ARENA Working Papers
WP 00/7



The Future Soul of Europe: Nationalism or Just Patriotism?

A Critique of David Miller's defence of Nationality*

Andreas F�llesdal**
ARENA, University of Oslo


The challenges facing the European Union will require extensive and mutual trust to ensure compliance. Some have argued that a shared European-wide national identity is necessary to ensure such stability of practices and institutions. The philosopher David Miller is pessimistic about the prospects of European-wide nationalism of the appropriate sort. The present paper provides an in-depth and critical discussion of Miller's argument, and concludes that Miller's defence of nationalism as the unique source of trust is unconvincing. Moreover, Miller's pessimism regarding the European Union is premature, if relevant at all. Alternative grounds for supporting common institutions are available, and may be within reach for the European Union. The shared bases among citizens need not include a broad range of values and cultural belonging, but might plausibly be restricted to Just Patriotism of the kind suggested in the Liberal Contractualist tradition.


One of the most pressing issues within international ethics today is no doubt the question of national sovereignty and the persistence of nationalism. This is of special pertinence and importance to Europeans given the history of civil wars and wars between nation states on the European continent. Many see the European Union as an attempt to keep unrest between nation states in check. One objective has indeed been to build and maintain trust and stability with the aid of fair and common institutions, so that Europe does not once again become the violent battleground that it became twice in the 20th century. All in all, there is no doubt that the debate about the European Union, its shape, future and preconditions, offers instructive contributions to a broad range of normative discussions about nation states, their legitimacy and their future.

The President of the European Commission, Mr. Romani Prodi, is on a quest for Europe's 'soul'. In an eloquent speech to the European Parliament in 1999, he insisted that the further development of Union institutions must 'gradually build up a shared feeling of belonging to Europe'. The developments he has in mind include strengthening the European Parliament, regulating the right of Member State veto in exceptional cases, and changes in the Commission power. To be sure, the challenges facing the European Union will require extensive and mutual trust – the prospects of requiring Europeans to risk their lives in military action under Union command, and increased reliance on majority rule to mention but two. But a shared European-wide national identity need not be part of the solution, or so I shall argue.

The British political philosopher David Miller might be thought to support Prodi's diagnosis, by providing a thought-provoking defence of nationality as the 'cement of society'. The national community

embodies a real continuity between generations; and perform a moralising role, by holding up before us the virtues of our ancestors and encouraging us to live up to them.
people are held together not merely by physical necessity, but by a dense web of customs, practices, implicit understandings, and so forth. ...
in a national community a case can be made out for unconditional obligations to other members that arise simply by virtue of the fact that one has been born and raised in that particular community.

(Miller, 1995: 36, 41, 42)

Miller's philosophical views concerning the need for national identity provide illuminating insights about the prospects of legitimate European institutions. His conclusions are dire for proponents of an ever closer Union: he is pessimistic about the prospects of European-wide nationalism of the appropriate sort.

The present paper undertakes an in-depth and critical discussion of Miller's argument, partly to assessment Mr. Prodi's diagnosis and prescription for Europe. The upshot is both bad news and good news. The bad news is that Miller's defence of nationalism is unconvincing. The good news, for those who share Mr. Prodi's ends, is that Miller's pessimism is premature, if relevant at all. Alternative grounds for supporting common institutions are available, and may be within reach for the European Union.

After a presentation and elaboration of Miller's argument in section 1, problems are considered in section 2. We may agree with Miller's claim that trust among citizens is important. But it remains an open question whether nationalism is the only source of trust, whether it indeed is such a source at all – and whether what Miller proposes is nationalism at all. Section 3 considers Miller's reasons for rejecting alternative bases for trust drawn from 'universalist' theories. Section 4 defends Liberal Contractualism against such objections, in support of the role of Constitutional Patriotism (Habermas, 1992) or a public theory of justice (Rawls, 1971a, 1993). These alternatives withstand Miller's criticisms, or so I argue. Thus Miller's pessimistic prognosis for a fair Europe is premature.

By way of introduction, I first consider the main motivation that fuels Miller's contribution. He argues for nationalism as a source of trust required for redistributive welfare regimes.

Dire Prospects for European Welfare Regimes?

Is a fair Europe likely? Pessimism about where the European Union is heading is not new, particularly not among the defenders of redistributive arrangements. Some critics have noted that efforts at limiting or compensating for the perceived injustices of the market have failed as a result of the decision procedures of the European Union. Co-ordination problems among Member States render it difficult to maintain the domestic safety nets, yet prevent the emergence of a European-wide alternative. Such co-ordination traps may be resolved by joint action, but the political prospects are dim (Scharpf, 1988, 1999).

Others note that democratic arrangements at the European level are missing. Thus we have little reason to hope for a democratically enacted pan-European welfare regime to supplement the domestic efforts. Democratic institutions have yet to be developed, and importantly, there is no European 'public sphere' of media for deliberation. In the absence of opportunities for taking others' weal and woe into consideration through public discussion and scrutiny, majority rule runs the risk of tyranny (Grimm, 1995).

These pessimists are prepared to accept that institutions and media might change, and that these institutional features and lack of deliberative arenas may be transient. Thus, careful reform over the long haul cannot be ruled out. David Miller, on the other hand, provides a more fundamental argument against European redistributive policies, on the basis of thought-provoking claims about the role of nationalism, and its permanent absence in the European Union 1993 (Miller, 1995, 1993). Over the years, David Miller has provided sustained and often sound arguments concerning equality and community, so his present warnings should give us pause.

Any acceptable normative political theory, on Miller's view, must justify redistribution beyond self-interest. Such a theory must support two considered judgements. Individuals unable to provide for themselves must be protected and provided for, and there are special obligations holding between compatriots: 'obligations that we owe to one another – obligations of the sort that are manifested in social security schemes and public provision for citizens' needs' (Miller, 1995: 178). These commitments to solidarity make Miller wary of theories that regard community membership as a 'cultural supermarket', since they fail 'to address the question what holds a society together, and what is the source of the obligations that we owe to one another' (Miller, 1995: 178). Miller holds that arguments of 'reciprocity' based on self-interest are insufficient. Instead, he has sought to rehabilitate the notion of nationalism, of some disrepute in recent political philosophy. Shared nationality provides the answer to the question as to who has responsibility for those unable to provide for themselves. It is only

because we have prior obligations of nationality that include obligations to provide for needs that arise in this way that the practice of citizenship properly includes redistributive elements of the kind that we commonly find in contemporary states.

(Miller, 1995: 72)

His version of nationalism provides one justification for redistribution, and no other accounts appear to fit the tasks he identifies:

Nationality has to be credited with much that is valuable in our political life, especially, as I noted at the beginning of the paper, those social-democratic institutions that in European states have served to counteract the economic polarisation and social fragmentation that a market economy tends to produce.

(Miller, 1995: 81)

Global markets threaten this solidarity. Duties towards the vulnerable may corrode due to the 'polarising effects of the global market' (Miller, 1995: 187). When domestic national identities dissolve, political elites will not be stopped from dismantling the institutions that protect the vulnerable.

For the purposes of this article, let us accept such solidarity norms of redistributive obligations and hence lay aside libertarian conceptions of justice such as those of David Gauthier (Gauthier, 1986, 1990). The issue to be addressed is Miller's defence of the nation state as the largest circle of such solidarity. Miller holds that his account – and apparently no other – will allow 'that redistributive elements can be built in which go beyond what the rational self-interest of each participant would dictate' (Miller, 1995: 75). I shall suggest that Miller dismisses such alternative theories prematurely.

Miller seeks to argue for nationalism on the basis of trust, and this renders him pessimistic about the prospects of redistributive arrangements in Europe. This argument is flawed. The upshot is that the need for redistributive arrangements based on trust need not draw on nationalism of the kind Miller suggests. In consequence, the prospects of redistributive arrangements in Europe need not be as bleak as Miller suggests. The quest for Europe-wide trust is important, but a European national identity of the sort Miller supports may not be required.

Nationalism to Maintain Trust and Stability

One reason why Miller's argument is of obvious interest for the study of international relations and the future of the European Union is his explicit concern for stability. General compliance with existing policies and institutions is a paramount condition for a political order worthy of the name. One - of several - mechanisms for securing the requisite expectations of reciprocal compliance builds on shared values. Miller's main argument for nationalism provides a thought-provoking exposition of this argument:

a viable political community requires mutual trust, trust depends on communal ties, and nationality is uniquely appropriate here as a form of common identity.

(Miller, 1994: 143)

A charitable interpretation of this argument from stability takes it to proceed in four steps.

1. Compliance with redistributive arrangements typical of welfare state regimes requires trust

The state is more stable if based on a national community, since compliance with costly policies requires trust. The population must believe that need-based provisions will in fact be distributed fairly according to need (Miller, 1994: 142).

The reasons why trust is important for welfare arrangements appear to stem from problems of partial compliance: the suspicion either that the contributors or the beneficiaries of redistribution are failing to do their part, to the detriment of others. The participants in redistributive welfare arrangements will want to know that others contribute when they contribute themselves. Partial compliance may make already costly burdens excessively costly for those who do their share. Even the suspicion of such partial compliance can wreak havoc with co-operative arrangements. This is because the motives for compliance are often complex.

Three different motivational set-ups may be distinguished. Firstly, people may comply unconditionally – regardless of whether others do their share. For this segment of the population, the expected behaviour of others is irrelevant.

People may instead have a preference for not doing their part, even when others co-operate – but they prefer general compliance to general defection. This second kind of motivation – the Free Rider – gives rise to dilemmas. Each of the participants may prefer all others to comply, without themselves complying. The result may be the end of collective action. A collective solution to this conundrum is coercive compliance, sanctioning unilateral defection for the sake of general co-operation. In our setting, sanctions can ensure that citizens of Europe contribute to redistributive schemes benefiting non-nationals, or punish those Europeans who seek benefits beyond their due entitlements.

The third preference set-up is known as an 'Assurance Game': each prefers general compliance, and prefers to comply, if all (or most) others comply – but each prefers to defect if all others defect (Sen, 1967). 'I am prepared to do my part, but only if I am convinced that others will do theirs.'

2. Trust is important to remove problems of partial compliance

Trust in the behaviour of others can serve to reduce the problems generated by the suspicion that others are free riders and by conditional compliers. Such trust can be secured by sanctions, which shift individuals' preferences, so that even free riders will prefer to comply if the risk of being caught is high enough. Sanctions also promote compliance by conditional compliers, since sanctions provide more reliable expectations about the compliance of others. But for a community of conditional compliers, information may suffice for trust. Sanctions can therefore play an important role for fostering trust in the compliance by others, particularly when individuals do not know whether the others are free riders or conditional compliers.

However, sanctions are a less than perfect mechanism for ensuring compliance. Sanctions can be costly and cumbersome, and suspicion of other's low risk defection can threaten complex co-operative ventures such as redistribution.

Thus, unconditional or conditional compliers are to be preferred. When all participants are known to prefer such compliance, suspicion of defection is reduced – and hence the defection by conditional compliers is reduced (Ostrom, 1991). This makes for more stable redistributive practices.

Trust that others are conditional or unconditional compliers with redistributive arrangements, rather than free riders, is necessary for general compliance and hence stability.

3. Nationality provides the common identity appropriate for redistributive arrangements

Miller then claims that communal ties and common identity, in the sense of shared interests, are central for ensuring the requisite trust. Clearly, individuals who prefer conditional or unconditional compliance, and who are known to have these preferences, will secure stable redistribution better than individuals who are free riders. Thus, a shared, public commitment to such arrangements seems beneficial to redistribution.

Miller regards nationality as a particular collective source of personal identity:

These five elements together – a community (1) constituted by shared belief and mutual commitment, (2) extended in history, (3) active in character, (4) connected to a particular territory, and (5) marked off from other communities by its distinct public culture – serve to distinguish nationality from other collective sources of personal identity.

(Miller, 1995: 27)

The need for shared beliefs and mutual commitment is presumably due to the role of nationality in removing problems of partial compliance through trust.

4. Nationalism provides the unique common identity appropriate for redistributive arrangements

Miller then appears to hold that nationalism provides the uniquely appropriate common identity appropriate for redistributive arrangements. It is not clear how this follows, except as an argument by exclusion – that there are no alternative accounts left, once libertarianism is rejected.

Miller's Argument Considered

What are we to make of Miller's argument for nationality from trust?

Let us agree with Miller's observation that trust plays an important role for stability, and that correct stable expectations about others' behaviour is important for maintaining redistributive arrangements.

However, it is not clear that Miller's conception of nationality is required to solve the problems of partial compliance.

a) What must participants be committed to?

In light of the sketch offered about why trust is needed, it is not clear that those maintaining a practice need to share a broad or fundamental set of beliefs or commitments – beyond a commitment to upholding the redistributive arrangements. An important, and unresolved, issue is thus what shared values and 'shared public culture' Miller can have in mind – and whether this is reasonably called 'nationality'. For the issue of redistributive arrangements in the European Union, the relevant questions are parallel: What shared values and culture is needed to sustain such solidarity in Europe?

Three alternatives may be indicated.

Firstly, there may only be agreement on complying with certain principles of action. Thus, famously, Jacques Maritain argued for human rights as constituting a very thin overlapping consensus:

It is not reasonably possible to hope for more than the convergence in practice in the enumeration of articles jointly agreed. The reconciling of theories and a philosophic synthesis in the true sense are only conceivable after an immense amount of investigation and elucidation of fundamentals, requiring a high degree of insight, a new systematisation and authoritative correction of a number of errors and confusions of thought...

(Maritain, 1949: 11-12)

However, it is not clear that mere agreement on certain principles or practices suffice. Rules of practices must be interpreted, revised and applied; and suspicion of defection will flourish unless the reasons others have for complying are visible for others.

Secondly, a 'thick' set of values, if shared by all, can have a substantive content confirming the redistributive practices as expressing the proper responsibility of each member of society for one another. This approach faces the challenge of value pluralism. How can these institutions and such comprehensive values be imposed on all members of a society, even when citizens disagree about the good life? This is one fundamental challenge facing Miller's view insofar as it is taken to support 'nationalism'. Furthermore, of course, only some such substantive values will endorse redistribution. Miller must thus provide some criteria for determining which beliefs, commitments and cultures are within the acceptable range for legitimate nationalism – domestically and in the European Union.

A third strategy requires agreement on certain practices, and on their immediate justification sufficient to ensure shared interpretation, application and stable compliance, all the while seeking to avoid controversial metaphysical assumptions or contested views about the proper ends of humans. I take John Rawls, J�rgen Habermas, and other liberal theorists to contribute to such projects. Indeed, Rawls underscores the concern for stability, and claims that

the problem of political liberalism is: How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?

(Rawls, 1993: xviii)

It would seem possible for Miller to pursue the third strategy. However, he hesitates about the alleged 'neutrality' imposed by such views. This brings us to the second issue pertaining to Miller's position: what is the content of the common political culture shared by all nationals?

b) What common political culture must be shared?

An important issue concerns the content of the 'common political culture'. Miller regards this as

a set of understandings about the nature of a political community, its principles and institutions, its social norms, and so forth, [as opposed to] ... a private culture is all those beliefs, ideas, tastes, and preferences that may be unique to an individual, or more likely shared within a family, a social stratum, an ethnic group, or what has been called a 'lifestyle enclave'.

(Miller, 1995: 158, referring to Bellah et al., 1985)

However, Miller's account fails to explain in a convincing way what is – and should be – part of the political culture. The problem is partly one of contested demarcations. This can be illustrated by his own view that Scots, the Welsh, and the Northern Irish are not separate nations. Britain should not be thought of as 'a multinational state in which common political institutions hold together communities with separate identities' (Miller, 1995: 173), but rather as one nation. This surely raises the issue of what are necessary or sufficient elements of a common political culture.

The distinction between private and public culture becomes even more important insofar as Miller wants to distinguish his nationalist position from liberalism. He notes that his nationalists,

though perhaps favouring neutrality on some cultural questions, are committed to non-neutrality where the national culture itself is at stake. In other words, where some cultural feature – a landscape, a musical tradition, a language – has become a component part of national identity, it is justifiable to discriminate in its favour if the need arises.

(Miller, 1995: 195)

Moreover, it is unclear why Miller requires a 'thick' political culture in order to maintain trust in shared institutions – beyond that suggested by liberal theorists.

c) Why political and territorial aspirations?

If trust and a narrow political culture are required, we are led to wonder why Miller insists that the nation must have political and territorial aspirations. Here he departs from other defenders of moderate nationalism, such as Yael Tamir (). Miller claims that 'it is an essential part of having the [national] identity that you should permanently occupy that place ... A nation ... must have a homeland.' (Miller, 1995: 24) This 'helps to explain why a national community must be (in aspiration if not yet in fact) a political community' (ibid., 24). However, making this into a defining criterion of nationality does not explain why general compliance with institutions requires such aims.

It is not clear that considerations of trust support the restriction to groups with political and territorial claims. To be sure, he notes that traditional sovereignty need not always be needed, but still the nation itself must decide on what to claim, and what counts as constitutive of their culture:

The guiding ideal here is that of a people reproducing their national identity and settling matters that are collectively important to them through democratic deliberation. To achieve that, they need a political unit with authority of the relevant scope, but what that scope must be will depend on the particular identity of the group in question, and on the aims and goals that they are attempting to pursue. ... It is therefore going to be difficult to set apriori limits to the proper scope of sovereignty from this perspective. Moreover, we cannot tell in advance which particular features of a society's way of life will come to assume importance as markers of national identity. ... In this area /national currency/, a collective belief that something is essential to national identity comes very close to making it so. Once you combine the principle of national self-determination with the proposition that what counts for the purposes of national identity is what the nation in question takes to be essential to that identity, it follows that nothing in principle lies beyond the scope of sovereignty.

(Miller, 1995: 100-1)

One reason for insisting that nations must have political autonomy is to protect the common culture, which in turn is regarded as a condition 'for a person's having an identity and being able to make choices in the first place' (Miller, 1994: 154). This defence seems unsatisfactory. It would support legal immunity not only for groups we intuitively may grant are nations, but also for a wide variety of groups who share values and seek to pursue them. At the same time, this defence stops far short of justifying sovereign statehood. What seems required is systematic argument, in sector after sector, on the basis of a variety of interests, about what sorts of legal powers a group needs to secure the legitimate elements of their common culture. Thus this argument might support the claims of any set of individuals should enjoy whatever powers they need to ensure the flourishing of their own 'culture'. The result would be a much broader range of social groups enjoying a broad variety of legal powers and immunities than what is traditionally meant by 'sovereign nation states'. In response, Miller might pursue two further reasons for the concern with political and territorial claims, relating to trust.

This definition of nationality may make sense when shared territory is a good indicator of shared values or interests. This territorial focus also identifies one set of comprehensive and mutually exclusive cultures, avoiding the myriad of conflicting claims that would otherwise arise for individual with multiple loyalties and 'identities'.

However, neither of these two is decisive in today's world. Firstly, in states with freedom of religion and speech, territorial borders do not identify a population with a broad range of shared values and a common, dominant identity. Political borders may delineate the reach of common institutions and sanctioning mechanisms, but these cannot uncontroversially be used in the pursuit on common values. Nor, I have suggested, are shared thick values needed. Secondly, the territorial focus removes conflicts only if contested territorial claims can be adjudicated. However, this is notoriously not the case in the present world order. Furthermore, even though undisputed borders may eliminate conflicting claims, other solutions are also available – for instance, a distribution of authorities in a federal or consociational arrangement according to private-public distinctions, or social functions, or by appeals to subsidiarity. Miller is right to point out that such arrangements often entail less redistribution across sub-units (1995: 84-85), but this fact does not entail that less redistribution is wrong. The force of this observation depends on whether we agree with Miller that redistributive claims are completely independent of the extent of mutual interdependence in collaborative arrangements.

To conclude, it is not clear that Miller's defence of nationality on the basis of the need for trust succeeds. What is justified is a shared set of practices with some public, common value platform, but this requires neither a 'thick' public political culture nor a set of individuals who have political or territorial aspirations. This modest shared normative platform would seem a poor explication of the term 'nationality'.

Miller's Objections to Universalist Theories of Justice

Miller raises several concerns against 'Ethical Universalist' normative theories, apparently including those associated with Habermas and Rawls. [1] He holds that the personal commitments such theories focus on are not sufficient for the tasks performed by nationality. In the European context this is relevant, as Habermas for one has stressed the need for a shared political culture focussed on the constitution or its equivalent. Such a constitutional patriotism must suffice (Habermas, 1992: 1997). Miller disagrees:

the national identities that support common citizenship must be thicker than 'constitutional patriotism' implies. If we are attempting to reform national identity so that it becomes accessible to all citizens, we do this not by discarding everything except constitutional principles, but by adapting the inherited culture to make room for minority communities.

(Miller, 1995: 189)

Miller offers two reasons why these identities must be 'thick', summarised by his claim that

Subscribing to them [the constitutional principles] marks you out as a liberal rather than a fascist or an anarchist, but it does not provide the kind of political identity that nationality provides.

(Miller, 1995: 162)

a) Universalist principles fail to provide the political identity offered by nationality

Talk of citizenship should not replace nationality. To get a grasp of Miller's argument it is worth quoting in full. Citizenship cannot solely be

understood in terms of subscription to a set of political principles: tolerance, respect for law, belief in the procedures of parliamentary democracy, and so forth. These principles should undoubtedly feature centrally in any story about what it means to be British today, and as I shall suggest shortly it would be very helpful to have them formally inscribed in a constitutional document. It does not, however, seem that these principles, which after all are the common currency of liberal democracies everywhere, can by themselves bear the load that would otherwise be carried by a national identity. As I have already argued, a national identity helps to locate us in the world; it must tell us who we are, where we have come from, what we have done. It must then involve an essentially historical understanding in which the present generation are seen as heirs to a tradition which they then pass on to their successors.

(Miller, 1995: 175)

It seems correct that a set of such principles provides little in the way of identifying the proper role of a people in the world, or the appropriate story of its past. However, two comments are appropriate. It remains to be seen whether these theories only allow shared principles of this general form – we turn to this in section 4. Moreover, and against Miller's claim, it is unclear why there must be a 'thick' and shared set of values and practices that should serve as the justification for political power – within a nation state or in the European Union. As discussed in section 2, the arguments from trust do not support the need for a shared 'thick' platform.

b) Constitutional principles do not mark unique features of the nation

The principles Miller lists would be similar and shared among citizens of many or most legitimate states. This creates a problem for theories focusing on such principles, or so Miller argues. Nothing distinguishes a nation from others on this view. For Miller this is a flaw. He holds that

a national identity requires that the people who share it should have something in common, a set of characteristics that in the past was often referred to as a 'national character', but which I prefer to describe as a common public culture.

(Miller, 1995: 25)

National divisions must be conceived as natural ones; they must correspond to what are taken to be real differences between peoples.

(Miller, 1994: 140)

As discussed above, the reasons for nationality based on trust do not require that the shared values are unique to the participants: The point is to ensure general compliance among themselves, not to set them apart or exclude anyone else.

Against this, Miller might respond that the problem remains because these principles do not bind individuals to the practices and people of their own state, rather than to any other just state. Thus, universalist theories seem unable to account for 'political obligations' – the special ties that hold between individuals and their state. I consider this worry in the next section.

Liberal Contractualism

For these purposes, the normative tradition of 'liberal contractualism' include writers such as Brian Barry (Barry, 1995), John Rawls (Rawls, 1971, 1993) and T. M. Scanlon (Scanlon, 1982, 1998) – as well as several elements of J�rgen Habermas' contributions (Habermas, 1996, 1992). The aim here is to sketch some elements consistent with these approaches, in order to indicate how Liberal Contractualism avoids the problems identified by David Miller.

Liberal Contractualism addresses the conditions under which citizens have reason to accept institutions and cultures as normatively legitimate and binding on their conduct. The set of social institutions as a whole should secure the relevant interests of all affected parties to an acceptable degree. Institutions are legitimate in this sense only if they satisfy principles that can be justified by arguments in the form of a social contract of a particular kind. The principles of legitimacy to which we should hold institutions, are those that the persons affected would unanimously consent to under conditions which secure and recognise their status as appropriately free and equal.

Note that, unlike the contractualist tradition of Thomas Hobbes and David Gauthier, Liberal Contractualism does not seek to justify morality from a premise of self-centred individuals. Rather, it assumes that individuals generally have an interest in being 'able to justify one's actions to others on grounds they could not reasonably reject' (Scanlon, 1982: 116). They 'desire to act in accordance with principles that could not reasonably be rejected by people seeking an agreement with others under conditions free from morally irrelevant bargaining advantages and disadvantages' (Barry, 1989: 8). This commitment to give reasons is an expression of our belief in and respect for the reasonableness of others (Macedo, 1990). The aim of Liberal Contractualism is thus not to justify morality, but rather to bring this commitment to justice to bear on our rules and practices – be they domestic or European.

The limited significance of consent

One contribution of Liberal Contractualism is to delineate some limits to the morally binding rules and practices we find ourselves surrounded by, regardless of actual consent. Every individual's interests must be secured and furthered by the social institutions as a whole (Dworkin, 1978). This commitment is honed by the notion of possible consent, allowing us to bring the vague ideals of equal dignity to bear on pressing questions of legitimacy and institutional design.

Our moral obligation to obey the law of the land is justified in part by the claim that this social order could have been the subject of consent among all affected parties. But this does not entail that such hypothetical consent creates the moral obligation or duty in the same way as free and adequately informed consent binds those who so consent. Instead, Liberal Contractualism serves to delineate the limits to these duties that hold regardless of actual consent, including what Rawls' theory of Justice as Fairness calls the natural duty of justice, 'to support and to comply with just institutions that exist and apply to us' (Rawls, 1971a: 115; cf.Klosko, 1994).

Thus, Liberal Contractualism does not entail that individuals are only bound by obligations voluntarily taken on. The existing legitimate institutions are not binding on us because we actually consent, or participate in a daily tacit plebiscite (Renan, 1992). To be sure, we usually act according to the practices we find ourselves part of (Walzer, 1997: 54), but we do not have, and have never had, a real freedom with regards to the social institutions. Indeed, ordinarily we cannot choose to reject them, and not even the act of voting expresses a morally binding tacit consent to be governed. Nevertheless, we have many duties that we have not explicitly or tacitly consented to. Actual, tacit or hypothetical consent is not the source of moral obligation to comply. The idea of possible consent in the contractualist tradition does not provide the source of moral duty, but is an expression of one important condition for such duties. Obedience is required only when power is distributed fairly. Appeals to consent thus serves to recognise legitimate authority, but consent is not held to generate the moral authority of institutions .

Mode of arguments: consistency vs deduction, underdetermination

Of some relevance to the issues at hand, we should note that the contractualist approach leads us to search for principles against which no reasonable objections can be made. Principles are presented for such assessment, and the process of checking whether objections can be made yields a set of permissible principles. Note two important features:

There is no sense in which such principles of justice, or particular institutions, are deduced or generated by the process of checking whether equal respect is secured. The procedure checks for consistency, and does not offer a deductive path. Moreover, the process can in principle allow several alternative principles. Thus, the set of principles may be underdetermined, in the sense that alternative principles may all be unobjectionable.

Furthermore, the same set of principles for legitimacy may allow a variety of sets of institutional arrangements, each of which satisfies the distributive requirements of Liberal Contractualism. The moral unity provided by such a theory is not one, therefore, of deduction, but of an analysis of the institutions which show that they are consistent with, and can be regarded as an expression of, a view of individuals as enjoying equal respect.

In light of these comments, it should be clear that this tradition might allow for different just institutional arrangements. Blueprints of institutional design are out of reach. And instantiations of just institutions may be different, yet possibly equally just – for instance within different European states.

The interest in culture

Contractualist theories are said to deny the intrinsic value of community, and ignoring the 'embedded' nature of human beings. [2] Instead, society is exclusively regarded as instrumental for benefiting the interests of 'atomistic' individuals. However, we may agree with Taylor's conception of the self as embedded, and with MacIntyre's claim that our duties can only be determined by reflecting on the roles we are born into, which expand and constrain our choices (Taylor, 1985; MacIntyre, 1981: 216).

Liberal Contractualism recognises that the basic structure shapes our expectations and aspirations in fundamental and inescapable ways. Social institutions have a pervasive impact on the development and satisfaction of our interests by framing our expectations. We are concerned with the legitimacy of social institutions precisely because they exercise a strong influence on us, or our life plans and our expectations (Rawls, 1978). With changes in values, norms, institutions, history and language, new options for life choices appear, while others disappear. Members have an interest in revising their plans as options and consequences change. Liberal Contractualism can thus accommodate the communitarian concern for constitutive attachments and commitments, found within the traditions and roles we take part in, and not chosen by the individual. The satisfaction of legitimate expectations is an important interest, and stable social institutions are crucial for making and pursuing life plans. We thus have good reason to maintain social institutions, insofar as it is only under fairly stable institutions that expectations can be created and met (Follesdal, 1996).

Challenge 1: The significance of particular practices

The relationship between principles of justice and participation in particular institutional practices must be made more clear in order determine how the 'sense of justice' expresses itself among compatriots. Recall that a 'sense of justice' in Rawls' sense does not only mean a commitment to two very general principles of justice, or to abstract constitutional principles. Rather, the sense of justice is 'an effective desire to comply with the existing rules and to give one another that to which they are entitled' (Rawls, 1971a: 312). Thus acting on a sense of justice entails interacting in our day-to-day lives with other individuals in accordance with the legitimate expectations they have about our behaviour, honouring their trust in our responses.

Miller, as well as some communitarians, hold that the fact that we inhabit certain roles and are members of certain communities provides us with a sufficient justification for acting in a certain way. Thus the fact that an institution is ours is taken to be morally relevant when justifying the institutions and our compliance with its rules. The contractualist perspective, on the other hand, is criticised for leaving little if any justificatory role to the common life of an existing community, appealing instead to abstract principles.

But this objection misunderstands the role of principles of justice, which address the institutional issue of what standards a set of institutions should satisfy. For this task, it is irrelevant whether I or we live under those institutions. It does not matter for this topic, 'from the moral point of view,' that this is the society that has shaped me into who I am. But of course, within any set of institutions, individuals justify their actions by appeal to the rules of the set of institutions in place (Rawls, 1971b). So one's culture may well spell out the content of these special duties that are said to bind us, but these rules and practices do not give a complete justification of the duties, since we must then offer a justification of the existing culture as well. And for this purpose it does not matter that this particular set of institutions has shaped me into who I am.

Liberal Contractualism thus grants a justificatory role to existing practices one is part of (cf. : 134). To illustrate where this account differs from Miller's, note that he holds that

the relevant question to ask, if some question arises about what I owe to my compatriots, is not just how I feel about them at present, but what flows from my (normally unchosen) membership of a constitutive community.

(Miller, 1997: 74)

Similarly, Stuart Hampshire says that institutions are sometimes justified 'historically' by showing that 'they have become an essential element in the subject's way of life' (Hammpshire, 1983: 5), instead of by reference to a general principle of justice.

In comparison, Liberal Contractualism offers an account of justification that accepts such a sociological or historical account as a part of, but only one part of, a full justification of the institution. The justification of my duty to abide by the rules of a specific social institution must consist of 1) an argument that it is just (i.e. part of a just set of institutions); 2) an argument that this institution is in effect in my society, and 3) that its rules apply to me. The fact that other institutions existing elsewhere might be somewhat more just does not by itself generate a duty on my part to abide by them, because the second and third steps are missing.

Thus, a complete justification of an existing and just set of institution must refer to our shared history, even on the contractualist view. When we justify compliance with the existing institutions (or sanction non-compliance with it, as the case may be) we must do two things: 1) we must show that they satisfy (or alternatively violate) the relevant principles of justice. 2) We must also show that this particular set of institutions, and not another one, does in fact exist in our society: these rules, and not another set of rules, are publicly known and generally complied with. Thus a thoroughgoing justification of our institutions over other just ones must refer in part to our shared history, the general acceptance of these rules etc. On this view, then, we may agree with Miller about granting some normative importance to

the historical identity of the community, the links that bind present-day politics to decisions made and actions performed in the past.

(Miller, 1995: 163)

I thus submit that, in contrast to the theories criticised by Miller, Liberal Contractualism can accommodate and justify special duties and the value of community, based on an ideal of the individual as deeply embedded in social relations.

Challenge 2: Whence Special Duties?

We often have special duties towards particular others, both one's family and compatriots. Miller stresses special duties, and holds that they are incompatible with universalistic theories. Again, on this issue Liberal Contractualism agrees with Miller – but offers a better justification of special duties.

To be sure, special duties such as patriotism are not provided or generated by contractualism, but they are permitted, duly pruned, as compatible with principles of justice. Thus, John Rawls appeals to the natural duty of justice 'to support and to comply with just institutions that exist and apply to us' (Rawls, 1971: 115). For instance, citizens have special patriotic duties to their own country insofar as the nation-state, including the office of citizenship, firstly is a just set of institutions and secondly, applies to the citizens. Special duties, then, are ultimately supported by an 'impersonal' theory of justice: The special duties an institution imposes are morally binding insofar as the institution is permissible, i.e., part of a society which satisfies contractualist principles of justice.


A stable and just peaceful order among states requires converging expectations about mutual compliance with practices and institutions. The pervasive influence of nationalism has traditionally been regarded as a major hindrance to stability in this sense. David Miller's arguments in defence of nationality is therefore a striking contribution, particularly since he defends national identity for reasons of trust. I have argued that Miller's argument yields flawed conclusions on the basis of sound premises. He points to an important insight concerning the need for trust in ensuring stable institutions and practices. However, this basis does not offer support for nationalism of the kind he sketches. Moreover, other accounts, including Liberal Contractualism, appear to be equally appropriate solutions to the problem he identifies. Miller's substantive concerns appear to be compatible with Liberal Contractualism as I have sketched it here. Liberal Contractualism may also avoid some of the problems of 'universalist' theories Miller is concerned with – including the need to acknowledge the value of culture and shared practices in the right way.

Miller's dire expectations for Europe are too hasty, particularly given his claim that even national identities can be moulded. Historically, allegiances have proven fluid, as has been the case in Ireland. And he holds it important to 'purge the national identity of elements that are repugnant to a particular minority group” (Miller, 1994: 156):

If we wish to be a self-determining nation, and if we share our territory with people who are like us in respects A, B and C but unlike us in respect D, it would be perverse to insist on D as a condition of membership. In real cases groups may choose the perverse option; but where a common national identity already exists, it can always potentially at least be extended to embrace all those who inhabit a geographical area.

(Miller, 1994: 143)

Nevertheless, Miller would warn against a deliberate political strategy for fostering a European nation:

A national identity depends upon a pre-reflective sense that one belongs within a certain historic group, and it would be absurd to propose to the subjects of state X that, because things would go better for them if they adopt a shared national identity, they should therefore conjure one up.

(Miller, 1995: 143, my emphasis)

We can agree with Miller that the development of a European nation in his sense would be a bad idea. Nevertheless, we might look more favourably on Habermas' suggestion, that

our task is less to reassure ourselves of our common origins in the European Middle Ages than to develop a new political self-confidence commensurate with the role of Europe in the world of the twenty-first century.'

(Habermas, 1992: 12)

We might conclude, then, that Miller's pessimism about the prospects of redistributive arrangements in the European Union is unwarranted as of yet. This is not to say that time may not prove him right, for instance due to the co-ordination problems discussed by Fritz Scharpf (Scharpf, 1988, 1998). But the grounds Miller offers for his pessimism are insufficient. Mr. Prodi may continue developing European institutions that require trust among Europeans. A European national identity may be beyond reach, but just European patriotism may suffice.


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[*] The research for this paper ha been funded by ARENA, a research program on the Europeanisation of the Nation-State, under the auspices of the Research Council of Norway and by a TSER grant SOE2-CT97-3056-EURCIT. The author is grateful for this support, and for constructive comments from two referees and Henrik Syse

[**] ANDREAS F�LLESDAL, b. 1957, PhD in Philosophy (Harvard University 1991); Associate Professor at the University of Oslo and Senior Researcher at ARENA. Main interest: political philosophy of international relations. Most recent book i English: Democracy in the European Union (SPRINGER, 1998).

[1] He also appears to hold that these theories aspire to offer deductions of all principles and rules from abstract premises, and challenges the plausibility of this strategy , 71). I share his misgivings about such projects, but fail to find evidence that this is a correct description of the theories offered by Habermas or Rawls.

[2] For different sorts of criticisms, and defences on other grounds: , , , , , .

[Date of publication in the ARENA Working Paper series: 15.01.1998]