Table Of Content

COMPROMISE IN ETHICS, LAW, AND POLITICS NOMOS XXI NOMOS Lieber-Atherton, Publishers I Authority 1958 II Community 1959 III Responsibility 1960 IV Liberty 1962 V The Public Interest 1962 VI Justice 1963, reissued in 1974 VII Rational Decision 1964 VIII Revolution 1966 IX Equality 1967 X Representation 1968 XI Voluntary Associations 1969 XII Political and Legal Obligation 1970 XIII Privacy 1971 XIV Coercion 1972 XV The Limits of Law 1974 XVI Participation in Politics 1975 New York University Press XVII Human Nature in Politics 1977 XVIII Due Process 1977 XIX Anarchism 1978 XX Constitutionalism 1979 XXI Compromise in Ethics, Law, and Politics 1979 XXII Property (in preparation) XXIII Human Rights (in preparation) NOMOS XXI Yearbook of the American Society for Political and Legal Philosophy COMPROMISE IN ETHICS, LAW, AND POLITICS Edited by J. Roland Pennock, Swarthmore College and John W. Chapman, University of Pittsburgh New York: New York University Press • 1979 ALLEN COUNTY PUBLIC Lib^ j=ORT WAYNE* INDIANA Compromise in Ethics, Law, and Politics: Nomos XXI edited byj. Roland Pennock and John W. Chapman Copyright© 1979 by New York University Library of Congress Cataloging in Publication Data Main entry under title: Compromise in ethics, law, and politics. (Nomos ; 21) Includes bibliographical references 1. Political ethics —Addresses, essays, lectures. 2. Compromise (Ethics —Addresses, essays, lectures. 3. Compromise (Law) —Addresses, essays, lectures. I. Pennock, James Roland. II. Chapman, John William, 1923- III. Series. JA79.C65 320'.01 79-63469 ISBN 0-8147-6574-2 Printed in the United States of America PREFACE The membership of the American Society for Political and Legal Philosophy chose “compromise” as the topic of their meetings held in conjunction with the American Association of Law Teachers in Houston, in December 1976. Whether they did so with the thought that lawmen were especially good at compromising, averse to it, in¬ terested in it, or simply conversant with it is not known. Perhaps none of these things. Possibly their feeling was that we are living at a time when interests tend to be denigrated and rights are sprouting from every tree, whether or not it has standing. The end of ideology itself having come to an end, it may well be time to reconsider the concept and practice of compromise. Tensions are present, both internal and external. The former have to do with the moral and immoral aspects of compromise; these are dealt with in several papers. The external tensions have already been implicitly adverted to. Today more and more our social institutions, indeed life itself, are being politicized. No doubt, politics is “the art of compromise.” But aggressive and competitive assertions of “rights” render compromise more difficult, even as it becomes more necessary. As the claims of groups and individuals multiply our sense of justice is strained, and our hold on the common good weakens. These problems are nowhere directly taken up in the ensuing pages, at least not in these terms. Yet much that is said here is di¬ rectly relevant to the amelioration of our malaise. And it may be hoped that the analyses and reflections of our authors will prove use- Vll Preface Vlll ful for the coming volumes on “Private Property and Its Contempor¬ ary Significance” and “Human Rights.” The first part of this volume comprises three chapters in which the nature of compromise is discussed. Martin Golding opens up many vistas in what he calls a “Preliminary Inquiry.” Despite his deliber¬ ately tentative approach, he does manage —not surprisingly, consid¬ ering the concept in question —to take positions with which other contributors disagree. Golding also makes points that illuminate types of situations that he does not himself consider. This is particu¬ larly true of his insistence that each party to a compromise must rec¬ ognize some moral legitimacy in the other’s case and that a measure of mutual trust is essential. The emergence in the West of religious toleration and the acceptance of religious freedom made possible the Western practice of politics as compromise. Today one need think on¬ ly of the Sinai and SALT to appreciate the force of Golding’s analysis. Distinguishing between compromising interests and compromising principles, Theodore Benditt nonetheless discusses possibilities and grounds for compromising both. Accepting the challenge that com¬ promise is sometimes thought of as good and sometimes as bad, Arthur Kuflik argues that this fact does not imply that the concept is either incoherent or paradoxical. He concludes by suggesting that justice itself may be a sort of compromise, not between the strong and the weak, as some may think; rather, justice as compromise takes its place among people whose interests conflict, but “who hold one another in equal regard as persons” (p. 00). At this point we break for a historical interlude. David Resnick opens it with an analysis of Aristotle’s use of compromise in the search for institutions that would receive general support and that would also be just. The next two authors, George Armstrong Kelly and Paul Thomas, deal with Hegel and Marxism, respectively. In in¬ viting these contributions the editors naively supposed that probably these scholars would be concerned with relations between compro¬ mise and the “dialectic.” But our authors were more imaginative. Kelly, noting that “Compromise” is a word that sits askew in the Heg¬ elian vocabulary” (p. 00), still finds that Hegel makes room for it in his vision of civil society. Work is left, of course, for the state to do. Here the rational element, the element of absolute reason, should penetrate life in the shape of impartial justice. In large measure, Hegel expected, this infusion of justice would be accomplished auto¬ matically. But not entirely so. As to what happens beyond the scope Preface ix of rational automaticity, however, Hegel’s “owl of Minerva” does not seem to see clearly. Does the state compromise conflicting interests and idt^s or subject them to rational rule; or is it left to chance or at least to “the cunning of reason”? Kelly’s analysis reveals fundamental ambiguity in the Hegelian theory of the state. Paul Thomas approaches Marx from the vantage point of the “his¬ torical compromise” promoted by “Eurocommunism.” Working back through Antonio Gramsci and others, he arrives at the “early” Marx and there finds, contrary to Leninist thinking and develop¬ ments, support for the proclaimed “historical compromise.” Thomas shows Marx to have been rather less uncompromising than the “orth¬ odox” Marxist-Leninists would have him. Two chapters deal with compromise and politics. Joseph Carens ponders various aspects of this subject, and he concludes with the no¬ tion, reminiscent of Richard Wollheim’s “paradox of democracy,” that sometimes we ought simply to do what is wrong. Hence the am¬ biguity of our attitudes toward compromise. Edgar Bodenheimer takes an even more positive attitude toward the practice of compro¬ mise. He sees it as essentially a synthesis among competing values, and he takes the resultant so produced to be superior to victory of any single value. The final part is composed of three chapters concerned with com¬ promise and the law. In the first of these, Martin Shapiro visualizes a continuum stretching from situations of pure consent, as in bargain¬ ing, to formal litigation, involving a solution imposed by the state. The practice of compromise occupies a midpoint along Shapiro’s continuum. But even in litigation an element of compromise re¬ mains, and the whole system works because it offers adversaries a range of options, including that of compromise. Attacking doctrin¬ aire legal theorists of either the rationalistic or the empiricist schools, Aleksander Peczenik, drawing upon practical examples, argues that “compromise and cumulation of different ideas, reasons, ap¬ proaches, and so on, dominate legal practice, legal thinking, doc¬ trinal study of law, and legal theory” (p. 00). Finally, John E. Coons develops an intriguing definition of compromise that differs from any of those that have preceded it in the volume. For him no moral tension and no paradox is involved in compromising. Rather, com¬ promise is a matter of achieving what he calls “precise justice.” And so he calls for the courts to abandon the “winner-take-all” view of civil disputes. X Preface These, then, are but a few of the ideas and suggestions the reader will find in the following pages. It remains only to make acknowledg¬ ments and to express thanks: first, to our authors and to the chair¬ man of the program committee, Robert S. Summers, who designed the panels that gave this volume its start and much of its substance. Benditt, Carens, Coons, Golding, and Shapiro all participated in the Houston meetings. The other six authors generously accepted invita¬ tions to make subsequent contributions. It is also our pleasure to note that Nomos XXI, like its two immediate predecessors in this series, has benefited from the financial support granted to the society by the John Dewey Foundation. More recently The Ritter Foundation has generously granted us a three-year subvention, which will enable the Society to enrich its programs. Finally, no acknowledgments would be complete without the name of our editorial assistant, Eleanor Greitzer, who does so much to foil those gremlins that torment editors. J.R.P. J.W.C. CONTENTS Preface vii Contributors xiii Part I The Nature of Compromise 1 1 The Nature of Compromise: A Preliminary Inquiry 3 Martin P. Golding 2 Compromising Interests and Principles 26 Theodore M. Benditt 3 Morality and Compromise 38 Arthur Kuflik Part II Historical Interlude 67 4 Justice, Compromise, and Constitutional Rules in Aristotle’s Politics 69 David Resnick 5 Mediation versus Compromise in Hegel 87 George Armstrong Kelly 6 Marxism and Compromise: A Speculation 104 Paul Thomas Part III Compromise and Politics 121 7 Compromise in Politics 123 Joseph H. Carens 8 Compromise in the Realization of Ideas and Values 142 Edgar Bodenheimer XI