The Educational Autonomy of Illiberal Religious Groups in ...

[Early Draft: Please do not quote without author’s permission]

The Educational Autonomy of
Illiberal Religious Groups in a Liberal State1

The scope of a religious group’s educational autonomy in a democratic state is one
facet of the larger question of how liberal polities should deal with illiberal communities
within their midst. (This is not to suggest that all religious communities are illiberal, but only
that the hardest questions vis-à-vis education arise in respect of illiberal religious
communities.) I believe the answer is best approached as follows.2 A liberal democracy’s
cornerstone is that governmental authority rests on citizen consent. But because it is
unrealistic to expect that each generation will establish a new constitution that remakes
government and in so doing reflects that generation’s actual consent, and for yet other
reasons,3 hypothetical consent is the most that can be expected. My approach for
determining the governing structure to which citizens hypothetically would consent builds
upon -- though deviates in some important respects from -- John Rawls’ framework in
Political Liberalism. It also draws upon important contributions from Will Kymlicka, Jeremy
Waldron, and Amartya Sen.

It may be useful to provide an overview of my conclusions before presenting the full
argument. My claim is that (1) foundational commitments require that liberal polities grant
significant autonomy to those illiberal groups that satisfy certain (relatively thin) criteria, but
that (2) the autonomy of such “eligible” illiberal groups is subject to two constraints. The
autonomy to which they are entitled includes the authority to educate their youth so as to
provide a fair opportunity for them to perpetuate themselves. Accommodating eligible
illiberal groups, subject to the two constraints, is an instantiation of liberal commitments, not
a compromise of liberal values.

Finally, I wish to make clear that my framework does not purport to provide a
comprehensive set of considerations that appropriately informs the scope of religious
communities’ educational autonomy in every liberal state. Longstanding compromises and
practices, past historical injustices, and what is practically necessary to maintain political
stability may be relevant factors in some circumstances. But the perspective provided by
political theory is important, even if not determinative. Among other things, the
understanding of normative considerations afforded by political theory allows an
appreciation of what (if any) costs are actually entailed when a polity elects for reasons of
pragmatism to give religious groups some measure of educational autonomy.

1 Mark D. Rosen, Professor, Chicago-Kent College of Law (United States). I can be contacted at
[email protected].
2 I first explored many of the ideas that follow in two previous works: The Outer Limits of Community Self-
Governance: A Liberal Theory, 84 Virginia Law Review 1053-1144 (1998), and “Illiberal” Societal Cultures,
Liberalism, and American Constitutionalism, 12 Journal of Contemporary Legal Issues 803-842 (2002).
3 See RANDY BARNETT, THE PRESUMPTION OF LIBERTY.

Rosen Educational Autonomy of Illiberal Religious Groups 2

I. The Continuing Relevance of Social Contractarian Approaches to Choosing Institutions

The approach I take to considering the question-at-hand falls under the social
contractarian rubric in the tradition of Rousseau, Locke, and Kant. Before proceeding, I feel
it important to respond to an argument recently put forth by Amartya Sen in his new book
The Idea of Justice. Sen purports to reject contactarianism and to instead champion what he
claims to be an alternative stream of non-contractarian enlightenment writers (which
includes Adam Smith, Condorcet, Wollstonecraft, Bentham, Mill and Marx), whom Sen
assimilates into what he calls a social choice theory-inspired approach to justice.4 A
response to Sen’s thoughtful critique consequently is necessary for one, as myself, who
continues to rely on contractarianism.

Sen’s book is a magnificent, incisive work that may prove to be as influential as
Rawls’ A Theory of Justice and Political Liberalism. Sen makes some absolutely crucial points.
His 400-plus page book is far too deep and wide to provide anything approaching an
adequate treatment here, but some of his arguments have direct relevance to the questions
addressed in this paper. For one, Sen rightly critiques contractarians’ tendency to equate
justice with the identification of a unique, “transcendentally” ideal set of governmental
institutions, arguing that any account of justice must take account of the actual “social
realizations” of institutional arrangements, which turn not only on institutions but on how
people in a given society actually behave.5 Moreover, Sen persuasively argues that rather
than focusing on perfect institutions to which citizens unanimously would assent, much can
be gained through a “comparativist” approach to justice that aims for improvement, for
example, the elimination or minimization of phenomena broadly recognized as injustices
such as famine and slavery. The argument I provide below will draw upon Sen’s
constructive criticisms at several junctures.

But Sen oversells the implications of his arguments vis-à-vis contractarianism.
Rather than slaying contractarianism,6 Sen’s barrages highlight ways in which
contractarianism should be reworked7 and, it seems to me, establishes as well that
contractarianism is an incomplete tool for determining what justice requires that accordingly
requires supplementation.8 Yet Sen’s approach does not displace the need for
contractarianism. Sen acknowledges the enduring significance of governmental institutions,9

4 See AMARTYA SEN, THE IDEA OF JUSTICE 86 (Harvard: 2009).
5 See SEN, at 68; 84-85.
6 See SEN, at 69-71. Moreover, virtually all of Sen’s firepower is directed at Rawls’ second principle of justice, which
concerns distributive justice. Sen (and others) convincingly disprove Rawls’ claim that reasonable people unanimously
would adopt the difference principle by identifying a set of plausible alternative principles. The analysis I undertake
concerns Rawls’ first principle of justice – the priority of liberty – with respect to which Sen is largely in agreement.
7 For example, there is no reason why contractarianism cannot take account of people’s actual behavior and the actual
consequences of governmental institutions. See SEN, at 68. Indeed, doing so would, it would seem, only strengthen
contractarianism. Similarly, Sen inveighs against contractarians’ tendency to neglect the wisdom that can come from
looking at the experiences of people outside the political community that is the subject of the social contract. See Sen,
at 70. But there is nothing inherent in contractarianism that demands such ethnocentricism and, once again, expanding
the range of considerations can only be expected to improve contractarianism.
8 For example, Sen convincingly argues that justice can impose obligations vis-à-vis matters that do not fall within the
jurisdiction of any governmental institutions. So, for example, one can speak of justice’s requirements in connection
with transnational and global phenomena without necessarily requiring the creation of transnational or global
institutions.
9 SEN, at 82.

Rosen Educational Autonomy of Illiberal Religious Groups 3

but his approach neither explains how governmental institutions should be chosen nor why
their exercise of power is legitimate. While Sen rightly inveighs against contractarians’
exclusive focus on institutions, a full theory of justice surely must guide the choice of
institutions and justify their exercise of power. Contractarianism does this: its foundational
assumption is that citizens’ consent legitimizes the choice of institutions and their exercise of
power, and this idea reflects a broad consensus in liberal states.

Indeed, when all is said and done, it’s not at all clear that Sen himself abandons
contractarianism. After all, the vehicle that transports readers to all Sen’s conclusions as to
what justice demands is public reason. But how and why does public reason impose duties?
Sen does not directly answer this question. One possibility is that the demands of justice are
somehow self-animating. This sounds quite natural law-like, and (at the very least) requires
justification that Sen does not supply. Another possibility is that Sen relies on unstated
contractarian assumptions, equating public reason’s conclusions with what people (or
reasonable people, at least) would agree to.

In any event, however Sen answers the question of why public reason’s conclusion
impose the duties of justice, in the end there may not be much (if any) gap between Sen’s
reliance on public reason and the hypothetical consent that Rawls (and I) invoke.

II. Kymlicka, Waldron’s Critique, and the Need for a Richer Framework

A. Kymlicka

Very shortly I shall come to the Rawlsian framework that fuels my main argument.
As a prelude, though, it will prove useful to quickly examine a powerful, elegant argument
put forth by Will Kymlicka in defense of protecting minority cultures that can readily be
extended to religious communities.10 Kymlicka’s argument turns on his understanding of
the role that “societal culture” plays in an individual’s life. He claims that societal culture
“provides its members with meaningful ways of life across the full range of human activities,
including social, educational, religious, recreational, and economic life, encompassing both
public and private spheres.”11 Cultures are “embodied in social life” by being “institutionally
embodied” in schools, the media, the economy, and government.12 This type of
embodiment accounts for the critical role that societal culture plays in shaping its members.13

According to Kymlicka, access to a societal cultural is a precondition to freedom.
“[F]reedom involves making choices amongst various options, and our societal culture not
only provides these options, but also makes them meaningful to us.”14 As a result, “[f]or
meaningful individual choice to be possible, individuals need . . . access to a societal culture.”15 This is
because “[p]eople make choices about the social practices around them, based on their
beliefs about the values of these practices . . . [a]nd to have a belief about the value of a

10 See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP 169-70 (1995).
11 KYMLICKA, supra note 10, at 76.
12 Id.
13 Id.
14 Id. at 83.
15 Id. at 84 (emphasis supplied).

Rosen Educational Autonomy of Illiberal Religious Groups 4

practice is, in the first instance, a matter of understanding the meanings attached to it by our
culture.”16

With this understanding of societal culture, Kymlicks goes on to argue that denying
persons access to their societal culture is unjust insofar as it violates the fundamental liberal
values of liberty and equality.17 Whereas people in the majority culture have access to their
own societal culture (and accordingly have the freedom to make meaningful choices among
options that the dominant societal culture provides), people in minority cultures who are not
afforded access to their societal cultures lack this freedom of choice. That the majority
culture permits those from minority cultures to adopt the majority’s societal culture is not
sufficient to counter this inequality and injustice because most people are strongly attached
to their particular societal culture.18 The mere fact that they can adopt another culture is too
costly a precondition to the exercise of freedom to make it just to deny them access to their
own societal cultures.19

B. Waldron’s Critique

Jeremy Waldron has sharply criticized Kymlicka’s argument as “guilty of something
like the fallacy of composition.”20 Waldron believes that “Kymlicka’s argument shows that
people need cultural materials,” but does not establish that people need a single cultural
framework that serves the purposes Kymlicka claims. Kymlicka’s argument fails, Waldron
says, because cultures are not pristinely distinctive, but instead are mélanges drawn from
disparate cultural sources. From this, Waldron argues, it follows that

the ethical importance of cultural wholes or integrated cultural frameworks is
thrown into question. With it goes the idea that it is important for each person to
be related to a secure and integrated framework via her membership in some
community in particular . . . . A person needs cultural meanings; but she does not
need a homogeneous cultural framework.21

Or, put more bluntly, Waldron thinks he’s demonstrated that “membership in a particular
community, defined by its identification with a single cultural frame or matrix, has none of the importance
that Kymlicka claims it does.” 22

But Waldron’s argument hardly undermines Kymlicka’s claim. Even if Waldron is
correct that most cultures contain within them elements that originated in other cultures, his
argument falls short of establishing his conclusion because it neglects the fact that the
receiving culture may have adapted the foreign elements. Indeed, there is strong empirical
evidence that this phenomenon of (what I’ve elsewhere dubbed as) “adapted adoption” is

16 Id. at 83.
17 Id. at 108-15.
18 Id. at 85-86.
19 Id. at 86. Kymlicka correctly notes that this conclusion, which is based on generalizations about human needs, is
unaffected by the fact that some individuals might elect to abandon the culture into which they were born and adopt
another. Id.
20 Jeremy Waldron, Multiculturalism and Melange, in PUBLIC EDUCATION IN A MULTICULTURAL SOCIETY 102 (ROBERT
K. FULLWIDER, ED.) (Cambridge 1996).
21 Id. at 104.
22 Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. Mich. J. L. Reform 751, 786 (1991-
1992) (emphasis supplied).

Rosen Educational Autonomy of Illiberal Religious Groups 5

widespread.23 There are several components to the process of adaptation. The receiving
culture may literally rework the meaning of the foreign element.24 The receiving culture also
necessarily must ascertain what weight or importance is to be ascribed to the foreign
element, particularly when it stands in tension, or actually conflicts with, other parts of the
recipient culture. In these respects, the adapted adoption is a process of integrating the
foreign element so that it coheres with the rest of the receiving culture, even if in doing so it
alters the receiving culture.

The process of adapted adoption helps explain why the mere fact that there are
shared elements among cultures does not undermine Kymlicka’s claim that cultures are
meaningfully distinctive in the sense that persons (many, at least) would feel harmed if they
did not have access to their culture. To give some concrete examples, Jewish culture remains
meaningfully distinctive even if (1) the Passover Seder was modeled on Greek and Roman
festive banquets and (2) even the Biblical author(s) borrowed from the Epic of Gilgamesh
when composing the story of Noah and the flood. Similarly, Islamic culture is meaningfully
distinctive even if both Islamic and Jewish law determine that day has begun when there is
sufficient light to distinguish between blue and green threads.25 In short, cultures can be
meaningfully distinctive even if they share some common elements.

Consider Waldron’s further critique of Kymlicka that

“[n]one of us needs to be immersed in one of the small-scale communities which,
according to Kymlicka and others, are alone capable of securing this integrity and
homogeneity. Some, of course, still may prefer such immersion, and welcome the
social subsidization of their preference. But it is not, as Kymlicka maintained, a
necessary presupposition of rational and meaningful choice.”26

This critique rests on a misapprehension of Kymlicka’s argument. Kymlicka does not claim
that everyone needs to be raised in a culture of a small-scale community. Rather, Kymlicka
acknowledges that there can be a societal culture at the level of a large country. His
argument is that people who belong to a sub-culture must be given access to their particular
cultures as well if they are to have liberty that is equal to that of members of the larger
societal culture. In short, for Kymlicka, belonging to some culture is a presupposition of
rational and meaningful choice, not necessarily belonging to a small culture.

In short, Waldron fails show that Kymlicka’s approach is premised on a logical
fallacy. Waldron’s arguments nonetheless are very illuminating for our purposes. To begin,
they share some important common ground; Waldron accepts Kymlicka’s claim that culture
is very important for people at least insofar as “choice takes place in a cultural context,
among options that have culturally defined meanings.”27 Second, they both recognize that
their political theories rest on non-axiomatic (and therefore contestable) theories of

23 Mark D. Rosen, Fordham Law Review. Similarly, it is well established that Catholicism differs greatly as between
(for instance) Africa, the Scandinavian countries, and France.
24 For example, Biblical scholars long have explained that the Hebrew Bible reworked ancient near-Eastern myths so
that they reflected Israelite conceptions of the Divine. See, e.g, James L. KUGEL, HOW TO READ THE BIBLE 69-80 (Free
Press 2007).
25 Check and source.
26 Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. Mich. J. L. Reform 751, 786 (1991-
1992) (emphasis supplied).
27 Waldron, at 102.

Rosen Educational Autonomy of Illiberal Religious Groups 6

personhood.28 In Waldron’s well-chosen words, even “a theory of toleration or liberal
neutrality” requires a “thin theory of choice, agency, and responsibility.”29 Juxtaposing
Kymlicka’s and Waldron’s theories concretely demonstrates how even a “thin” theory of
personhood invariably will be “controversial.”30 The extent to which there can be
controversy even vis-à-vis such a “thin” theory will be further demonstrated in the next
section, when I shall contrast Kymlicka’s and Waldron’s understandings with Rawls’
different theory of personhood.

C. The Need for a Richer Framework

Kymlicka makes a powerful argument for affording significant autonomy to minority
cultures. Less well worked out – and less convincing – are the two limitations on group
autonomy that he identifies. The first of these is what Kymlicka calls “’internal restrictions’
– that is, the demand by a minority culture to restrict the basic civil or political liberties of its
own members.”31 Kymlicka is unfortunately vague about the contents of “civil and political
liberties,” though he seems to equate them with the “freedom and capacity to question and
possibly revise the traditional practices of their community.”32 He moreover concludes that
internal restrictions sometimes may be “justified, on a temporary basis, where they are
required to protect the society from literal disintegration.”33 The second limitation on group
autonomy are what Kymlicka calls “external protections” which preclude a minority group
from “oppress[ing] or exploit[ing] other groups.”34

Not only is there uncertainty as to the precise contents of Kymlicka’s “internal” and
“external” restrictions, but Kymlicka’s framework neither offers a principled reason as to
why minority cultures should be subject to these constraints nor why they should not be
subject to additional limitations. Rawls is a much more systematic thinker, and his richer
framework provides a more principled method for identifying the appropriate limits to the
autonomy of minority cultures. (Interestingly, as we soon shall see, the appropriate
limitations that flow from a Rawlsian framework tracks Kymlicka’s “internal” and “external”
restrictions, but provide considerably more guidance in specifying their content).

There is another respect in which Kymlicka’s framework is inadequate. Even if a
minority culture desires to impose impermissible internal or external restrictions, Kymlicka
concludes that the majority liberal culture does not have the power to “coercively impo[se]
liberalism” but only can “offer[] various incentives for liberal reforms” to “self-governing
national minorities” within the liberal state.35 Kylicka concludes that liberal states ought to
relate to such groups in essentially the same manner that liberal states relate to illiberal

28 See Waldron, at 759 (“Any political theory . . . must be predicated on some view of what human life is like.”);
Kymlicka, at at 87, 90 (the reasons for people’s strong bonds to their culture “lie deep in the human condition [and are]
tied up with the way humans as cultural creatures need to make sense of their world, and [ ] a full explanation would
involve aspects of psychology, sociology, linguistics, the philosophy of mind, and even neurology.”).
29 Waldron, at 760.
30 Waldron, n. 30 at 760.
31 Kymlicka, at 152.
32 Id.
33 Id at 230 n. 1 (“Some restrictions on individual freedom within the minority community may be justified, on a
temporary basis, where they are required to protect the society from literal disintegration.”).
34 Id. at 152.
35 Id. at 168.

Rosen Educational Autonomy of Illiberal Religious Groups 7

groups located in other countries.36 Kymlicka is less committal vis-à-vis other minority
cultures, concluding that “[a] more complicated case involves long-standing ethnic or
religious sects who have been allowed to maintain certain illiberal institutions for many years,
even many generations.”37 These conclusions strike me as overly accommodating of illiberal
minority groups insofar as there are some practices that liberal polities legitimately can elect
not to accommodate. I take up this sort of limitation below in Part III when I discuss
Rawls.

III. The Original Position and the Just State

We now are in a position to proceed to Rawls’ analytical framework from Political
Liberalism. In so doing, I shall refer back to Kymlicka’s and Waldron’s understandings of
culture.

A. The Original Position and the Presumptive Need to Accommodate Religious Communities

John Rawls’ project in Political Liberalism is to describe the basic structure of a stable
and enduring democratic constitutional regime that can win the wholehearted support of a
citizenry having a plurality of irreconcilable “comprehensive doctrines.”38 Rawls elucidates
the basic structure of political society by use of the heuristic device of the “original
position.” Under the original position, people are to identify the fair political structure by
conceiving themselves as being under a “veil of ignorance” under which they “do not know
the social position, or the conception of the good (its particular aims and attachments), or
the realized abilities and psychological propensities, and much else, of the persons they
represent.”39 Because

the parties do not know whether the beliefs espoused by the persons they represent
is a majority or a minority view . . . . [t]hey cannot take chances by permitting a
lesser liberty of conscience to minority religions, say, on the possibility that those
they represent espouse a majority or dominant religion and will therefore have an
even greater liberty. For it may also happen that these persons belong to a minority
faith and may suffer accordingly. If the parties were to gamble in this way, they
would show that they did not take the religious, philosophical or moral convictions
of persons seriously, and, in effect, did not know what a religious, philosophical, or
moral conviction was.40

The veil of ignorance thus is a heuristic for enabling people to transcend their self-interests
so as to identify a just and fair political structure. Stated differently, the veil of ignorance
transforms personal self-interest into society-wide interest: People in the original position
will choose a political structure that maximally accommodates others because they do not
know whom they actually represent and accordingly would not want to risk creating a polity
that did not accommodate whomever it is they happened to be.

It follows that a person in the original position would not “gamble” by selecting a
political structure that might preclude her from living in accordance with her religious
convictions. This is so because allowing autonomy for only select persons’ conceptions of

36 Id. at 164-65.
37 Id. at 170.
38 See John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765, 784 (1997).
39 JOHN RAWLS, POLITICAL LIBERALISM AT Error! Bookmark not defined.305.
40 Id. at 311 (emphasis supplied).

Rosen Educational Autonomy of Illiberal Religious Groups 8

the good would constitute a “gamble [that would] show that [the person in the original
position] did not take the religious, philosophical or moral convictions of persons seriously
and, in effect, did not know what a religious, philosophical, or moral conviction was.”41

This has implications for our question at hand. For many, the freedom to live in
accordance with one’s religious convictions presupposes the existence of a religious
community of which she is a part and, derivatively, an educational system that can sustain
the community. The political structure chosen under the original position accordingly would
be one that afforded religious communities the autonomy to educate their children so that
their community can be perpetuated.

This conclusion is subject to several caveats. The first is that the members of some
religious traditions might not be permitted to “sit at the table” and participate in the original
position. Accordingly, the chosen basic political structure may not accommodate them. I
discuss the criteria for drawing the line between participating and excluded religious
traditions below in Parts III(B) to III(D).

Second, even as to those participating religious traditions, the original position
suggests that participating religious traditions would not have unlimited autonomy. Rather,
the participants in the original position, not knowing whether they represented
(participating) religious persons or non-religious persons, would opt for what Rawls calls the
“first principle of justice,” which constitutes a generous, but non-absolute, grant of liberty to
self-actualize in accordance with what a person believes self-actualization to require. I
examine these caveats below in Parts III(E) –III(F).

B. People in the Original Position: Rawls’ “political conception of the person”

Rawls carefully defines who it is that is imagined to be a participant in the original
position. It is the “the political conception of the person” that is “drawn on in setting up
the original position.”42 That is to say, when “we” imagine ourselves in the original position,
laboring to identify the structure of the just society, the “we”s that we have in mind are
those who conform to the political conception of the person.43 Defining the political
conception of the person thus is critical to the Rawlsian enterprise, for it is only people who
satisfy the conditions of the “political conception of the person” whose interests must be
taken account of in setting up the basic structure of the just State. Persons who fall outside
the “political conception of the person” are not guaranteed that their interests will be
guarded; nobody in the original position will necessarily aim to protect their interests because
people in the original position need not consider that they might represent such persons.44

Rawls’ political conception of a person is importantly different from the
understanding of personhood found in Kymlicka’s account (and, to the extent that Waldron
shares Kymlicka’s understanding of culture’s importance, Waldron’s as well). For Rawls, the
political conception of a person “begins from our everyday conception of persons as the

41 Rawls, Political Liberalism, at 311.
42 Id. at 29.
43 Id.
44 Id. at 103.

Rosen Educational Autonomy of Illiberal Religious Groups 9

basic units of thought, deliberation, and responsibility.”45 Under it, people are “seen as
capable of revising and changing [their conception of the good] on reasonable and rational
grounds, and they may do this if they so desire.”46 Rawls’ political conception of the person
hence does not take account of the role played by societal culture in shaping people’s
perceptions and deliberative processes. To fully understand the different theories of
personhood held by Kymlicka and Rawls, consider that, on Kymlicka’s account, culture goes
so far as to bound the scope of plausible options among which most individuals make
choices. For Kymlicka,

[t]he freedom which liberals demand for individuals is not primarily the freedom to
go beyond one’s language and history, but rather the freedom to move around
within one’s societal culture, to distance oneself from particular cultural roles, to
choose which features of the culture are most worth developing, and which are
without value.47

The mere fact that Rawls’ political conception of the person incorporates a contested
theory of personhood does not, on its own, disqualify his theory; as Waldron convincingly
argues, all political theories are premised on contestable theories of personhood.48 The
important question is whether the particular theory of personhood that Rawls’ chooses --
and the people with different theories of personhood whom Rawls thereby excludes from
participation in the project of designing the just state -- are wise and justifiable.

C. Should Religious People Participate in the Original Position?

Under a straightforward reading of Rawls it is unclear to what extent religious
persons would satisfy the “political conception of the person” and hence be invited to be
participants in the original position. While Rawls’ political conception of the person
assumes that individuals are the “basic units of thought,” some religious traditions appear to
adopt understandings of personhood closer to Kymlicka’s view that people’s ideas, values,
and very identities are deeply shaped by their society, culture, or community.49 Elsewhere
I’ve dubbed this “Government Socialization.” Some religious traditions also appear to reject
Rawls’ assumption that individuals are the “basic units of . . . responsibility” and instead
adopt what may be called an understanding of “Interconnected Welfare,” which maintains
that an individual’s prospects for self-actualization are inextricably connected to how other
individuals in her community behave and (perhaps even) believe.50

To be sure, whether a traditional Rawlsian would exclude members of a particular
religious tradition from participating in the original position ultimately turns on show “basic
units of thought . . . and responsibility” is specifically defined. My argument in this paper is
that members of many (perhaps most) religious traditions should be included in the
“political conception of the person” and hence should be deemed to be participants in the

45 RAWLS, supra note 39Error! Bookmark not defined., at 18 n. 20.
46 Id. at 30; see also id. at 31-32.
47 KYMLICKA, supra note 10Error! Bookmark not defined., at 90-91.
48 Waldron, at 759.
49 See also Michael Sandel, Michael Walzer, and Charles Taylor.
50 This notion is well captured in the Talmudic dictum of “cal yisrael arevim zeh vi’zeh.” BABYLONIA TALMUD
TRACTATE SHAVU’OTH 39a. This is frequently understood to mean that “all Jews are as sureties for one another” in
spiritual matters. In other words, just as a surety must pay for the insolvency of another, one Jew is accountable for the
spiritual wrongdoing of another Jew.

Rosen Educational Autonomy of Illiberal Religious Groups 10

original position. It matters not for present purposes whether this is accomplished by
construing “basic units of thought . . . and responsibility” sufficiently broadly to include
those who hold some version of “Government Socialization” and “Interconnected Welfare,”
or by broadening Rawls’ definition of the “political conception of the person” on the ground
that his definition is unnecessarily restrictive. But because I believe that Rawls’ definition of
“political conception of the person” is most readily understood as excluding both
Kymlicka’s theory of personhood (which gives rise to Government Socialization) as well as
the view of personhood that underwrites “Interconnected Welfare” -- and because many of
Rawls’ followers indeed have understood the “political conception of the person” in just this
way -- I shall argue here that Rawls’ definition is unnecessarily restrictive and ought to be
modified to include (most) religious traditions.

There are two reasons why (most) religious traditions ought not be excluded from
the original position. First, including them, to the extent possible, is demanded by
foundational liberal commitments. Consistent with the views of most liberals, Rawls agrees
that a liberal polity should be as neutral as possible – that is to say, as inclusive as possible --
vis-à-vis what Rawls calls “comprehensive doctrines.”51 The theory of personhood that
gives rise to “Government Socialization” and “Interconnected Welfare” quite likely grows
out of a comprehensive doctrine quite different from that which gives rise to Rawls’ strongly
individualist “political conception of the person.”52 Political liberalism would not be true to
its core commitments if its polity afforded liberty only to “others who think just as we do.”
If possible, people holding both comprehensive doctrines should be included in the original
position.

Second, there are powerful pragmatic reasons why people holding both
comprehensive doctrines should be included, if possible. The fact is that in many countries
today there are significant populations of people who have a theory of personhood more in
line with the non-Rawlsian comprehensive doctrine. Given this reality, it makes sense to
design a basic political structure that accommodates them, and this is best done by allowing
them to participate in the original position,53 if doing so is possible.54

51 Rawls, Political Liberalism at 198 (acknowledging that one could justly object if “the well-ordered society of
political liberalism fails to establish, in ways that circumstances allow . . . a just basic structure within which
permissible forms of life have a fair opportunity to maintain themselves and to gain adherents over generations”).
52 I recognize that Rawls claims that his project is premised on a political doctrine rather than a comprehensive
philosophical or moral doctrine (see, e.g, Rawls at xv), but this distinction is difficult to maintain if, as so many others
have recognized (see, e.g., Waldron, at xx), Rawls’ political doctrine proceeds on the basis of a contestable, non-
axiomatic theory of personhood.
53 Although it theoretically is possible for people to be accommodated without their being participants in the original
position (insofar as participants could plausibly conclude to design a political structure that gives room for non-
participants to self-actualize in accordance with their views of what self-actualization requires), any such
accommodation-notwithstanding-exclusion is a second-best for two reasons. First, participation in the original
position is what grounds the legitimacy of governmental authority insofar as the participants – and only the participants
-- can be said to have given their consent. Second, the underlying logic that motivates the heuristic device of the
original position is that the basic political structure is best chosen by the veil of ignorance’s transformation of narrow
self-interest into society-wide interest than by passively relying on others to look out for one’s own interests.
54 Does the second reason – the pragmatic reason -- “count” from an internal Rawlsian perspective? If it does not – if
Rawls is aiming to create a transcendentally perfect scheme of justice that would not take account of such pragmatic
considerations – then I am content to throw my lot with Sen and advocate that what we should do is aim for
incremental improvements in justice rather than perfect justice, and that incremental justice is best achieved by
maximizing the participants in the original position (with the qualifications discussed immediately above in the text).

But perhaps such pragmatic considerations would be amenable to a Rawlsian after all. Many aspects of the

Rosen Educational Autonomy of Illiberal Religious Groups 11

This raises an interesting question: why should anybody be excluded from
participation in the original position? Would it not be better to be wholly inclusive?

There are two reasons – one legitimate, one not -- for not including every possible
person in the original position. First the legitimate reason: Who is included in the original
position is another way of determining who is to be part of a country’s political community.
It is not unreasonable to conclude that some people have views and values that make it
impossible to share political community with them. Fair enough, but this reason suggests that
exclusions from participation in the original position ought to be made only rarely and that
there should be a strong presumption of inclusion, particularly vis-à-vis persons who already
dwell in the midst of a given country.

Rawls’ political conception of the person excludes a broader range of people. Why
does he take such an approach? It seems to me to be a product of reverse engineering:
Rawls wants to conclude that his two principles of justice would be unanimously agreed upon
by participants in the original position,55 but he can obtain unanimity only by aggressively
limiting who can participate in the original position. This, it seems to me, is not a legitimate
reason for exclusion, for three reasons.

First, any claim of unanimity is sophistry if such unanimity is achievable only through
drastic limits on who participates.

Second, it masks an important problem: since unanimity is not possible, what should
be done vis-à-vis those who will never agree to society’s baseline rules?56

Third – and most importantly for present purposes -- the criteria Rawls adopts by
means of his political conception of the person exclude more than is necessary. A stable
liberal polity can be achieved without excluding all persons who fall outside of Rawls’
political conception of the person. This can best be seen by eschewing Rawls’ attempt to
achieve unanimity through reverse-engineering. Let us assume that the first principle of
justice is a fair and extraordinarily well thought-out principle (even if it cannot command
unanimous assent), and let us consider what groups can be accommodated consistently with
the first principle. In other words, rather than stacking the deck (by exclusion) to achieve
unanimity among participants in the original position, we should be far more inclusive as to
who can participate in the original position.

Rawlsian framework accept as a given contemporary realities rather than looking to a transcendentally utopian but
pragmatically unreachable state of affairs. One of the best illustrations of this is the assumption that animates Rawls’
entire project, namely, that the existence of a “diversity of reasonable religious, philosophical, and moral doctrines
found in democratic societies is a permanent feature of the public culture and not a mere historical condition soon to
pass away.” This takes as a given the borders that define existing states and that joins heterogeneous populations under
the banner of a single country, and aims to devise the best polity under these (not necessarily ideal) circumstances.
Indeed, as best as I can tell, Rawls makes no effort to determine an ideal size of a polity, or to suggest criteria that
ideally inform how membership in a political community should be determined (tasks that did not elude other political
theorists with whom Rawls had intimate familiarity, such as Aristotle). Accordingly, Rawls’ project accepts important
“facts on the ground” as a given and aims to create the best possible political structure given these facts – but not
necessarily the most perfect political structure imaginable. There accordingly is no reason to assume that the pragmatic
considerations adduced above fall outside a Rawlsian framework.
55 See Sen, at 59.
56 This indeed is a vital question, but I shall not explore it further here because it extends beyond the limited subject of
this essay.

Rosen Educational Autonomy of Illiberal Religious Groups 12

The cost of this is that participants must recognize that it is possible that some of the
people they plausibly can represent will not be able to be accommodated in the resulting
liberal state. In short, participants will aim to generate the maximally accommodating polity,
even if the polity necessarily will not be wholly inclusive. But this is not really a “cost” vis-à-
vis Rawls’ approach insofar as Rawls’ political conception of the person also has the effect of
excluding people. More than this, the costs of proceeding as I suggest are less than what are
incurred under Rawls’ approach insofar as my approach reveals that the liberal polity can
(and, for that reason, ought to) accommodate some people who fall outside of Rawls’ highly
individualist political conception of the person.

D. Can Any Political Perfectionists can be accommodated in the liberal state?

Limiting participation to a narrowly construed “political conception of the person” –
and excluding from the original position those religious groups that were committed to
either Government Socialization or Interconnected Welfare – would be most readily
justifiable (though even still not necessarily justified57) if exclusion of anyone would did not
conform to the political conception of the person were necessary to secure a stable liberal
polity. The claim that people who believed in Government Socialization or Interconnected
Welfare necessarily had to be excluded – a claim that I shall refute in this subsection --
presumably would run as follows. The theory of personhood that gives rise to
“Government Socialization” and “Interconnected Welfare” naturally leads to the view that
government must play an extensive role in its citizens’ lives that may be dubbed “Political
Perfectionism.” Political Perfectionists believe that society, including government, must
actively promote a thick understanding of the “good” if its citizens are to be in a position to
fully self-actualize. On the assumption that citizens in a country frequently will have
divergent (albeit reasonable) comprehensive views, a government that pursued perfectionist
ends not shared by all citizens would seem to invite sectarianism and sharp fissures. And
forcing some citizens to adopt comprehensive views they do not share would seem to be the
antithesis of liberalism.

For these reasons, Rawls explicitly concludes that liberal polities cannot tolerate
Political Perfectionism.58 Elsewhere I have explained at length why Rawls’ view that no
Political Perfectionists can be accommodated is mistaken and why, to the contrary, some
forms of Political Perfectionism are compatible with a well-ordered, stable liberal polity.59
This conclusion has direct relevance to the question-at-hand regarding educational autonomy
insofar as the difficult questions arise in respect of religious communities that qualify as
Political Perfectionists.

To briefly summarize, my argument is that rather than excluding persons from the
original position to obtain (the illusion of) unanimous support for the first principle of
justice, we should start with the first principle of justice and ask what it requires and what
people can be accommodated under it. In essence, the first principle of justice encompasses

57 Even so, this might not fully justify their exclusion. A full account of what justice demands would require a
consideration of whether such groups ought to have a right to secede and to accordingly govern themselves
independently. This observation highlights a possible real-world cost of Rawls’ uncritical acceptance of the
contemporary borders that define countries. See supra note 54.
58 See Rawls, Political Liberalism, at 62; 196-97, quoted in Rosen, Outer Limits, supra note 2, at 1106-08.
59 See Rosen, Outer Limits, supra note 2, at 1106-24.

Rosen Educational Autonomy of Illiberal Religious Groups 13

the liberty of citizens to self-actualize in accordance with her views of what self-actualization
requires, to the extent that doing so is consistent with other citizens’ similar right to self-
actualization.60 Creating a basic political structure that permits non-perfectionists the
opportunity to self-actualize in accordance of their views of what self-actualization requires,
but that does not afford the same opportunity to perfectionists to the extent that this is
possible, accordingly would violate the first principle of justice. I then showed that Rawls
mistakenly concludes that liberal polities could not accommodate political perfectionists
because he overlooked the possibility of a federalist “basic structure” such that political
perfectionists groups holding commitments not held by other citizens could dwell and
maintain themselves in sub-federal polities.61 The possibility of such perfectionist carve-outs
means that some (though not all) forms of Political Perfectionism may be able to be
accommodated within political liberalism.

In particular, political liberalism can – and, for that reason, should – accommodate
“Localist” Political Perfectionists, and only cannot make room for “Universalist” Political
Perfectionists. “Localist” Political Perfectionists desire only that their local governments be
empowered to pursue perfectionist agendas, and are willing to allow other parts of society to
be governed differently. There are two types of “Localist” Political Perfectionists. “Insular”
perfectionists do not think their community’s ideals and practices to be binding on those
outside their community, but seek only to preserve themselves (as is true of many aboriginal
communities). “Exemplary” Perfectionists, by contrast, hope to spur larger societal changes
and alter the behavior of others outside their communities, but only by example, not physical
or political coercion. In sharp contrast to Localist Political Perfectionists, “Universalist”
Political Perfectionists aim to achieve control of the federal government’s machinery so as to
compel others to live in accord with their views of the good. (The next subsection will
explain in greater detail why Universalist Political Perfectionists cannot be accommodated
as a matter of liberal political theory.62)

This is the framework that ought to be taken to determine the educational autonomy
that liberalism owes to religious groups that qualify as Political Perfectionists. If liberal
commitments demand that Localist Perfectionists be permitted to maintain themselves so

60 The first principle of justice is that “[e]ach person has an equal right to a [1] fully adequate scheme of [2] equal
basic liberties which is [3] compatible with a similar scheme of liberties for all.” Rawls, Political Liberalism, at 291.
The first principle of justice encompasses a presumptive need to accommodate Political Perfectionists for two reasons.
First, as to subcomponent [3], Rawls states that “[t]he basic liberties (freedom of thought and liberty of conscience, and
so on) . . . are the background institutional conditions necessary for the development and the full informed exercise of
the two moral powers,” Rawls at 308, one of which is the capacity to formulate a conception of the good, id. at 19.
The first principle of justice thus presumptively requires that Political Perfectionists have access to what they require to
develop their conception of the good.

Second, Rawls states that a “fully adequate scheme” refers to the “criterion … to specify and adjust the basic
liberties so as to allow the adequate development and the full and informed exercise of” the “capacity for a sense of
justice.” Id. at 19; 333. A sense of justice “expresses a willingness, if not the desire, to act in relation to others on
terms that they also can publicly endorse.” Id. at 19. As such, a “sense of justice” is connected to willing “compl[ianc-
e] with society’s basic institutions . . .” Id. at 35. Accommodating Political Perfectionists is consistent with the
development of a sense of justice in Political Perfectionists because citizens are apt to willingly act in accordance with
the basic structure of society if that structure allows them to make meaningful choices concerning their views of the
good, which requires that people have access to their own societal cultures.
61 See Rosen, Outer Limits, supra note 2, at 1108-24.
62 As mentioned above, considerations aside from principle may well lead people in a particular polity to conclude that
even Universalist Political Perfectionists in their midst should be accommodated. Such accommodations, however, are
properly understood to be violations, rather than vindications, of liberal commitments.

Rosen Educational Autonomy of Illiberal Religious Groups 14

that their members have the opportunity to self-actualize in accordance with their views of
what self-actualization requires, it follows that such religious groups qualifying as Localist
Political Perfectionists should have the autonomy to educate their children so as to sustain
themselves – subject to the two important caveats that are the subjects of the next two
subparts.

E. Limitation I: The Requirement of “Well-Orderedness”

According to Rawls, the first principle of justice that emerges from the original
position is that “[e]ach person has an equal right to a fully adequate scheme of equal basic
liberties which is compatible with a similar scheme of liberties for all.”63 “Fully adequate
scheme” refers to the “criterion . . . to specify and adjust the basic liberties so as to allow the
adequate development and the full and informed exercise of both moral powers in the social
circumstances under which the two fundamental cases arise in the well-ordered society in
question.”64

The requirement that there be a “fully adequate scheme” imposes an important
limitation on which Political Perfectionists can be accommodated and, as well, places
constraints on those Political Perfectionists that can be accommodated. Rawls quite
plausibly defines a “well-ordered society” to mean a polity in which “citizens have a normally
effective sense of justice and so they generally comply with society’s basic institutions, which
they regard as just.”65 Well-orderedness thus is metonymic with conditions that permit and
promote an “enduring and secure” political regime,66 thereby preserving one of liberalism’s
foremost accomplishments of bringing about peace and avoiding sectarian conflicts of the
sort found in the centuries-long European religious wars.67 Well-orderedness means that
Political Perfectionists can be accommodated only if they have a peaceful disposition toward
their non-Perfectionist neighbors. This is why Universalist Political Perfectionists cannot be
accommodated. There is no reason, however, to think that Localist Political Perfectionists
are inconsistent with a well-ordered society.

Well-orderedness also entails substantive limitations on the activities that qualifying
Political Perfectionists can undertake. Among other things, well-orderedness imposes
important educational obligations. Those raised in perfectionist communities must be
educated in a manner that encourages them to understand the justice of the polity in which
they live so that they will willingly comply with society’s basic institutions. Teaching citizens
about the political theory that justifies society’s basic structure—helping them to understand
the essentials of the argument developed here—should suffice.68 Such educational
requirements would not seem to be inconsistent with the comprehensive doctrines that give
rise to Localist Political Perfectionism. Though such perfectionists on their own might not
think it important to include such civic education, such a curriculum would not threaten to
undermine the viability of Local Political Perfectionists.

63 Id. at 291 (emphasis supplied).
64 RAWLS, supra note 39Error! Bookmark not defined., at 333.
65 Id. at 35.
66 Id. at 38.
67 See RAWLS, supra note 39Error! Bookmark not defined., at xxviii; KYMLICKA, supra note 10, at 155.
68 Morever, there is no reason to think that this type of education would undermine the ability of minority societal
cultures to survive. Such an education accordingly would not be inconsistent with the position advocated in this paper
concerning the need to accommodate select minority societal cultures.

Rosen Educational Autonomy of Illiberal Religious Groups 15

F. Limitation II: The Requirement of Opt-Out

The third component of the first principle of justice is that the basic structure be
“compatible with a similar scheme of liberties for all.” This “compatibility” requirement confirms
the need to accommodate Political Perfectionists to the extent possible,69 but it also entails
some constraints on Localist Political Perfectionists. For the compatibility requirement to
be satisfied, persons must have the right to choose in which community they can join. This
entails both the option to “opt-out” of the environment in which she finds herself and to
“opt-in” to another.

Let’s first consider why such rights of opt-out and opt-in are so crucial before
analyzing their content. Imagine a Political Perfectionist community that sought to flatly
disallow its inhabitants from exiting. A person living in that community who did not share
the perfectionist community’s commitments and felt that remaining in the community
impeded her ability to self-actualize would not enjoy the same liberty of exercising
meaningful choice that is enjoyed by a person who lived in, and was satisfied by, the majority
societal culture. To make the liberty of members of Political Perfectionist communities
“compatible with a similar scheme of liberties” for those who do not identify with the
perfectionist culture, people in perfectionist communities must have the ability to opt-out
and leave the community which they happened to be situated and opt-in to a new culture.

Ensuring that members of a religious group have a meaningful right to “opt-out”
squarely implicates educational issues (as well as a host of other questions that are beyond
the question-at-hand of educational autonomy).70 People typically ask the question as
follows: How much knowledge about life outside the minority culture, and how much
training to support oneself and otherwise survive in the outside world, is necessary for the
opt-out right to be real?71 The problem for opt-out is that the education provided by the
perfectionist community typically valorizes its own culture while it ignores or degrades
others, thereby undermining the likelihood that its members will opt for the other. The
question then becomes what are the prerequisites for the decision to remain in the minority
societal culture to be meaningful such that the right of opt-out is meaningful and real, and
not merely theoretical.

A useful way to begin to answer these questions is to refer back to the original
position and ask what type of education is necessary for people to have meaningful opt-out
rights. It must be acknowledged up front, however, that such an approach cannot come
close to fully answering these questions for several reasons. The heuristic of the original
position does not, on its own, provide the means for determining how risk-averse its
participants are. For example, there always have been innovators who have been able to

69 The compatibility requirement can only be met by allowing Political Perfectionists space to self-actualize in
accordance with their views of what self-actualization requires (to the extent possible). Not accommodating Political
Perfectionists violates the compatibility requirement insofar as such a non-accommodating polity would only allow
non-perfectionists the liberty of self-actualizing in accordance with their views of what self-actualization requires.
70 I shall not give further attention here to the scope of “opt-in” rights because it is not directly relevant to the question
at hand concerning the educational autonomy of religious groups. Elsewhere I have explored this issue in some detail.
J. Contemp. Legal Qs.
71 See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 241, 245-46 (1972) (Douglas, J., dissenting) (“If a parent keeps his
child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing
world of diversity that we have today . . . . If he is harnessed to the Amish way of life by those in authority over him
and if his education is truncated, his entire life may be stunted and deformed.”).

Rosen Educational Autonomy of Illiberal Religious Groups 16

“opt-out” of the societies into which they were born simply by virtue of their intellects, and
many others for whom a sense of adventure and some degree of dissatisfaction with the
status quo has sufficed to prompt them to leave their homes (as is attested to by the vast
history of immigration). For these people, knowledge that there is an outside world coupled
and the absence physical restraint suffices for them to be able to opt-out.

On the other hand, innovators and immigrants may well be the exception, not the
norm. It might be suggest that persons in the original position should calibrate opt-out to
more of a “median” risk-taking personality. This however, invariably involves making
contested psychological and sociological assumptions as to what the contents of such a
median proclivity actually are. Moreover, even if there were a consensus as to what
constitutes the median personality, pegging opt-out to the median would be controversial
insofar as it still would not provide adequate resources for persons below the median of risk-
taking (who in general would be reluctant to leave the culture into which she has been born
unless she were very well acquainted with the alternative cultures and able to make a good
living there). This understanding might lead one to suggest that opt-out should be calibrated
to the most risk-averse, but this solution also comes at a cost: at some point educating
children so that they can readily “opt-out” of the culture into which they were born risks
unduly undermining the ability of that culture to perpetuate itself and, for that reason, would
be rejected by people in the original position.

Although it is difficult to concretely identify what educational requirements are
entailed by the opt-out requirement, it is possible to make some solid, useful observations.
First, there almost invariably will be tension between the requirement of opt-out and a
perfectionist community’s first-order educational preferences. The operative principle is that
perfectionists can educate their children as they wish, subject to the caveat that people in the
perfectionist communities be able to make informed life-style choices pursuant to non-
perfectionists’ understanding of what informed decision-making requires.

But what precisely does informed decisionmaking require? Several things can be
said. For one, meaningful opt-out does not mean that children raised in perfectionist
communities must be educated so that they can earn what they would have had they been
raised outside the perfectionist community. Such a concern for diminished earning potential
animated Justice Douglas’ partial dissent in Wisconsin v. Yoder, the well-known American case
that exempted an Old Order Amish community from a state compulsory education law and
permitted Amish children to be removed from school after the eighth grade.72 But Justice
Douglas’ concern is misplaced, and it is the eight other Justices’ holding that is justifiable,
because diminished earning power does not make opt-out a mere formality. Consider, for
example, an Amish boy with native intelligence that could have earned him admission to
Harvard College had he been given a public high school education but who only received an
eighth grade Amish education and consequently could only acquire a job as a carpenter if he
elected to exit from the Old Amish order. The fact that the boy’s Amish education
precluded him from obtaining a job as an investment banker upon graduation from Harvard

72 Wisconsin v. Yoder, 406 U.S. 205, 245-46 (1972) (Douglas, J., dissenting) (“It is the future of the student, not the
future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade
school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today
. . . . If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his
entire life may be stunted and deformed.”).

Rosen Educational Autonomy of Illiberal Religious Groups 17

is not relevant to ascertaining whether he has real or merely formal opt-out rights. What is
relevant is his earning capacity as a carpenter outside his community as compared to what
his standard of living would be were he to remain within the Amish community. The
modest lifestyle of the Amish means that even an eighth grade education would make the
opt-out rights real. More generally, the amount of education necessary to enable a
community member to earn a living outside the community for purposes of opt-out will vary
from community to community, and it is dependent upon the community’s standard of
living.

It might be thought that subjecting children to a perfectionist environment where
they are deprived of access to certain books and perspectives, and thereby socialized in a
certain way, necessarily deprives those children of the ability to make a fully objective choice
as to whether they should remain or exit the community. This view of what opt-out requires
is fatally undermined, however, to the extent that all environments, including non-
perfectionist society, socialize children.73 Rawls himself reluctantly acknowledges this fact,74
and such a view lies at the heart of Kymlicka’s understanding of societal culture and his
assumption that people generally move around within their societal culture, not between or
among cultures.75

This common ground between Rawls and Kymlicka suggests that the view that
cultures possessive non-trivial socializing power that incline their members to remain within
them is not a deeply controversial proposition. And this has important implications for the
requirements of opt-out. If culture and education – even liberal cultures -- typically have
this effect of largely ensuring that their members remain with their societal cultures for their
lifetimes, and if people in the original position understand this to be the case, then they
would not insist that the opt-out requirement is met only when people are educated so that
they can make fully autonomous choices to remain in their culture.76 People in the original
position accordingly would be satisfied with softer opt-out conditions, such as the absence
of physical restraints and the mere knowledge that there exists a different world out there.

Finally – and now I’m proceeding to more controversial assumptions concerning
personhood -- if something like Kymlicka’s understanding of culture is correct, then the
heart of opt-out is not a person’s ability to move from a perfectionist community to a non-
perfectionist community (or visa versa), but is something else that generally is overlooked.
Kymlicka argues that the autonomy liberalism presumes is the “freedom to move around
within one’s societal culture, to distance oneself from particular cultural roles, to choose
which features of the culture are most worth developing, and which are without value.”77 If
this is so, then people in the original position would be deeply concerned about having the
right to move from one point to another within their particular societal culture—what we

73 See, e.g.,Nomi Maya Stolzenberg, “He Drew a Circle That Shut Me Out:” Assimilation, Indoctrination, and the
Paradox of a Liberal Education, 106 Harv. L. Rev. 581 (1993); Moshe Halbertal, Autonomy, Toleration, and Group
Rights, in Toleration 111-12 (David Heyd ed., 1996).
74 Rawls, Political Liberalism, at 200 (acknowledging that the type of education necessary to sustain the polity he
envisions “is in effect, though not in intention, to educate [children] to a comprehensive liberal conception”).
75 KYMLICKA, supra note 10Error! Bookmark not defined., at 90.
76 The requirement of well-orderedness, however, may well place limits on the extent to which minority societal
cultures can demonize other cultures in the process of educating their youth.
77 Id.

Rosen Educational Autonomy of Illiberal Religious Groups 18

might call an “intra-cultural opt-out right.” This would have important educational
implications for religious groups, for it suggests that they cannot enforce orthodoxies so as
to preclude internal criticisms and reforms of their cultures.

IV. Conclusion

This paper’s analysis suggests that people in the original position would think it fair
to establish a basic political structure that allowed many perfectionist groups (which would
include many religious groups) to flourish, subject to the important but discrete limitations
imposed by the requirements of well-orderedness and opt-out. A crucial implication of this
analysis is that accommodating minority societal cultures is not simply something that is in
the best interests of the perfectionist groups. Rather, accommodation is in the best interest
of general society, as well. This is true because general society best lives up to its
foundational liberal commitments when it allows such groups space to largely rule their lives,
subject to the limitations discussed above.