Liberalism and Individually Scripted Ideas of the Good

Electronic copy available at: http://ssrn.com/abstract=1517435

Liberalism and Individually Scripted Ideas of the Good:Meeting the Cballenge of Dependent Agency

Liberalism's Conflated Commitment

Individuals have differing overall conceptions of their good. Ordinarilythey determine their own conceptions. Ordinarily they make these deter-minations on their own, perhaps with advice or correction from others,but ultimately as independent agents.

Their determinations are prompted by their personal preferences andvalues—psychological and perhaps also social features of themselvesthat they know more intimately than anyone else can. It is a canon ofmuch liberal theory that individuals are better authorities than others re-garding their own preferences and values—and that each ultimately is theauthority about her or his own interests—eclipsing or overriding the per-spectives of others, even those who know the individual very well. Suchsubjective, individually constructed accounts are the substance of thepluralistic view of the good to which many versions of liberalism arecommitted. In other words, political liberalism is very often committed tosubjective, individually scripted, and plural accounts of the good.

Achieving inclusiveness despite difference is another important com-mitment of many liberal theorists. The aim is to enable equal participationby, and give equal respect to, people whose differences in religious, cul-tural, and other dimensions of their identities and personal characteristicsinduce them to diverge in their conceptualizations of the good. Such in-clusiveness is achieved in part by assigning equal importance and statusto individuals' own conceptions of the good, however these may differone from another.

Ironically, however, this very feature introduced to ensure inclu-siveness of difference might instead defeat it in the case of people withintellectual disabilities, for a subjectivist approach to the good requiresindividuals to decide on and express what is their own good, in order toparticipate politically or otherwise engage in social life. But people withprofound intellectual disabilities cannot independently construct orcommunicate their own conceptions of the good.

That there are individuals so limited may seem to bring liberalism's

© Copyright 2007 by Social Theory and Practice, Vol. 33, No. 2 (April 2007)

311

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312 Leslie Pickering Francis and Anita Silvers

inclusiveness into question. Can a pluralistic, subjectivist account of thegood extend its reach sufficiently to people with intellectual disabilitiesand thus afford them equitable status, participation, and influence? Dolimits on their ability to articulate their good on their own suggest thatpeople with intellectual disabilities can be included in some aspects ofpolitical practice, such as caring and being cared for, but must be ex-cluded from others, such as deliberation about the bases of justice? Arethere intractable theoretical problems for such a subjective, individualis-tic approach to understanding the good that stand in the way of a fullyinclusive approach? In this article, we consider whether there is a theo-retical difficulty about liberalism's ability to maintain individually de-termined, subjectivist pluralism with respect to the good. The questionwe raise requires rethinking or reconfiguring the liberal commitment toindividual determination of the good for all of us, or so we shall contend.Conceptions of the good that are subjective and plural can be maintainedfor people with intellectual disabilities, but the idea that conceptions ofthe good are independently determined requires revisiting and revision.

Resolving the difficulty begins, we argue, by observing that the lib-eral view presented above actually is a composite of three claims. Theclaims are theoretically separate, although they often appear together.The first claim is that the good is plural: there is no single good for all,but different individuals may have differing conceptions of the good. Thesecond claim is that conceptions of the good directly or indirectly ex-press psychological states of the individual such as wants, preferences, orexperienced values.' This is a view that the good is subjective. The thirdclaim is that the good is to be conceived independently, that is, individu-als must determine their formulations of the good by themselves.

Mill famously maintained all three of these views, writing thus aboutpluralism and independence:

There is no reason that all human existence should be constructed on some one, or somesmall number of patterns [pluralism]. If a person possesses any tolerable amount ofcommon sense and experience, his own mode of laying out his existence is the best [sub-jectivism], not because it is the best in itself, but because it is his own mode [arguably,independence] ,,."^

'There are importantly different versions of this view. The relevant subjective statesmay be understood as wants, desires, preferences, interests, values, or commitments, eachunderstood in terms of psychological states of the individual. Some hold that these sub-jective states are all there is to a person's conception of the good. Others hold that subjec-tive states such as pleasure make up the domain of a person's noninstrumental values,while the means to them may be objectively determined. Our discussion is meant to applyto all of these versions of subjectivism; where differences matter, they are noted,

^John Stuart Mill, On Liberty, chap, 3, Mill's commitment to pleasure as the good isin Utilitarianism, chap, 2: "the theory of life on which this theory of morality [utilitarian-ism] is grounded—namely, that pleasure, and freedom from pain, are the only things

Liberalism and Individually Scripted Ideas of the Good 313

In what follows, we argue that understanding the good for people withintellectual disabilities places pressure on the three-part conjunction ofpluralism, subjectivism, and independence in conceptualizing the good.Our solution requires reforming the independence position to recognizethat people are cooperating, and therefore to an important extent depend-ent, agents in constructing their differing goods. Under this conceptuali-zation, people with intellectual disabilities can participate in practicesthat are centered on their own ideas of the good, even though they cannotformulate, articulate, or communicate complex ideas.

To this end, we develop an understanding of independent agency thatshows how the good of people with intellectual disabilities, althoughconceptualized, structured, and communicated through relationships ofdependence on, and interdependence with, other people, nonetheless canremain aligned with liberal values. The personalized accounts of thegood that result are "not too tightly scripted," a feature that Kwame An-thony Appiah takes to be central to liberal theory.^ Liberal theory canmaintain the traditional commitment to subjective pluralism about thegood, we argue, but only by recognizing that the enterprise of construct-ing the idea of the good can be carried on, and indeed often is carried on,in dependency.

We then consider how understandings of the good that are plural andsubjective, but not arrived at independently, can function in theoreticaland practical contexts. Finally, we address briefly whether people in gen-eral are less independent in formulating the good for themselves than theindependence claim demands. Our solution preserves the familiar liberalunderstandings of pluralism and subjectivism of the good, but throwsnew light on the role personal independence should play in liberal theo-ries of the good.

Liberalism and Theorizing about the Good

Pluralism, subjectivism, and independence are hallmarks of much liberaltheorizing about the good. Pluralism allows for multiple kinds of goodlives, each to flourish in his or her own way. It thus seems to respect in-dividual differences and with it the liberty to pursue these differences, of

desirable as ends; and that all desirable things (which are as numerous in the utilitarian asin any other scheme) are desirable either for the pleasure inherent in themselves, or asmeans to the promotion of pleasure and the prevention of pain," The discussion continueswith the argument that some pleasures are qualitatively superior to others: "It is quitecompatible with the principle of utility to recognize the fact that some kinds of pleasureare more desirable and more valuable than others,"

'Kwame Anthony Appiah, "Liberalism, Individuality, and Identity," Critical Inquiry27 (2001): 305-22,


course within the limit that harm to others may be prohibited. Concernsabout protecting liberty and avoiding paternalism have led many liberalsto adopt subjectivism and independence as well.

Many liberal theorists have wanted to avoid the homogenizing con-straints of objective theories of the good, relying on subjective perspec-tives instead, such as individual wants or value commitments. "Objec-tive list" theories^ of the good are rejected as "one size fits all," failing totailor understandings of the good to individuals' lived experiences. Thisreliance on subjective perspectives may be linked to the protection ofliberty, for abandoning the assumption that individuals are the properjudges of their own good in favor of a collective approach opens the doornot only to paternalism but, some have thought, to totalitarianism as well.^Or the reliance on subjective perspectives may be based in meta-ethicalconcerns about whether and how theories of the good can be defended.

Consent,^ hypothetical consent,^ or a justification that cannot be rea-sonably rejected' might be bases for insisting on univocal principles ofjustice or generalized delineations of the right—but not so for theories ofthe good, according to nonperfectionist liberal theorists. To consent, tobe treated as hypothetical consenting agents, or to be subjects of rationaljustification, agents need to have conceptions of their good. Delibera-tions about justice or the right must have starting points; for nonperfec-tionist liberals, these are found in individuals' conceptions of the goodthat must be arrived at in some other way. Agents are to be left to de-velop their accounts of the good on their own, based on their own prefer-ences and values, as they articulate these in terms of interests.

Thus liberalism can develop a univocal theory of justice or of theright while avoiding problematic homogenizing constraints in theorizingabout the good. As long as agents comply with what is generally recog-nized to be just and right, they can and should be addressed in the termscalled for by their personally formulated good.

But what of agents who because of intellectual limitations cannot de-velop, articulate, and communicate their own conceptions of the good? Ifliberalism insists on the conjunction of pluralism, subjectivism, and in-dependence, these agents would appear to be disregarded or worse. May

' 'A classic locus of this view is Brian Barry, Political Argument (New York: Humani-ties Press, 1965).

^The term is Derek Parfit's. Reasons and Persons (Oxford: Oxford University Press,1984), p. 493.

''Isaiah Berlin famously raised these concerns, among many others, in his critique ofpositive liberty. See Four Essays on Liberty (London: Oxford University Press, 1969).

'David Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986).^John Rawls, ̂ Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971).' T . M . Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University

Press, 1998).


ideas of the good be imposed on them? Should ideas of the good be im-posed on them? Or should considerations of their good be excluded alto-gether from the practices and processes through which citizens acknowl-edge and adjust to each other's personal ideas of the good?

That affirmative answers to these questions appear unpalatable indi-cates a recurrent difficulty for liberalism. The composite that promotesinclusion is compromised by an element that calls for those included toshape and express personal notions of the good. Whoever cannot do soapparently cannot command the recognition and respect that liberalismpurports to deliver to all.

Rawlsian liberalism is perhaps the most noteworthy case to illustratethe difficulty. In A Theory of Justice (1971) Rawls employed a "thin"rather than a "thick" theory of the good—the theory of primary goodsthat are assumed to be goods for people whatever else are goods forthem.'" Rawls thought primary goods could be justified indirectly, priorto and separately from justifying the myriad individual conceptions ofthe good. Critics queried, however, whether the theory of primary goodsrequires too extensive a commitment to a comprehensive conception ofthe good, one for which autonomy is substantive and central.

Rawls eventually moved to an amended account in Political Liberal-ism (1993), motivated by concern to avoid commitments to comprehen-sive conceptions of the good, even to the view that autonomy is a para-mount value." Rawls's avoidance of strong assumptions and parsimonyabout the good is fundamental to his proceduralism.'^ For the Rawls ofPolitical Liberalism, justice emerges from an overlapping consensus ofviews about the good. But to participate in this overlapping consensus,people must have personal conceptions of their good. Rawls has been criti-cized for limiting obligations of justice to fully cooperating participants

'°Rawls, A Theory of Justice, esp. pp. 90-95 and chap. VII. About the theory of pri-mary goods, Rawls writes: "[T]he assumption is that though men's rational plans do havedifferent final ends, they nevertheless all require for their execution certain primarygoods, natural and social. Plans differ since individual abilities, circumstances, and wantsdiffer; rational plans are adjusted to these contingencies. But whatever one's system of ends,primary goods are necessary means" (p. 93). On Rawls's view, rational life plans, tailoredto individual circumstances and desires, make up the good lives for people (p. 421).

' 'John Rawls, Political Liberalism (New York: Columbia University Press, 1993). Inhis Lectures on the History of Moral Philosophy (Cambridge, Mass.: Harvard UniversityPress, 2000), Rawls chose not to deal significantly with Greek philosophy, characterizinghis view as one in which the right is prior to the good and Greek philosophy as princi-pally concerned with theories of the good about which he had little to say. For a discus-sion of Rawls's rejection of comprehensive liberalism, see Ruth Anna Putnam, "Neither aBeast Nor a God," Social Theory and Practice 26 (2000): 177-200.

'^Martha Nussbaum notes this in Frontiers of Justice: Disability, Nationality, SpeciesMembership (Cambridge, Mass.: Harvard University Press, 2006), pp. 81-83.


in society;'^ here, we raise the additional criticism that he appears to limitparticipation in the development of the overlapping consensus to indi-viduals with fully independent personal conceptualizations of the good.

Although her approach to understanding the good is far richer thanRawls's, Martha Nussbaum's rejection of social contract theory and herdevelopment of the capabilities approach also assume that the good isplural, at least partly subjective, and arrived at independently, at least inpart. Nussbaum is committed to a kind of pluralism about the good; herlist of basic capabilities represents the uniform minimum requirements oflives that can be expected to flourish in many different ways.''' Her em-phasis is on what individuals can do, not their actual ways of function-ing; fuller accounts of the good for individuals depend on their circum-stances and the choices they make.'^ Individuals—at least those able tochoose—are free to refrain from exercising any of their capabilities.

Nussbaum also rejects dependent agency as an approach to incorpo-rating people with intellectual disabilities into the process of social con-tracting. She contends that relying on trustees for dependent agents torepresent their interests in social contracting requires assuming that theindependent agents who act as trustees are benevolent and consequentlyable and willing to care about the interests of those they represent. Butthis violates Rawlsian parsimony by attributing to at least some inde-pendent agents—who are subjects of justice in their own right—a con-ception of their own good that includes their being benevolent.' Shesays that having independent agents act as trustees for dependent agents"would require them to know that they do have benevolence and howstrong it is."'^ This argument, we contend, confuses the motivation ofthose representing dependent agents with the conception of the good of thedependent agents themselves. And so we will offer an account of howconceptions of the good can he articulated for dependent agents that doesnot depend on benevolent motivations, although we will also recognize theimportance of caring relationships in guardianship as a practical matter.

With respect to dependent individuals, Nussbaum argues that portray-

'^Nussbaum, Frontiers of Justice, p. 33.'"ibid., p. 70: "The capabilities are then presented as the source of political principles

for a liberal pluralistic society; they are set in the context of a type of political liberalismthat makes them specifically political goals and presents them in a manner free of anymetaphysical grounding."

Ibid., pp. 79-80: "If we insist that the appropriate political goal is capability and notfunctioning, we protect pluralism here again ... Where health is concerned, advocates of acapabilities approach differ about whether the appropriate goal is capability or function-ing. My own view is that people should be given ample opportunities to lead a healthylifestyle, but the choice should be left up to them ..."

' % d . , pp. 136-37.'^Nussbaum, Frontiers of Justice, p. 137.


ing them as needing other people to be the agents for articulating theirgood misconceives people with mental disabilities as incapable of havingideas of the good of their own.'^ While we agree with Nussbaum that thecapacities of all people need to be understood adequately, the view wedevelop objects to over-valorizing independence for any agent. Instead,we think interactive models of agency should be employed in construct-ing individualized accounts of the good for people. Of course, the degreeof an individual's (in)dependence influences the details of the models'application, and so we propose some considerations that influence themodels' use.'^ Before turning to this argument, however, it will be help-ful to provide a brief description of agency in relation to individuals withlifelong intellectual disabilities.

People with Lifelong Intellectual Disahilities

The diversity of capacities and interests among people with lifelong in-tellectual impairments is remarkable. Adults with intellectual disabilitiesoften hold jobs, live more or less independently, and enjoy recreationalopportunities.^" Some are married and have children.^' Some adults withintellectual disabilities who are not capable of working on their own maymeet high performance standards in structured or collaborative situations.Any account of theorizing about their good must begin with this diver-sity, as well as with the observation that there is no obvious, hard divid-ing line between people with, and people without, "mental retardation."^^

'^Nussbaum, Frontiers of Justice, p. 138: "Rather than recognizing that reciprocityhas many forms in this world, the trustee solution retains the Kantian split between therational/reasonable person and everything else in nature; only people with Kantian pow-ers in their full-fledged 'normal' form can be fully included, and party to the social con-tract, even though people with Down syndrome, for example, might actually be perfectlycapable of performing many functions of citizenship on their own."

"There are also limiting cases of people who lack sufficient subjective psychologicalcapacities to serve as a basis for modeling their conceptions of the good. We return to thispoint below.

^"Clifford J. Drew and Michael L. Hardman, Mental Retardation: A Lifespan Approachto People with Intellectual Disabilities, 8th ed. (Upper Saddle River, N.J.: Prentice Hall2004).

^'See Alexander J. Tymchuk, "Family Life: Experiences of People with Mild Cogni-tive Limitations," in Alexander J. Tymchuk, K. Charlie Lakin, and Ruth Luckasson(eds.). The Forgotten Generation: The Status and Challenges of Adults with Mild Cogni-tive Limitations (Baltimore: Paul H. Brookes Publishing Co., 2001), pp. 249-74.

"Mental retardation" is defined clinically in terms of intellectual limitations andmaladaptive behavior, manifested before adulthood (Drew and Hardman, Mental Retar-dation, pp. 18-19). There are notorious difficulties in measuring both IQ and skills insocial adaptation. Current work on mental retardation recognizes the extent to which it isa social concept (p. 19).


A particularly important caution is that the imagery of childhood fre-quently used to characterize people with lifelong intellectual impairmentsis misplaced. Language such as "developmentally delayed" or "mentallyretarded"—language now regarded as highly problematic, a judgment weshare—suggests people with congenital intellectual disabilities maturealong a trajectory that is common for all persons, albeit more slowly.Classifications in terms of mental age ("a mental age of 6") suggest per-petual childhood. Such imagery may support the idea that decision-makingfor adults with lifelong intellectual disabilities should be analogized to de-cision-making for children. Yet this analogy is seriously misleading atbest.'̂ ^ Adults with cognitive disabilities are not just larger children, sus-pended Peter Pan-like in states of arrested development. They are adults,who happen to be persons with intellectual impairments.

Nevertheless, several issues in decision-making that may arise whenpeople have intellectual impairments are relevant to theorizing about theirgood. People with intellectual disabilities may have difficulty in planningahead and in pursuing developed plans.'̂ '' In addition to limitations in theo-retical reasoning, practical reasoning and communicating also may be af-fected. Problems in social adaptation often are associated with "mentalretardation."^^ Social isolation, difficulties in establishing friendships orsexual relationships, and gullibility and naivete exacerbated by the desireto please or to have friends are noteworthy issues for people with intellec-tual impairments.^^ Such adaptive difficulties—in planning, in formingattachments, and in making judgments about trustworthiness^^—posepractical concerns for the models of interactive decision-making that wedevelop below and have been taken to justify modes of paternalistic pro-tection. These adaptive difficulties have been thought as well to undermineindividually subjective conceptions of their good on a theoretical level:Nussbaum, for example, rejects dependent agency and argues instead that

"ibid., p. 282.^"ibid., p. 39.^'ibid., p. 29.^^Lynda Crane, Mental Retardation: A Community Integration Approach (Belmont,

Cal: Wadsworth Publishing, 2002), p. 138. People with intellectual impainnents are espe-cially vulnerable to sexual abuse, experiencing rates of sexual assault that are four times thenational average (Drew and Hardman, Mental Retardation, p. 295). Robert B. Edgerton,The Cloak of Competence (Berkeley: tJniversity of California Press, 1993), provides arichly descriptive study of the dependency on benefactors evidenced by many formerlyinstitutionalized adults with cognitive disabilities. For a poignant story of the sexual abuseof a teenager with intellectual disabilities and the subsequent trial of those accused of vic-timizing her, see Bernard Lefkowitz, Our Guys (New York: Vintage Books, 1997).

^^See Russell Hardin, Trust and Trustworthiness (New York: Russell Sage Founda-tion, 2002). Hardin argues that people assess trustworthiness by success in repeat encoun-ters. People with limited capacities for theoretical reason may have limited abilities toassess trustworthiness in this way.


the good for people with lifelong intellectual disabilities is objective,namely, having basic levels of key capabilities enabled for them.

Understanding Dependent Agency

Dependent agency, as we understand it, involves reciprocal relationshipsbetween the dependent agent and others. The idea of such incompleteagency is not unfamiliar. Recent discussions in the cognitive science lit-erature have considered the concept of "wide" agency—the idea thatagency is not confined to the individual brain—arguing for example thattools are part of our cognitive processes.^^ Andrew Clark and DavidChalmers use the example of a person with Alzheimer's disease relyingon a notepad to record information forgotten too easily; they contend thatthe notebook should be regarded as part of the individual's cognitiveprocessing.^' Metaphysical accounts of the self have moved from thelevel of the individual to consider both supra- and intra-individual possi-bilities.^" And accounts of identity draw on social as well as individual-ized scripts.^' It is not odd, therefore, to think that at least some people,and perhaps very many people, engage in supported self-determination.Comparatively few, if any, self-determine without relying on anyone oranything else. More is at issue in drawing the line between dependentand independent conceptualizations of the good than sheer self-reliance.

Of course, accounts of autonomy that emphasize full independencecontinue to appear in the political philosophy literature. John Chhstman'saccount of the role of autonomy in the justification of political principles inthe Stanford Encyclopedia of Philosophy, to take one example, deploys aconception of autonomy that is linked to self-reflectiveness and self-identification, standards it may be hard to see how people with limitedcognitive capacities can meet. This conception of autonomy, "viewed hereas the capacity to reflect and endorse one's values, character, and commit-ments," fails to account for the possibility of variance.^^ Christman's

^''See, e.g., Daniel Dennett, Kinds of Minds (New York: Basic Books, 1996), pp, 134-35. For a criticism of transcranial cognition, see Fred Adams and Ken Aizawa, "TheBounds of Cognition," Philosophical Psychology 14 (2001): 43-64. Their criticism restsprimarily on the conceptual question of what we should call "cognition," an issue that isirrelevant to our concerns here.

^'Andrew Clark and David Chalmers, "The Extended Mmi," Analysis 58 (1998): 7-19.•'"See, e.g., Carol Rovane, The Bounds of Agency: An Essay in Revisionary Metaphys-

ics (Princeton: Princeton University Press, 1998),"E.g., Kwame Anthony Appiah, The Eihics of Identity (Princeton: Princeton Univer-

sity Press, 2005),John Christman, "Autonomy in Moral and Political Philosophy," Stanford Encyclope-

dia of Philosophy, ed, Edward ZaJta (2003 edition), available at http://plato.stanford.eduyarchives/fall2003/entries/autonomy-moral/ (accessed July 2006),

33


interest is exploring the role of autonomy in the justification of politicalprinciples. He holds that agents' ability to endorse political principles self-reflectively is central to proceduralist accounts of political justification. "In her discussion of autonomy and the underiying metaphysics of agency,also in the Stanford Encyclopedia, Sarah Buss appears to deny thepossibility of dependent agency:

An agent is one who acts. In order to act, one must initiate one's action. And one cannotinitiate one's action without exercising one's power to do so. Since nothing and no one hasthe power to act except the agent herself, she alone is entitled to exercise this power, if sheis entitled to act. This means that insofar as someone is an agent—that is, insofar as she isone who acts—she is correct to regard her own commitments to acting, her own judgmentsand decisions about how she should act, as authoritative. Indeed, if she were to challengethe authority that is an essential feature of her judgments and decisions, then they wouldcease to be her own practical conclusions. Their power to move her would cease to be amanifestation of her power to move herself; it would not be the power of her own agency.

On the legal understanding of independent agency, adults are presumedcompetent, unless there is reason to believe otherwise; and competentadults act as independent decision-makers relying on their own con-ceptions of the good. They are afforded personal discretion about the valueof sexual function, reproduction, avoiding discomfort and pain, or sacrific-ing in the shorter term for an expected longer life. When the stakes arehigh and decisions are irreversible, and when a choice seems unusual oreven perverse, commentators suggest more careful attention to whethercompetency has been maintained and independent decision-making is thusappropriate.^^ If a patient is competent, however, different conceptions ofthe good are to be respected and the patient is to be consulted as to theseconceptions on her own—unless, to be sure, she expresses the desire to

"Christman writes: "This view can be called 'proceduralist' because it demands thatthe procedure by which a person comes to identify a desire (or trait) as her own is what iscrucial in the determination of its authenticity and hence autonomy. This conception ofautonomy is adopted, according to its defenders, because doing so is the only way toensure that autonomy is neutral toward all conceptions of value and the good thatresponsible adults may come to internalize" (ibid.).

'"Sarah Buss, "Personal Autonomy," Stanford Encyclopedia of Philosophy, ed. EdwardZalta (2002 edition), available at http://plato.stanford.edu/archives/win2002/entries/personal-autonomy (accessed July 2006).

"See, e.g., Dan W. Brock, Life and Death: Philosophical Essays in Biomedical Eth-ics (Cambridge: Cambridge University Press, 1993), p. 42: "The level of decision-makingincapacity that should be required for a fmding of incompetence properly varies depend-ing on the decision in question. There is no single proper level of decision-making capac-ity that should be required for all treatment decisions. This is simply a consequence of thefact that what is a reasonable balance between patient self-determination and well-beingin setting that level will depend in part on the consequences of the patient's choice for hiswell-being." See also Allen E. Buchanan and Dan W. Brock, Deciding for Others: TheEthics of Surrogate Decision Making (Cambridge: Cambridge University Press, 1989).


incorporate others' advice into the decision-making.Consider by contrast someone with significant intellectual impair-

ments, such as Eva Kittay's daughter Sesha. As she has been portrayed,''^Sesha cannot express her experiences and her preferences in words. Thedifficulty is not simply that she cannot speak; as far as those who describeher apparently can tell, she cannot conceptualize what she enjoys. Nor canshe understand options that might be available to her or the means thatmight be needed to pursue these options.

It does not follow from these intellectual impairments, however, thatshe cannot have a subjectivized good. She can experience, as it were,"from the inside." Judging from her expressions and from her behavior, itis related, she experiences intense pleasure in some kinds of music. Andshe enjoys the presence of some people, but not others. To realize hergood, it is insufficient to enable at least minimum functionings for her inaccord with Nussbaum's list of capabilities." At least according to pub-lished descriptions, some capabilities matter more for Sesha than others,and sometimes with an intensity that these same capabilities might notmatter to many other people, with or without intellectual impainnents.

For an articulated account of her good, however, Sesha must dependon the reasoning and communication skills of others. Others mustarticulate a framework that reflects her observed responses and identifyachievements that are possible. Others must choose strategies that willbest realize her personalized good. Sesha cannot, for example, considerwhether a decision to move her out of her family's home will in thelonger run further her pleasurable experiences. But her expressed pleasuresat affiliation—to the extent that they are epistemologically available^^—

See Eva Feder Kittay, Love's Labor: Essays on Women, Equality and Dependency(New York: Routledge, 1999); and "At the Margins of Moral Personhood," Ethics 116(2005): 100-33, esp. this description on p. 123: "Contrast these [Nazi doctors] with anindividual whose rational capacities are difficult to determine because she lacks speechbut who has the capacity to enjoy life, to share her joy through her smiles and laughter, toembrace those who show her love and care, and to bring joy to all whose lives shetouches—an individual who, through her warmth, her serene and harmonious spirit, andher infectious love of life enriches the lives of others and who has never acted maliciouslyor tried to harm anyone. Whether or not she would know what it means to determine herown good may be in doubt, but the good she brings into the world is not." Notice how theindependence condition functions in this description of someone who is incapable ofdetermining her own conception of the good, and then seen in terms not of her good butof the good she brings into the world.

'^Nussbaum recognizes this point {Frontiers of Justice, p. 191).'*We recognize the significant epistemological difficulties here. But these difficulties

should not bar efforts to ascertain, to the extent possible, the experiences and preferences ofpeople with profound intellectual disabilities. There are of course limiting cases here; whenimpairments become so profound that people lack the capacities for experiencing at all,subjectivist accounts of the good for them cannot be developed. On the view—which weaccept—that subjective experiencing is necessary for someone to have a good, people in


will be core to the choice of strategies about where she aiight live. Thisis the interaction of dependent agency.

There are important theoretical and practical issues to resolve inadopting an interactive dependent agency approach. We take up sometheoretical issues at length, and one practical difficulty more briefly. Atthe theoretical level, if others are involved to a significant extent in theformulation of someone's conception of the good, to what extent can thatconception be considered that person's own, rather than an objectivestandard imposed from outside? How, moreover, can a formulation of thegood articulated by others for a subject be considered subjective? As apractical matter, how can some people assist others in formulating theirpersonal ideas of the good without the dependent individuals being madevulnerable to exploitation?

Individual Scripting

As to whether conceptions of the good for dependent agents can be con-sidered their own, independence should not be confused with individualscripting. For a conception of the good to be individually scripted, itmust be tailored to the individual in a way that reflects the individual'ssubjective experiences and personal characteristics. It will also reflectsocial contexts and scripts, personalized to the individual. But in fashion-ing a conception of the good that is expressive of an individual, articula-tion by the individual herself is not required.

Individual scripting is shaped by attention to the individual's responses.Just as an articulate individual shaping her own scripting of her goodwould note her own responses, so would she attend to the responses ofanyone whose scripting she was assisting to shape. Social roles affect con-ceptions of the good for individuals with intellectual impairments, just asthey do for people without such impairments. For example, this may be sofor people without—and for people with—intellectual impairments whoidentify with a religion's associated social script. Refusal of blood transfu-sions may be important to the maintenance of core familial and communityties for people with certain religious affiliations. A person with intellectual

persistent vegetative states do not have a good. People who have very minimal and disor-ganized cognitive functioning also may not have sufficient subjective experiences fromwhich to develop a meaningful account of their conceptions of the good. Attributions ofpreferences by family and friends—who believe, without evidence, that a person in a persis-tent vegetative state is responsive—are not conceptualizations of that person's good. Theyare either fantasies about—or the attribution of a set of nonsubjective values to—the indi-vidual in question. The case of Terri Schiavo (a brain-damaged woman who died in Floridain 2005 after becoming the centerpiece of a national right-to-die battle) is an instructive andhighly controversial example.


impairments need not understand theology to know how family andfriends react to the prospect of certain medical interventions and also knowthat the reason lies in the religious affiliation they share.

Rawls understood that the idealized agents he contemplated as sub-jects of justice would recognize the possibility that in life they might en-counter periods of prolonged dependency. Noting these risks of depend-ency over the life cycle, Rawls hypothesized that choosers of justicewould seek to institutionalize modes for protecting themselves in sucheventualities.^' Within the framework of nonideal justice, he contended,parties deliberating about justice would authorize others to act on theirbehalf to the extent necessary to supplement failing capacities to act ra-tionally for their own good.

It would be odd for a theory like Rawls's that gives priority to libertyto adopt a device with the potential to expose individuals (even and espe-cially intellectually impaired ones) to paternalistic imposition of a possi-bly alien view of the good on them.''° For formerly competent adults—that is, for those whom Rawls thinks would be provided for by the ideal-ized agents in the original position—the standard of "precedent auton-omy" now guards against this result: decision-makers are expected tofollow the patient's prior directives and, if none exist,'*' to reconstructwhat such directives might have been from knowledge of the person'searlier preferences."*^ Thus, nondisabled people can provide that theirown ideas of the good will continue to operate as self-determining incase they become intellectually disabled.

Concems about misplaced trust and abuse of people with intellectualdisabilities are widespread, whether the disabilities are lifelong or of recentorigin.''̂ On some views about precedent autonomy, however, people with

"Rawls, A Theory of Justice, pp, 218-19,''"Rebecca Dresser, among others, has voiced the other side of this criticism—that we

should reject precedent autonomy and turn instead to the best-interests standard for adultswho have lost cognitive capacity. See "Precommitment: A Misguided Strategy for Secur-ing Death With Dignity," Symposium on Precommitment Theory, Bioethics, and Consti-tutional Law, Texas Law Review 81 (2003): 1823-47; "Missing Persons: Legal Percep-tions of Incompetent Patients," Rutgers Law Review 46 (1994): 609-719; "AutonomyRevisited: The Limits of Anticipatory Choices," in Robert H, Binstock, Stephen G, Post,and Peter J, Whitehouse (eds,). Dementia and Aging: Ethics, Values, and Policy Choices(Baltimore: Johns Hopkins University Press, 1992), pp, 71-85; "Advance Directives, Self-Determination, and Personal Identity," in Chris Hackler, Ray Moseley, and Dorothy E,Vawter (eds,). Advance Directives in Medicine (New York: Praeger Publishers, 1989), pp,155-70; "Life, Death, and Incompetent Patients: Conceptual Infirmities and Hidden Valuesin the Law," Arizona Law Review 28 (1986): 373-405,

•"See, e,g,, Buchanan and Brock, Deciding for Others."•̂ New Jersey courts explicitly and appropriately term this "substituted judgment" a

"subjective" standard. See, e,g,. In reJobes,5\20 A,2d 133 (N,J, 1986),^See, e,g,, Arlene Luu and Brian Liang, "Clinical Case Management: A Strategy to


lifelong intellectual disabilities are thought to differ from people with later-arising disabilities because in the latter case conceptions of the good de-veloped during competence may be available for use in decision-making,where in the former case no such antecedent touchstone is available. Thesame personalized self-guarding thus would not be available through thisroute for people with lifelong intellectual disabilities.

When dependent individuals' prior preferences are unknown, how-ever, decision-making can turn to constructing accounts of current pref-erences and interests. This reconstructive strategy recognizes that prefer-ences may be supported by—or undercut by—reasons.'*^ Reasons simi-larly may support the preferences of intellectually impaired people. Iden-tifying their likely reasons gives their preferences force in decision-making, despite their inability to articulate the reasons themselves. Fam-ily and community ties may be reasons to prefer not being transfused,even though the individual cannot articulate the theological reasons be-hind the family and community reasons. A related reconstructive effortdistinguishes episodic expressions or reactions from those more closelytied to senses of self-worth. Agnieszka Jaworska describes this strategyin explaining how people with reduced cognitive capacities remain capableof valuing."*^ Both strategies are aimed at portraying subjective state(s) ofthe individual.

Such a subjectivist approach respects liberty—directly, if the referenceis to the individual's choices, and indirectly if the reference is to experi-enced pleasures, preferences, or values that may or may not be subject tothe individual's choices. It thus complies—both for the temporarily and forthe lifelong intellectually disabled—with the Rawlsian view that the prior-ity of liberty identified as a matter of ideal justice should carry over intononideal theory as well.''̂ The need for assistance in scripting the good, we

Coordinate Detection, Reporting, and Prosecution of Elder Abuse," Cornell Journal ofLaw and Public Policy 15 (2005): 165-96,

''^See John K, Davis, "The Concept of Precedent Autonomy," Bioethics 16 (2002):114-33, Davis's further claim, that preferences include and so may be individuated by thereasons that support them, is not required for our purposes here. All we need is that pref-erences may be supported by reasons and undermined by changes in states of affairs re-quired by the reasons. For example, a preference of a Witness not to have a transfusionon the basis of church teachings would be undercut if there were a change in church doc-trine. Parallel points to Davis's about reasons and preferences could be made in terms ofdesires, choices, or values,

""^Agnieszka Jaworska, "Respecting the Margins of Agency: Alzheimer's Patients andthe Capacity to Value," Philosophy and Public Affairs 28 (1999): 105-38,

"•̂ As Rawls explains it, "nonideal" theory involves the achievement of justice in cir-cumstances of imperfect justice. There are natural exigencies that depart from the socialideal, such as periods of dependency due to illness; idealized agents in the original posi-tion would want to make provision for such circumstances. There are also social injus-tices, such as failures to recognize fair equality of opportunity, Rawls groups these two


emphasize, does not imply that there is no role for liberty in the lives ofthose with cognitive disabilities. To take one important example, StanleyHerr and the other participants in the Yale Declaration on the Rights of theIntellectually Disabled offer a recent, extensive explication of liberty forthe intellectually impaired.'*'' Experiencing trajectories that fit preferences,reward expectations, and respect the concrete features of their lives mattersto them, even if the choosing is not a process they realize independently.

To the extent that people with intellectual disabilities have recognizablepreferences, and interests that can be generated from these preferences,other people can collaborate with them to construct individualized, subjec-tive conceptions of the good. Counselors, consultants, job coaches, familyand friends, and court-appointed trustees and guardians may do this, par-tially or completely, somewhat as surrogates do for formerly competentindividuals. A difference is that there will be no standard documents ornarratives such as those written or spoken by formerly competent peopleto rely on in the process. (Formal statements are infrequent for formerlycompetent patients in health care decision-making, as well.) There mayalso be nonverbal expressions of preference: drawing or pointing at pic-tures, making sounds, jumping up and down, laughing or hugging,'*^

The collaborator's role is to attend to these expressions, to fit them to-gether into an account of ongoing preferences that constitutes a personal-ized idea of the good, and to work out how to realize this good under exist-ing circumstances. Dependent agents need help with writing such scriptsfor the future, as planning over the longer term is likely to be a particularlydifficult process for persons with intellectual disabilities. As with peoplewho are not disabled, writing the scripts of identity is not an individual buta social process.'*' But a trusted collaborator may interact more centrallywhen the personalized good is that of an intellectually disabled person.

Parenthetically, Jeff McMahan has pointed out that this account ofdependent agency may also allow individualized, subjective conceptionsof their good to be constructed for nonhuman animals. There is nothingdisturbing or threatening about such a result. Some nonhuman animalsexpress preferences and assume roles in social scripts, from which we donot hesitate to extrapolate ideas of the good that we attribute to them. For

kinds of departures from the ideal together in his sketch of the principles to govern non-ideal theory: first principle liberties take precedence, and more important liberties takeprecedence over less important ones, Rawls, A Theory of Justice, pp, 218-19,

•"Stanley S, Herr, Lawrence O, Gostin, and Harold Hongiu Koh (eds,). The HumanRights of People with Intellectual Disabilities: Different but Equal (Oxford: Oxford Uni-versity Press, 2003),

•"̂ These are the kinds of evidence used by an autistic and intellectually disabled manto argue that his job at Chuck E, Cheese was very important to him. See EEOC v, CECEntertainment, Inc., 10 Am Disabilities Cas, (BNA) 1593 (W,D, Wis, 2000),

"'See Appiah, The Ethics of Identity.


example, we know elephants to be intensely social animals who, guidedby a matriarch, bury their dead and revisit the graves year after year. Weknow that an indoor cat's choices are very different from an outdoorcat's, and that feline siblings can have different personalities, as ex-pressed by their different patterns of behavior, as well. Nor is it implau-sible to explain such complex and coherent behaviors as purposeful andas informed by what the animal prefers or, even, values. To do so is toconstrue some animals as having understandings of their good that makethem in this respect the kinds of entities to which justice could be owed.Of course, this is not to say that they are owed justice. The approach weintroduce here admits some animals as meeting a necessary condition forbeing owed justice, but more would need to be said to make out a suffi-cient condition for this claim.

Trusteeship

In A Theory of Justice, as we have noted, Rawls recognized that peoplechoosing principles of justice would also want to implement mechanismsto continue to further their good in case they no longer were able to ar-ticulate it for themselves.̂ ** Although he envisioned these mechanisms asconstrained by principles and structures of ideal justice, he did not de-velop these points. We have argued elsewhere that justice should be en-visioned as accreting through a process of building trust rather than asthe product of a bargain for mutual advantage, and that people who can-not function as independent bargainers can participate in such trust-building processes.^' We have thus questioned a sharp distinction betweenideal and partial compliance theory in the ongoing building of justice. Inthis article, our goal has been to explain how people with lifelong intel-lectual disabilities are not rendered unable to participate because of theirinability to construct their conceptions of the good fully independently.

Explaining how dependent agents can construct individual and subjec-tivized accounts of their good solves this theoretical problem for inclusion,but under nonideai conditions where justice is incomplete, the practicalproblem of guarding against exploitation remains. We have argued abovethat Nussbaum's rejection of the trusteeship model as a solution to in-cluding people with disabilities in social contract theory confuses be-nevolent motivation with the ability to participate in articulating the con-ception of another's good. We have explained how conceptions of theirgood can be developed that allow people with intellectual disabilities to

s, A Theory of Justice, pp. 218-19."Anita Silvers and Leslie P. Francis, "Justice Through Trust: Resolving the Outlier

Problem in Social Contract Theory," Ethics 116 (2005): 40-77.


be represented in their own right as a theoretical matter. Nussbaum doesraise a practical problem about trusteeship and guardianship, however. In acontext of partial compliance, where justice must be pursued in a contextfraught with injustice, safeguards against exploitation by those furtheringthe good of others are advisable to facilitate justice. To be sure, if trusteeshave "encapsulated" interests in the interests of their beneficiaries, theywill represent the interests of beneficiaries and at the same time be actingself-interestedly. But the risk that interests will diverge remains.'^

Here, we can point to several possible aspects of a solution. Initially,following Rawls, we note that it is in everyone's interest to establish mech-anisms for enabling dependent agents to maintain conceptions of theirgood, whether on a permanent or a temporary basis, A second observation,again following Rawls, is that these mechanisms are established subject tothe constraints of justice. A further step, now departing from Rawls, re-quires questioning the theoretical separation between ideal and partialcompliance theory—a separation Rawls himself sometimes conflated.

Developing and expanding justice in a context of injustice is a processof working back and forth between the constraints of principles and theexigencies of nonideal circumstances. The process can constrain and testideas of the good provided on behalf of dependent agents and proposedto be their ideas. As Rawls explicitly says, Rawlsian agents would wantto establish such mechanisms for protecting themselves in periods ofnatural dependency. We can look to the law to see how some suchmechanisms are devised. Trustees in the form of guardians may be ap-pointed because they have the deepest caring relationships with the bene-ficiaries and thus may be expected to know them well and to care aboutthem: spouses or partners," adult children, parents, adult siblings,^"grandparents,^^ other relatives,̂ "" and in some cases friends^^ or personswho have exhibited special care and concem for the person and are fa-miliar with the person's own values.^^ When decisions involving benefi-ciaries seem to depart from expectations about what they would havewanted, or about what people in general typically want or need, devices

'•̂ See Hardin, Trust and Trustworthiness.'Maine adds a provision here for domestic partners: "An adult who shares an emo-

tional, physical and financial relationship with the patient similar to that of a spouse," 18-A Me, Rev, Stat, § 5-805(B)(l-A) (2003).

'''This is the ordered list in the Uniform Health Care Decisions Act § 5(b) (1994)."New Mexico Stat, Ann. § 24-7A-5(B)(6) (2004),'*See, e,g,, Utah Code Ann, § 76-2-11054(2)(b)(vi) (2003)."E.g., Ariz. Rev, Stat, § 36-3231(A)(6) (2004); D,C, Code § 2l-2210(a)(5B) (2004);

Fla, Stat, § 394,4598(5)(e) (2004), The District of Columbia also provides for surrogatedecision-making by the religious superior of a priest or person in religious orders- D CCode § 2l-2210(a)(5A) (2004),

'^Uniform Health Care Decisions Act § 5(c) (1994),


such as a heightened evidentiary standard are available to test a trustee'srecommendation. This is the function of the "clear and convincing evi-dence standard" in health care decision-making. When concems areraised about actual conflicts of interest on the part of a trustee—such aseconomic interests—additional devices such as a shift in the burden ofproof may also be employed, requiring the trustee to defend her contin-ued functioning on behalf of the beneficiary.

To be sure, exclusive reliance on objective standards of the goodwould undercut the conunitments to subjectivism and perhaps also plu-ralism with respect to the good that we have defended. But the trustee'sreliability need not be assessed simply by whether the trustee makes theright decision, understood in terms of an objective theory of the good.Reassurance should be sought in infomiation about the dependent agentherself as a basis for correction, in heightened evidentiary standards thatthe trustee must meet, or in shifts in the burden of proof for the trustee todefend recommendations, or even her continued involvement in decision-making for the beneficiary. Subjectivity is thus tested but not supplantedby objective interests in the development of the good for dependent agents.

Illustrating Our Account

The view that dependent agents cannot have their own conceptions of thegood—conceptions that are subjective and individualized—lies behindfailures of inclusiveness that are both theoretical and practical. On thetheoretical level, we have explained how dependent agents can have pic-tures of their good that enable them to participate as subjects of justice.The construction of principles of justice does not culminate in a singlefounding event achieved through an abstract social contract, with subse-quent refinements focused on bringing institutions into compliance withthe static principles. Rather, it is an ongoing enterprise of developingpractices that promote respect, trust, and commitment. The principlesthat emerge in clearer form as these practices develop further refine whatjustice is in given contexts.^'

Although the basic outlines of justice may be apparent—achieving aminimally decent life for everyone—what this means, how the outlinesare to be filled in, and how the result is to be achieved requires ongoingspecification through negotiation and cooperation. Trustees can work

' ' in taking this view that justice requires ongoing development and specification, wejoin writers such as Allen Buchanan, Justice, Legitimacy, and Self Determination: MoralFoundations for International Law (Oxford: Oxford University Press, 2004), and Madi-son Powers and Ruth Faden, Social Justice: The Moral Foundations of Public Health andHealth Policy (Oxford: Oxford University Press, 2006).


with dependent agents in that process, thus enabling everyone's ideas ofthe good to exert influence in the project of formulating justice. This ac-count is consistent with the position taken by the United Nations WorldProgramme of Action Concerning Disabled Persons: "As disabled per-sons have equal rights, they also have equal obligations. It is their duty totake part in the building of society. Societies must raise the level of ex-pectation as far as disabled persons are concerned, and in so doing mobi-lize their full resources for social change."*"

The United Nations Programme continues by asserting the importanceof inclusiveness for adults with disabilities in the practical social contextsof living and working. This is a matter not of beneficence, but of recipro-cal obligation. In such practical contexts, adults with lifelong intellectualdisabilities can be seen as working out their subjective conceptions of thegood. In this, we shall argue briefly, dependent agents and ostensiblyindependent agents resemble each other to a remarkable extent.

Competent agents are free to make choices about their housing ortheir jobs that may—at least on the views of others—not be for the best.Intervention may be justified, but only to be sure that apparently unwisechoices really do reflect the agents' understanding of their good. This isthe "soft" paternalist position of liberals who follow Mill: that interven-tion in the decisions of apparently competent persons is justified to en-sure that they are not making mistakes about the facts, or decisions thatare hurried, or decisions that do not reflect their good because of collec-tive action problems.*'

But does similar liberty extend to adults with intellectual disabilitieswho, although their conceptions of the good are individually scripted andsubjective, have not arrived at these independently?*^ Our contention isthat liberty can and should. While departing from Nussbaum about view-ing the good of people with intellectual disabilities through a substan-tively standardized lens, we agree with her that liberty is especially ur-gent for people with intellectual disabilities, because "it is their freedomthat has been characteristically abridged through prejudice, lack of edu-cation, and lack of social support."" No different from fully competentagents, agents with intellectual disabilities face conflicts between theirindividually scripted conceptions of the good and what others thinkwould be best for them.

Consider housing. Adults with intellectual disabilities may prefer in-

Nations, World Programme of Action Concerning Disabled Persons, avail-able at http://www,un,org/esa/socdev/enable/diswpaOO.htm (accessed Feb. 4, 2006).

*'The classic locus of this view is Gerald Dworkin, "Paternalism," Monist 56 (1972)-64-84.

*^Nussbaum, Frontiers of Justice, pp. 221-22.^•'ibid,, p. 222,


dependence and its concomitant risks to the continued shelter of living athome, or they may prefer to stay with their parents until their parents nolonger are able to care for them. Which decision is part of the dependentagent's good is a matter of the circumstances and the agent's characteris-tics. Individualized and subjective conceptions of the good can functionin these decisions, even if the conceptions are arrived at in relations ofdependency. Living decisions must begin with the current experiences ofthe person with intellectual disabilities. Some will be more adventurous,some more fearful. Some will have attachments and skills that make go-ing out into the world easier; for others, less gregarious, forming attach-ments may be far more difficult.

Scripting the good must continue with efforts to understand the direc-tions in which the person can and wants to develop; some people willflourish by pushing themselves and taking risks but others will do betterin relative shelter and safety. The good will also depend on individualcircumstances; some will have parents or siblings that are able and wantto help care for them. Others will face circumstances in which these sup-port systems are fragile and likely to collapse, as with the death of agingparents.

Caring trustees such as parents or other family members may embraceidealizations of their family members with intellectual disabilities thatpromote overprotecting them because they are seen as more limited thanthey are or that neglect them by treating them as the more capable per-sons they wish they were. Guarding against such misaligned perceptionsis important. The processes must be dynamic, continuously shaped andcorrected by interaction with the person whose idea of the good is beingcreatively portrayed.*"*

Or consider work. Competent adults can choose jobs that are uncom-fortable, inconvenient, or risky—at least within the limits permitted bylaw. But even competent adults with disabilities have not fared well in thisrespect in the courts. The Equal Employment Opportunities Commissionpermits employers to deny a disabled person access to the workplace ifthe job puts the person at risk to himself. In the Echazabal decision, theUnited States Supreme Court held that Chevron could retract an offer ofa refinery job to a worker who tested positive for Hepatitis C, based onfear that exposure to refinery toxins might damage the worker's liver anddespite the worker's readiness to exempt Chevron from liability. ̂

^Consumer choice, autonomy, and control are the basic values of the independentliving movement. See http://www.ncil,org/about/ (accessed February 2, 2006).

^Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002). See also Anita Silvers, Mi-chael E. Waterstone, and Michael Ashley Stein, "Disability and Employment Discrimina-tion at the Rehnquist Court," Mississippi Law Journal 75 (2006): 945-74, for a detaileddiscussion of this case.


Can adults with intellectual impairments assess and take on job risks?Here, too, dependent agents can work out their conceptions of their goodin partnership. Job coaches and workplace structuring can help them per-form tasks in ways that meet their abilities and are satisfying for them.**The reminder that work can be satisfying—that, as the United NationsProgramme avers, what is "required is to focus on the ability, not on thedisability of disabled persons"*^ can draw on generalized interests to en-sure that the individualized capacities and preferences of persons withdisabilities are considered fully. On the other side, verifiable risks shouldbe tested against the benefit of the job for the individual. This is a proc-ess in which all workers engage, often interdependently.

When trustworthy representatives thus work to construct the good ofpersons with intellectual disabilities, they draw on social scripts, just asadults without disabilities draw on social scripts to develop their identi-ties within the frame of their own ideas of their good. "Leaving home" asan adult is a social script. Working "for pay"—the idea that work as-sumes dignity with remuneration—is a social script. So are job rolesthemselves: day care worker, shelf-stocker, or custodian. These scriptsgive meaning to lives and define the context of meaningfulness. But cru-cial for trustees who collaborate on conceptualizing the good with peoplewith cognitive disabilities is the challenge to craft entire new genres ofscripts that offer opportunities for "break-through" roles. Half a centuryago, for instance, it would have been thought sheer fantasy to assignanyone with Down syndrome a part where he or she needed to read,whereas today's scripts call for casting people with Down syndrome inthe roles of high school and community college graduates.

Generalizing to Us All

As many commentators have recognized, agency is not an all-or-nothingaffair. To some extent, we all formulate our conceptions of the good in-teractively. We talk with others, rely on their advice, and incorporatesocial scripts. Some parts of our conceptions of the good are arrived atfully independently, even secretly; others are not. Our conceptions of thegood are subjective and individually scripted largely, but not entirely, byourselves. The difference between the majority of people and the minor-ity of dependent agents is the extent of dependency, not the fact of it.

In light of this observation, it is worth asking why liberalism has had

**See Leslie Pickering Francis, "Employment and Intellectual Disability," Journal ofGender, Race & Justice 8 (2004): 299-326.

United Nations, World Programme of Action Concerning Disabled Persons, avail-able at http://www.un.org/esa/socdev/enable/diswpaOO.htm (accessed Feb. 4, 2006).


such an entrenched commitment not only to subjectivism and pluralism,but also to independence about the good. One reason is that the threeproperties have been seen as inextricably linked—that subjectivism andpluralism have seemed to entail independence. We have addressed thisconcern by demonstrating that conceptions of the good can be formulatedthat are individually and subjectively scripted, even though they are ar-ticulated through interaction with and dependence on others.

Nor is independence, as distinct from subjectivism or pluralism, pre-cisely the way adults without intellectual disabilities formulate their con-ceptions of the good. In formulating conceptions of the good, everyoneworks with social scripts: identities of work, class, religion, race or eth-nicity, and so on. We also are influenced by others: parents, friends,teachers, psychologists or counselors, coaches and mentors. Roommates,study groups, and campus organizations are critical to the experience ofAmerican college students—a cauldron in which the task of identity-formation and re-formation stews. Whether for apprentice plumbers,medical residents, or beginning college teachers, mentorship is critical tounderstanding both what to do and why to do it. Partners, spouses, andintimate friends participate in mutual definitions of their shared lives.The point here is not that any one of these shared enterprises should beprivileged; it is that good lives as we know them would not exist withoutsuch interactive frameworks.

Liberalism is right to recognize that advancing subjectivism and plu-ralism as ideals in formulating the good for individuals is critical to pro-tecting everybody against imposition and coercion. But independence isnot also required. The source of the confusion seems to be deeply norma-tive: the idealization of agency as insularly independent. That is, adultsare expected to possess personalized conceptions of their good that arenot only their own, but also independent of everyone else. On this ideali-zation, agents who do or must work with others in formulating their goodare thereby judged to be deficient as agents, or at least their formulationsof the good are judged deficient by being labeled as the products of de-pendency.

But it is hard to see a justification for this idealization. Is an achieve-ment arrived at individually thereby "better" than one arrived at coopera-tively? This would have to be a conceptual or a normative point, for theempirical claim that individual action will reliably accomplish highergoals more quickly is surely false, as even Hobbes recognized. Yet whysocial animals should prefer solitary, noninteractive processes or goals ishard to see.

To be sure, as Cass Sunstein argues, a fundamental liberal notion,embedded especially securely in U.S. tradition, is that individuals mustbe free to decide "who they are, what their values will be, and what those


values require."^^ Unsurprisingly, this idea of independence is invoked tobalance against the state's interest in cultivating univocal models of ra-tional decision-making, as well as in promulgating uniform acceptance ofvalues, that induce individuals to cede priority to societal interests or toselect ways of life that strengthen cooperative or communal action. (Asimilar notion of independence may be invoked in the name of personalliberty to balance the tension between individual and family interests.)But the relationship between social claims and claims of the individual isa different question from how claims of the individual based on her con-ception of the good are formulated in the first place.

With respect to the balance between social and individual interests,the independence of individuals without cognitive disabilities no moreinsulates them from all interventions by the state than either need orshould be the case for individuals with cognitive disabilities whose per-sonal idea of the good is constructed with involved assistance by otherpeople. There is a degree to which individuals fairly may be expected tomodify personal preferences, or alter their attitudes to whether their fac-tual beliefs are true, or habituate themselves to common patterns of relat-ing their preferences to facts, in the name of community interests or co-operative endeavors. But this occurs regardless of the extent of involve-ment by others in the individual's formulation of the good.

We surely do not suppose that persons without cognitive disabilitieswho vigorously consult parents, friends, teachers, psychologists or coun-selors, coaches or mentors in scripting their own aims take on, by doingso, a greater obligation to abandon their preferences for those of the groupor the state. That is to say, we do not hold individuals without cognitivedisabilities deficient in respect to liberty from state or group interventionjust because we can discern a high degree of other people's shaping intheir decision-making. The degree of liberty that adults without cognitivedisabilities are accorded depends not on whether they selected their aimsin isolation from or in concert with other people, but instead on the con-sequences of their pursuit of their aims for important public values. Inde-pendence in the political sense is a liberty question having to do with thedegree to which a person must defer to the state's practices and goals, notan insularity question having to do with idiosyncratic development of aperson's practices and goals. Dependence on others in articulating a con-ception of the good should not mean forgoing the liberty accorded to allother citizens.

Nor should individuals who are thus dependent be diminished by de-meaning and disregarding factual stereotypes, or be more constrained than

*'Cass Sunstein, "Preferences and Politics," Philosophy and Public Affairs 20 (1991)-3-34, p. 13.


any other minority group from resisting normative stereotypes that closeoff their opportunities. And in recognition of their liberty, individuals withcognitive disabilities should be no more or less vulnerable to best-interestcritiques of their personal preferences about the good than any other citi-zen. Indeed, we may owe such individuals especially careful attention sothat other people's ideas about their best interests are not given excessivelatitude to override personalized constructions of their own. And appreciat-ing their viewpoints on the good, as well as their cognitive diversity, surelycontributes to the pluralism that liberalism cherishes.

Liberal theory need not, therefore, run aground when confronted withpeople with lifelong intellectual disabilities. Nor need liberalism runaway from them. Subjective theories of the good can be constructed by,with, and for such dependent agents. These citizens need not be regardedas outliers with respect to participation in social contracting or other ap-proaches to political justification that require individuals to have theirown conceptions of the good, for people with intellectual disabilities dohave subjective and individual accounts of the good, albeit ones theyhave not constructed completely by themselves.

In this, too, they are not outliers but are like everyone else. Concep-tions of the good are socially scripted and interactively developed for allof us. These metaphysical facts about identity do not bring with them aloss of individuality or difference. To the contrary, understanding thatsubjective accounts can be achieved rather than precluded or marredthrough dependent agency enriches the way we think about the good.

Leslie Pickering FrancisDepartment of Philosophy and College of Law

University of [email protected]

Anita SilversDepartment of Philosophy

San Francisco State Universityasil vers @ sfsu.edu

Liberalism and Individually Scripted Ideas of the Good

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