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Bernd Schilcher [*]
Institute fur Burgeriliches Recht/Rechrswissenschaftliche Fakultat, Universitatsstrasse 15/D4, 8010 Graz Austria
There has always been a rather strong contrast between liberal and communitarian views. The liberal doctrine of "irreversible plurality of philosophical and moral ideas" for instance does not only mean that consensus about social values is difficult. "A public consensus about the necessary conception of the good cannot be obtained," says Rawis. On the other hand, communitarians such as Maclntyre, Sandel, and Waizer, are deeply convinced by the idea of an "immanent telos" of societies, which in their opinion have the utmost influence on the development of individuals. A similar strong contrast exists between the liberal universalism of values and the communitarian particularism. Etzioni's New Theory now tries to overcome these unsatisfactory "tyrannies of dualism" (A. Gutmann) Instead of the traditional and hostile either- or, Etzioni puts a reconciliatory as well as. "As many other dichotomies the dualism between universalism and particularism stands in the way of the development of a social Paradigm," he re grets. Therefore Etzioni wants to combine instead of dividing. For example, social order (communitarian value) and personal autonomy (liberal value). So he proposes to install more personal autonomy in states with strong social order, as for instance Japan, and he demands more social order in traditional individualistic states like the United States ("Inverse Symbiosis"). Such "combining and balancing solutions" coincide with the theory of a "Flexible System of Private Rights" created and proposed by the famous Austrian Legal Scholar Walter Wilburg. On the level of "value principles" in the sense of Ronald Dworkin (instead of "rules" of law), Wilburg combines the differing "weights and strengths" of values (elements). An example of this is negligence, dangerous behavior, and economic capacity of risk spreading to more or less far reaching compensations of private damages, instead of the traditional either-or. The underlying idea is that of proportion. In terms of Etzioni, "The more social order within a state or society--the more individual autonomy has to be promoted." (c) 2000 Elsevier Science Inc. All rights reserved.
1. John Rawls' liberal theory
Liberalism is still a very influential theory and explanation of modern life. This theory interprets society as a system of universal cooperation between individuals, who mutually accept each other as free and equal persons.
In the theory of John Rawls, who has presented the best and most developed concept of liberalism, these persons can reach the status of free and equal citizens if they acquire two moral powers, namely a capacity for a sense of justice and a capacity for a conception of the good. Their having these powers to the requisite minimum degree to be fully cooperating members of society makes persons equal. To be equal in this sense is the achievement of personal competence.
According to Rawls, a sense of justice is the capacity to understand, to apply and to act according to the public conception of justice that characterizes the fair terms of social cooperation. The capacity for a conception of the good is the capacity to form, to revise, and rationally to pursue a conception of one's rational advantage or good. Such a conception of the good must not be understood too narrowly, but rather as a general conception of what is valuable in human life. Normally it consists of a determined scheme of final ends, which are not fixed, but may change more or less radically over the course of life.
Rawls assumes that both moral powers--a sense of justice and the capacity for a conception of the good--are always fully present. That is to say, nobody is ever incapacitated from any illness or accident. In his own words: "I put aside for the time being these temporary disabilities and also permanent disabilities or mental disorders so severe as to prevent people from being cooperating members of society in the usual sense. Thus, although we begin with an idea of the person implicit in the public political culture, we idealize and simplify this idea in various ways to focus first on the main question." (Rawls, 1993b, p. 20)
2. The liberal idea of "irreversible pluralism"--an ideological position?
Beside these fundamental ideas about persons and citizens, the conception of liberalism finds society characterized by irreversible pluralism, that is a diversity of comprehensive religious, philosophical and moral doctrines. Not as a mere historical condition that may soon pass away but as a permanent feature of the public culture of democracy. In Rawl's own words: "A public consensus about the necessary conception of the good …