwood v Texas, 78 F 3d 932 (5th Cir 1996) cert denied, 116 S Ct 2581 (1996). Meanwhile, the Supreme Court declined to consider statistical evidence of racially disparate application in reviewing death sentences in McClesky v Kemp, 481 US 279 (1987). The upshot will be that Blacks will be increasingly excluded from political representation, business opportunities, advancement in employment, and higher education, and more likely to be executed-all in the name of equal protection of the laws. Such measures do little to promote increasing trust and confidence in one another or to enhance respect for democracy on the part of the less advantaged.

56 Rawls, above n 24, at 249.

57 Ibid at 250.

58 Ibid at 251.

59 Fisk, Milton ‘Justice and Universality’ in Morality and Social Justice: Point/Counferpoinf (J Sterba et al, ed, 1995) p 240.Google Scholar

60 Fisk uses the term but does not explicitly define it. See Milton, Fisk Ethics and Sociefy, pp 41–53 (1980).Google Scholar My account is derived from the Frankfurt School's notion of fierrschaj?, discussed in Raymond Geuss The Idea of a Critical Theory, (1981) pp 15–18. Geuss construes Herrschaft as the power to repress preferences rather than interests. In this change I think I am closer to Fisk's meaning. Domination may but need not involve the intention to impose unnecessary unequal frustration of interests; it may simply have that effect. For present purposes we may understand the idea of one group, S, benefiting at the expense of another, S' as Roemer suggests, in terms of S being worse off and S' better off were S' to withdraw from cooperation with S, ie as the possibility of a better alternative for S', in the sense of offering greater satisfaction of its interests. See Roemer, John A General Theory of Exploitation and Class (1982) pp 194–195.Google Scholar

61 My term, not Fisk's. Emancipation is a matter of degree: a group may have an interest in resisting some forms or degrees of domination but not others (see n 107).

62 Milton Fisk The State and Justice 2 (1989) p 2 passim.

63 Ibid at 72.

64 Plato The Republic (G M A Grube, trans 1974) i 338c.

65 Rawls admits this in replying to Sandel, when he restricts the applicability of his theory of justice to modem liberal democratic societies. See John Rawls ‘Justice as Fairness: Political Not Metaphysical’, 14 Phil and Public Affairs 223 (1985) as well as Rawls, above n 24.

66 Mill, above n 37, at 281.

67 Ibid pp 281–282.

68 Fisk, above n 62, at 71.

69 Ibid at 93.

70 Ibid at 67–72.

71 Eugene Genovese Roll, Jordan, Roll (1974). Genovese's thesis that masters imposed a hegemonic systemic of paternalistic relationships in which there were mutual if highly asymmetrical obligations has been widely disputed, eg, by Jones, above n 39, at 204–205, largely because it is felt that this point underestimates the role of force and coercion in maintaining slavery. But the views are complementary, not inconsistent. Gramsci, on whom Genovese relies in formulating his theory, argues that stable rule requires a mixture of consent and coercion in which, if a society is to be stable, consent must be dominant element. Antonio Gramsci Selections from the Prison Notebooks 12,80n, 161, 239, 242n, 267, passim (Q Hoare & G Nowell Smith, eds and trans 1971).

72 Fisk, above n 62, at 71.

73 Ibid at 95.

74 What the specific interests of the subordinate group are matters. I assume that these are in fact emancipatory, but they need not be so in principle. Fisk's argument, but no mine, will apply in any cases where these interests are such that the justice of that group merely involves a reversal of the positions of the dominant and subordinate groups-eg the former slaves enslaving their former masters.

75 Hildreth, Richard Despotism in America (1840) p 82 Google Scholar, quoted in Jones, above n 39, at 10.

76 Ibid at 93–95.

77 For the circumstances in which groups and individuals are likely to respond with outrage rather than acquiescence, see Moore, Barrington Injustice: The Social Basis of Obedience and Revolt (1978) pp 81–103.CrossRefGoogle Scholar

78 Fisk above n 62, at 67–68. The first version of ideal justice mentioned is utilitarian or, more broadly, consequentialist, and is Fisk's main target because it is less ideal (and so, he thinks, more plausible). He argues that consequentialist views of ideal justice fail for reasons like those I have advanced against Rawls. Ibid at 72–79. Neither Fisk nor I consider natural rights theories like Dworkin's, see above n 16, but these too can be critiqued in the same way: claims of natural right, like those of contractarian or consequentialist justice, that violate the basic interests of some group will, by the interest thesis, be rejected by that group, and cannot provide a stable basis for social cooperation.

79 See Fisk ‘History and Reason in Rawls’ Moral Theory', in Reading Rawls, above n 4, at 53.

80 Fisk's own meta-ethical argument for this conclusion is based on a controversial ethical naturalism, on which ethical facts are just facts about human beings, their nature, and their environment. See ibid. and Fisk, above n 60, at 15–27. But relativism is also supported by the argument from reflective equilibrium, whose premises are perhaps less contentious.

81 Fisk argues too quickly that such conflict must end in ‘resort to force’. Ibid. at 32. This often happens. But between agreement in principle and resort to force there is the large domain of politics, where basic disagreements are contested without overt violence or threat of its use. War is after all the continuation of politics by other means.

82 Holmes, Oliver Wendell Jr ‘“Masters and Men”: The Gas-Stokers’ Strike', in The Mind and Faith of hstice Holrnes (Lerner, M, ed 1943) pp 50–51 Google Scholar, reprinted from 7 Am L Rev 582 (1873).

83 Holmes ‘The Path of the Law’, in The Mind and Faith of Justice Holmes, above n 82, at 79–80, reprinted from 10 Haw L Rev 457 (1897).

84 Ibid.

85 Holmes, ‘Privilege, Malice, and Intent’, in Collected Legal Papers (1920) p 128.Google Scholar

86 Rawls, above n 6, at 18.

87 Fisk writes, ‘…[T]o decide [whether one is going to place oneself in a group] one would have to have adopted principles and values that it would be possible to have only through being part of some group already’. Fisk ‘Intellectuals, Values, and Society’, 15 Phil and Social Criticism 151, 161 (1989). As Fisk acknowledges, he here comes close to the communitarian views of Sandel. See Sandel, above n 4, at 153, passim. Where Fisk diverges from communitarianism is in his emphasis on social divisions and the efficacy of real interests over shared conceptions of the good.

88 See Rawls ‘Kantian Constructivism’, above n 8, at 544 and Rawls, above n 24, at 72–88.

89 Thomas, Jefferson, Notes on the State of Virginia, quoted in Derrick Bell And We Are Not Saved 28 (1987)Google Scholar.

90 Moore, above n 77, at 90. Moore understands by moral autonomy three capacities: moral courage to stand up to oppressive or destructive rules, intellectual capacity to see that they are oppressive, and moral inventiveness to propose alternatives on the basis of which to critique such rules. Ibid at 91. This analysis makes clear why moral autonomy is absolutely crucial for subordinate groups.

91 I use Calhoun as my example because of his recognizability, but he was in fact a slaveowner. A case might be made that his primary identification was as a politician, but if he is not the best example one might use instead any of the little-known non-slaveowning Southern farmers who fought for the Confederacy without themselves having any interest in the preservation of the peculiar institution.

92 Another possible example is the end of European colonialism. But this is less clean and uncontentious than the collapse of Communism. The latter met serious repression only in Romania, and only briefly. The former included not only the relatively pacific devolution in British India (closest to the Communist case) but also the lengthy and brutal conflicts in, eg, Malaysia, Kenya, or Indochina. The end of apartheid in South Africa appears to be between these extremes of dominant group surrender and violent opposition. Even in cases where dominant groups did change their minds, as with Communism, it is doubtful that this explains the diminution or abolition of the form of domination their justices legitimated. The collapse of Communism or British colonialism is probably better explained in terms of their economic unsustainability than the rulers' change of mind.

93 Thus if I accept the principle of noncontradiction, but in the course of reasoning produce a contradiction, I am obligated by my own standards to reject at least one of the contradictory claims, even if I do not see the contradiction or think it gives me a reason to reject one or the other of them.

94 Geuss, above n 60, at 62.

95 Rawls, above n 6, at 133.

96 For example the ham may be understood in religious terms, as it often was for slaves. See Genovese, above n 71. Some religious terms may be correct, but since religious doctrines conflict, not all of them can be correct together.

97 See Schwartz ‘The Paradox of Ideology’, above n 13.

98 This raises the question about whether effective resistance by dominant groups shows that the radical justice of the subordinate ones is inadequate. I take this up in section 4. 2.

99 Plato, above n 64, at viii 546a–b.

100 John C Calhoun, quoted in Richard Hofstadter The American Political Tradition (1948) p 79.

101 60 US 393,404 (1857) (a slave who has been taken to a free state is not a citizen of the United States and has no right to sue in federal court). Taney, however, stated that Blacks were ‘so far inferior, that they had no rights which the white man was bound to respect’ so that ‘the Negro might justly and lawfully be reduced to slavery for his [the white man's] benefit’. Ibid at 407. The benefit of the slave apparently did not figure in the matter for Taney. If the argument of this paper is correct, Taney's sort of view cannot be the official basis for any lasting relations between dominant and subordinate groups. The weight of scholarship is that it was not. Jones says that the official ideology of the slaveocracy was that ‘enslavers were benevolent patriarchs who cared for, protected, and cherished their slaves. In return, supposedly loyal and grateful servants labored happily and diligently to please their beloved masters’. Jones, above n 39, at 27.

102 Tennent v Dendy, 23 SCL (Dud.) 83, 86 (1837). This way of thinking involved a good deal of wishful thinking, as Jones comments, drawing attention to the conditionals in this passage. Jones, above n 39, at 197.

103 Unlike some other forms of domination, for example, wage labor. That this involves subordination is not obvious, even if, as socialists contend, it is a form of domination.

104 Plato, above n 64, at iii 414a ff.

105 Fisk, above n 59, at 240–241, responding to an earlier version of this criticism in Schwartz ‘Revolution and Justice’, above n 13.

106 Some feminists would dispute that the violence against women's resistance has been less, citing sanctioned misogynist violence in many cultures (footbinding in China, clitorectomy in Africa, witch-burning in early modem Europe), and unofficial but widely practiced rape or spousal abuse in our own. Pervasive violence against women is real, but my point concerns organized suppression of organized resistance. There has been little of the latter until recently, and it has not met the kind of suppression faced by, say, Nat Turner. Why that might be is an interesting question on which I cannot speculate. But it suffices that even modem feminist movements have faced an uphill battle against masculine privilege.

107 A subordinate group may have an interest only in emancipation from a particular kind of domination (see above n 61). Women's emancipation may not require that of slaves. (The early women's suffrage movement, however, was strongly Abolitionist.) I suppress this qualification for the sake of simplicity. But if a radical justice opposes some form of domination but licenses other forms, its greater adequacy will be only comparative. It may be more adequate than the official justice it opposes, because it would abolish the forms of domination that justice permits, but still itself inadequate because it pennits some forms of domination. Only a justice that does not permit domination at all can be fully adequate.

108 Suppose, though, that a dominant group exterminates a subordinate one, as the Nazis attempted to do with the Jews. Must we say that such extreme domination is not unjust if it is successful? No, first, because extermination is incompatible with the reconciliation of interests necessary for justice. Abolishing the possibility of resistance in this manner is the apotheosis of rule by brute force. Second, the objection presupposes that domination can be condemned only by the subordinate group that it affects. It is the argument of this paper, of course, that domination is unjust for everyone because justice is objective in the sense specified. The argument, if valid, does not require that any particular group actually draw the conclusions called for by their own premises. Nazis should but will not acknowledge that the Holocaust was immoral, but if I am right, their moral blindness does not undermine the judgment that it was immoral even for them.

109 Fisk, above n 59, at 241.

110 See Aptheker, Herbert ‘Negro Slave Revolts in the United States’ in Essays in the History of the American Negro (1945) pp 60–70.Google Scholar

111 WEB Du Bois The Suppression of the African Slave-Trade 1, 23, in Writings (N Huggins, ed 1986).

112 See Kenneth Stampp The Peculiar Institution, (1956) chapters 3–4, Genovese, above n 71, part 1, Jones above n 39, passim.

113 See Jones above n 39, chapter 1.

114 For modern societies see Barrington Moore Jr Social Origins of Dictatorship and Democracy (1966) and above n 77.

115 See Jon Elster Sour Grapes (1982).

116 See Joshua & Joel Rogers On Democracy (1980).

117 Hegel, GWF Introduction to the Philosophy of History (Rauch, L, trans 1988) p 22.Google Scholar

118 Mere resistanceeven successful resistance–is too weak for the strong case, which requires (7), not just (6). Someone like Foucault might argue that such resistance merely replaces old forms of domination with new ones of equal severity. See Michel Foucault Discipline and Punish (A Sheridan, trans 1979). (Foucault's own notion of ‘disciplinary power’ does not involve unequal power to frustrate interests, but set that aside.) If so, the fact of domination would be stable even if no form of domination would be, and we could not, on my grounds, condemn as unjust domination as such. For the strong case, the Foucauldian must be wrong. Even if the Foucauldian is right, though, we could still say that each form of domination is unjust on my grounds, though domination as such would not be. Thus, if resistance to each such form is inevitable, as Foucault thinks, and is in the long run successful, we might have a ‘moderately strong case’.

119 Orlando, Patterson Freedom, vol 1 (1991) p 20 Google Scholar.

120 Geuss, above n 60, at 66–67.

121 Strictly, the weaker claims need not be relativized to us, but they must be relativized to societies or cultures in which domination is reflectively unacceptable and for which subordinate group resistance promotes increased emancipation. The weakening is necessary if not all societies and cultures satisfy that description. I shall continue, however, to speak of relativization ‘to us’. This way of talking does depend on the perhaps overoptimistic assumption that domination is unacceptable to us.

122 Geuss, above n 60, at 63.

123 Rorty, above n 50, at 31. The strong case does not imply this, even if, as Rorty thinks, modern liberal democracy is the end of history. But the strong case does imply that Orwellian domination would eventually be reduced and then replaced by some more emancipatory order, if not necessarily the kind of liberal democracy that prevails in the late 20th century industrialized West.

124 Ibid at 34.

125 Ibid at 29.

126 In multicultural societies, particularly those which include premodern cultures or cultures with strong premodern elements, judges and legislators may be so called upon, and the problem of dealing with practices of domination in traditional cultures which are incorporated into modem societies may pose the relativist worry quite sharply for the weak view. The tension in India between the practical subordination of the Untouchables and the formal egalitarianism of the law is strong. Still, these cases, while important and hard to address, are somewhat marginal for practical legal purposes in more fully modem societies where remnants of premodern culture are slight. The moral questions remain pointed, however, insofar as we want a critique of the justice of, eg, sexism in conservative or fundamentalist Islam. Here the strong view provides a clear basis for critique apparently lacking in the weak view.