Reciprocity and reasonable disagreement: From liberal to democratic legitimacy

Philosophical Studies

Volumn 132, Issue 2, 2007, Pages 243-291

  Reidy, David A ^a  

^a UNIVERSITY OF TENNESSEE   (United States)

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EID: 33846873464     PISSN: 00318116     EISSN: 15730883     Source Type: Journal    
DOI: 10.1007/s11098-005-2216-6     Document Type: Article

References (90)

1. John Rawls, A Theory of Justice, Harvard University Press, 1971, revised edition, 1996, p. 3. Hereafter 77. All citations are to the 1996 revised edition.
2. John Rawls, Political Liberalism, Columbia University Press, 1993 (and 1996 paperback), p. 24, note 27, and elsewhere. Hereafter PL. All citations are to the 1996 paperback edition.
3. John Rawls, The Law of Peoples, Harvard University Press, 1999. Hereafter LoP.
4. For a useful analysis of various accounts of legitimacy as a moral property enjoyed by states and the relationship between legitimacy and other moral properties of states such as justice, see A.J. Simmons, "Justification and Legitimacy," Ethics, v. 109, n. 4, pp. 739-771, 1999;
5. and Allen Buchanan, "Political Legitimacy and Democracy," Ethics, v. 112, n. 4, pp. 689-719, 2004.
6. See also, Richard Flathman, "Legitimacy," A Companion to Contemporary Political Philosophy, Robert Goodin and Philip Pettit, eds., Blackwell Publishers, 1993;
7. and Alan Cromartie, "Legitimacy," Political Concepts, Manchester University Press, Richard Bellamy and Andrew Mason, eds., 2003.
8. Thus Rawls says of legitimacy and justice: "A little reflections shows they are not the same. A legitimate king or queen may rule by just and effective government, but then they may not; and certainly not necessarily justly even though legitimately. [...].A significant aspect of the idea of legitimacy is that it allows a certain leeway in how well sovereigns may rule and how far they may be tolerated. The same holds under a democratic regime. [...] Thus, legitimacy is a weaker idea than justice and imposes weaker constraints on what can be done. [... T]hough there is of course an essential connection with justice." PL, pp. 427-428.
9. H.L.A. Hart would appear to suggest such a proceduralist-pedigree view in The Concept of Law, Oxford University Press, 1997.
10. PL, p. 429.
11. Rawls does discuss the obligations of citizens to obey the law, first in terms of 'fair play' considerations and then in terms of a 'natural duty of justice,' as well as issues of civil disobedience. See TJ, Chapter 6. But he does not discuss the legitimacy of coercive state action. The term "legitimacy" does not appear in the index.
12. Comprehensive doctrines range over the full domain of value across the totality of the human condition. They thus extend well beyond, but typically also include, the narrower idea of conceptions of the good as that idea applies to individuals. On the nature of comprehensive doctrines, see PL, p. 13.
13. For one of Rawls's later discussions of the fact of reasonable disagreement, see Justice as Fairness: A Restatement (hereafter JF), Harvard University Press, 2001, pp. 33-36.
14. Rawls refers typically to "the fact of reasonable pluralism." But I follow Charles Larmore's suggestion that the fact to which Rawls refers is better named "the fact of reasonable disagreement." See Charles Larmore, "Pluralism and Reasonable Disagreement." Social Philosophy and Policy, v. 11, pp. 61-85, 1994.
15. See PL, pp. 64-65, and 144.
16. See, e.g., PL, pp. 3-4, and 136-137.
17. For a clear statement of Rawls's own sense of this transition, see Samuel Freeman's "Introduction" to the Cambridge Companion to Rawls, Cambridge University Press, 2003. See also Burton Dreben's, "On Rawls and Political Liberalism," in that same volume.
18. Well, perhaps not literally complete, since Rawls presents his LoP as the ideal of international relations appropriate to a liberal democratic body politic committed to political liberalism and to, or to aspiring to, justice as fairness. This, he says, completes his normative political theory of liberal democracy.
19. Among others: public reason, overlapping consensus, political constructivism, and freestanding justification.
20. PL, p. 137.
21. See also JF, pp. 40-41.
22. Reciprocity, in turn, Rawls regards as rooted in the moral capacity to be reasonable, to seek and honor principles of conduct others could reasonably accept or could not reasonably reject. Rawls makes this explicit at various points. See, e.g., PL, p. xlvi. While Rawls does not say as much, the moral capacity to be reasonable is, ultimately, the capacity to live as a person or practical moral agent in a world within which there are, and in full recognition and respect of, other persons or practical moral agents. This is what Rawls presumably means when he says that the reasonable is public in a way that the rational is not.
23. See, PL, p. 50.
24. See also JF, p. 77.
25. See, e.g., PL, p. xlvi.
26. PL, p. 429.
27. See, e.g., PL, pp. 36, 144.
28. See, e.g., PL, pp. 6, 164-168.
29. See, PL, pp. 228-230 and 338-339.
30. See, PL, pp. 190-194.
31. Indeed, they might disagree even over which of several generically liberal conceptions of justice is best. From PL on in his writing, Rawls maintains that it is only a generic liberalism that can meet the demands of reciprocity between citizens as free equals. For just one statement of the claim that reasonable disagreement extends to political values,
32. see JF, p. 36.
33. For a good overview of Rawls's ideal of public reason see Charles Larmore's "Public Reason," in The Cambridge Companion to Rawls.
34. For more critical discussion, see my "Rawls's Wide View of Public Reason: Not Wide Enough," Res Publica v. 6, pp. 4972, 2000.
35. See, e.g., JF, pp. 134-136.
36. See also, TJ, pp. xiv-xvi.
37. For discussion see JF, pp. 145-148.
38. See, PL, pp. 227-230.
39. On the relationship between legitimacy and public reason as a norm governing citizens when they make political judgments and vote on matters of basic justice and constitutional essentials, see PL, pp. 216-220.
40. On the relationship between legitimacy and public reason as a norm governing the Supreme Court in its exercise of judicial review, see PL, pp. 231-240.
41. The close connection between liberal legitimacy and public reason and reciprocity is, of course, a matter central to Rawls's later work, and thus permeates PL and is also discussed at some length in JF. See, e.g., JF, pp. 89-94.
42. The burdens of judgment include the facts that no two persons ever have the same life experiences, that everyone's reasoning is shaped by their life experience, that many abstract concepts admit of many defensible conceptions, that the empirical evidence relevant to assessing the truth of many claims is complex and difficult to evaluate, and that the balance or order of values relevant to many claims is likewise complex and difficult to establish. For a clear statement by Rawls of the burdens of judgment and their relationship to reasonable disagreement, see PL, pp. 54-58.
43. Simple disagreements are, in contrast to reasonable disagreements, rooted in some identifiable, reproachable and correctable failure of rationality or reasonableness, such as a failure of inference or logic, or a failure to avoid bias or prejudice, in one's reasoning.
44. Of course, simple disagreements are to be expected and expected to persist as a permanent feature of a free and open society as well. But we need not invoke the burdens of judgment to explain them. While simple disagreements are no doubt a permanent feature of the human condition (so long as we remain fallible), they raise no special problems with respect to reciprocity or legitimacy for Rawls, since their existence is due to the failure by at least one party to deliberate in a reasoned way and to exercise sound judgment. It bears mentioning here that the distinction between simple and reasonable disagreements is not a purely epistemic distinction, though it has epistemic dimensions. In the end, to identify a disagreement as reasonable is to express a certain moral stance toward another one regards as mistaken, perhaps deeply mistaken, in his or her beliefs or commitments.
45. And most arguments in political life are nondeductive.
46. Suppose Bob and Sally disagree over what conclusion follows inductively from a particular set of premises. Suppose further that Bob endorses stricter standards of inductive inference and Sally endorses looser standards. Bob and Sally will disagree, then, not just over the substantive conclusion they think follows inductively from a particular set of premises, they'll disagree also over the nature of that disagreement. Indeed, they may disagree, even disagree reasonably if their disagreement over standards of inductive inference is reasonable, over whether their substantive disagreement is itself simple or reasonable.
47. And, it is not enough, of course, merely to insist dogmatically on some great divide between science and morality, religion and philosophy.
48. This sort of view would be welcomed by MacIntyre, Hauerwas and other critics of modernity. For a useful discussion of the anti-modern stance of such neotraditionalist religious thinkers, see Jeffrey Stout's recent Democracy and Tradition, Princeton University Press, 2004, Chapter 5.
49. There are many persons disinclined to affirm the fact of reasonable pluralism in anything like the form Rawls casts it or to accommodate themselves to it in their thinking about a just social order. Rawls regards his disagreement with such persons as simple rather than reasonable. On his view, those who reject the fact of reasonable pluralism or refuse to accommodate themselves to it in political life do so unreasonably. Accordingly, it is no affront to the ideal of reciprocity in justification simply to ignore their judgments. Of course, if the fact of reasonable disagreement were itself something over which persons may reasonably disagree, then Rawls, being committed to reciprocity in justification, would have to avoid any necessary appeal to the fact of reasonable disagreement in his public justification of liberal principles of justice.
50. I am grateful for this point to an anonymous reviewer for this journal.
51. For a useful discussion of the difficulty Rawls faces in giving a noncircular account of why those who reject generic liberalism are unreasonable in so doing, see Marilyn Friedman, "John Rawls and the Political Coercion of Unreasonable People." in The Idea of a Political Liberalism: Essays on Rawls, eds., V. Davion and C. Wolf, Rowman and Littlefield, 2000.
52. In response to a question from the audience at the conference at Santa Clara University celebrating the 25th anniversary of TJ's publication, Rawls explicitly stated that he regarded libertarianism as an unreasonable doctrine because it did not take the basic social structure as the subject of justice. For Rawls's statement of this defect of libertarianism, see PL, pp. 262-265,
53. and JF, p. 16.
54. For contrary remarks by Rawls the tone at least of which suggests that the libertarian -liberal disagreement is a reasonable disagreement, see JF, p. 83.
55. For an account and defense of Rawls's position that libertarianism is simply an unreasonable doctrine, see Samuel Freeman, "Illiberal Libertarians: Why Libertarianism is Not a Liberal View." Philosophy and Public Affairs, v. 30, n. 2, pp. 105-151, 2001.
56. The claim comes to this: Marxists, communitarians, libertarians and similar dissenters from generic liberalism are either unreasonable in their dissent or really closet generic liberals dissenting from only this or that determinate conception of generic liberal justice. This is the sort of "reconciliationist" view animating the work of James Sterba and Will Kymlicka. It's the "in the end and after a full analysis, we're all (or should be) good liberals after all" view. I find this " reconciliationist" orientation or commitment problematic. It seems to me, to cite just one example, that the disagreements between Nozick and Rawls or Rawls and G.A. Cohen are just the sort of disagreements we should regard as reasonable and unlikely to dissipate upon careful examination. These are persons of high intelligence and manifest good will and their disagreements ultimately derive from the great difficulty of saying in relatively concrete and determinate form and in light of often ambiguous empirical facts what we mean when we commit ourselves to the freedom and equality of citizens vis a vis their social world.
57. For an introduction to the range of reasonable disagreements that persist with respect to determinate democratic orders, and indeed democracy itself, see Robert Dahl's Democracy and Its Critics, Yale University Press, 1989, especially Part IV.
58. It's perhaps worth noting here that in the context of original position reasoning there are no determinate transition costs to appeal to since there is no antecedently given democratic order. We simply ask in abstracto which democratic institutional design is such that no reasonable citizen could reasonably reject it.
59. The same point might be made about more recent arguments for deliberative democracy. Whether democratic deliberation serves to improve the judgment of individual voters is an empirical matter over which social scientists and others presently reasonably disagree. For a discussion of these matters, see John O'Neill, "The Rhetoric of Deliberation: Some Problems in Kantian Theories of Deliberative Democracy," Res Publica, v.8, n. 3, pp. 249-268, 2002.
60. Rawls considers and allows for the possibility of plural voting. See TJ, pp. 204-205.
61. The ambiguity I have in mind and explicate in the text appears in statements of the liberal principle of legitimacy such as the following: "... when constitutional essentials and questions of basic justice are at stake, the exercise of coercive political power, the power of free and equal citizens as a collective body, is to be justifiable to all in terms of their free public reason." JF, p. 141.
62. For similar statements, see also, JF, pp. 41, 202,
63. and PL, pp. 137, 217.
64. In these statements it is unclear whether Rawls means to require only that citizens could reasonably affirm the relevant positions or more strongly that they could not reasonably reject them. This ambiguity appears also in "The Idea of Public Reason Revisited," reprinted in both LoP and the Collected Papers, Samuel Freeman, ed., Harvard University Press, 1999;
65. see, e.g., the statement at p. 578 in the Collected Papers. Indeed, the ambiguity appears as early as Rawls's 1971 essay "Justice as Reciprocity."
66. See, e.g., Collected Papers, p. 208.
67. The ambiguity is underscored by Rawls's approving references to Scanlon's view, which explicitly adopts the more demanding could not reasonably reject formulation of reciprocity. See, e.g., PL, p. 49, note 2, and p. 124.
68. A less telling but still relevant reference to Scanlon's view may be found also in JF, p. 7, note 6.
69. Those inclined to read Rawls as adopting only the weaker could reasonably affirm formulation must explain away these approving references to Scanlon's view. Yet, it must be acknowledged that Rawls uses the could reasonably affirm formulation very often. See, e.g., PL, 137, 216.
70. As I suggest in the text of this essay, the textual ambiguity in Rawls's work cannot be fully resolved by appeal to the structure of his arguments and overall position. For here too we find ambiguity with respect to the two alternative formulations of reciprocity. For example, when Rawls discusses public reason, it often unclear which of the two formulations of reciprocity he is working from. Sometimes Rawls speaks as if the ideal of public reason requires citizens in political activity to bracket or set aside commitments arrived at solely from reasons others could reasonably reject; sometimes he speaks as if it requires them only to assure themselves that others could reasonably affirm their reasons for their political commitments. Commentators are accordingly themselves divided over Rawls's meaning. Rex Martin, for example, has insisted in several essays on the weaker reading as the correct reading. See, for example, his "Rawls's New Theory of Justice," Chicago-Kent Law Review, v. 69, pp. 737-762, 1994.
71. Jeffrey Stout has, along with most others I think, adopted the stronger reading. See, e.g., his Democracy and Tradition, Princeton University Press, 2004, p. 10.
72. See H.L.A. Hart, The Concept of Law, 2nd edn, Oxford University Press, 1997.
73. See Philip Soper, A Theory of Law, Harvard University Press, 1984.
74. Rawls cites Soper favorably in LoP, pp. 66, 67, and 72, and in PL, p. 109.
75. JF, p. 186.
76. See, e.g., JF, p. 27;
77. PL, p. 22f;
78. and TJ, pp. 16-17. This commitment to justification from common ground underwrites Rawls's commitment to drawing on only weak assumptions regarding reasonableness in the original position argument.
79. Since the reason of citizens qua citizens just is the reason of a liberal democratic body politic as a corporate artificial moral agent, the latter may be regarded as acting autonomously (even when citizens reasonably disagree in their political judgments) provided citizens honor the ideal of reciprocity and the liberal principle of legitimacy and resolve their disagreements through constitutional democratic procedures themselves faithful to the ideal of reciprocity. For discussion, see my "Rawls's Wide View of Public Reason: Not Wide Enough," supra.
80. See LoP, especially Part II. For a sympathetic reconstruction of LoP, see my "Rawls on International Justice: A Defense, Political Theory, v. 32, 291-319, 2004.
81. See LoP, pp. 63-66.
82. See Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, 2nd edn, Princeton University Press, 1996, esp. Chs. 1-3.
83. See The Concept of Law, pp. 193-200.
84. To be sure, Hart does not argue that the minimum natural law content of any legal system likely to endure among human beings must necessarily be extended to all human beings within the body politic. On his view, it need only be extended to enough of them to make the legal system viable. Thus, for Hart, a slave-holding legal system may be a genuine legal system able to generate genuine legal obligations (though perhaps not moral obligations). See The Concept of Law, p. 200. Here it is important to keep in mind, before rejecting Hart's view, that Hart did not set out to account for a moral obligation to obey for the law; he rather set out to account for the normative force of legal obligations as legal obligations. In any case, Rawls does not reject Hart's view of law or legal obligation as such. Instead he argues that political or legal authority is not legitimate in the absence of "bona fide moral duties" to obey the law.
85. See LoP, p. 66, note 5. And these duties cannot exist, Rawls and Soper agree, if what Hart called the "minimum natural law content" of any legal system is not extended to all subject to it.
86. Lon Fuller makes a similar point about the rule of law and purposeful social interaction in The Morality of Law, Yale University Press, 1964.
87. Rawls's too-often overlooked references to Soper in LoP, p. 66, 67 and 72,
88. and in PL, p. 109, bear mention here.
89. In Chapter 7 of his A System of Rights, Oxford University Press, 1997, Rex Martin argues for a view similar in its emphasis on civil rights legislation reciprocally advancing the interests of all to the view I am suggesting here.
90. Nor is instability illegitimacy.