The Completeness of Public Reason

Politics, Philosophy & Economics

Volumn 3, Issue 2, 2004, Pages 191-220

  Schwartzman, Micah ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

Author keywords

Gaus; political liberalism; public justification; public reason; Rawls

Indexed keywords

EID: 34247465253     PISSN: 1470594X     EISSN: 17413060     Source Type: Journal    
DOI: 10.1177/1470594X04042963     Document Type: Article

References (79)

1. For this ideal of public reason, see John Rawls, ‘The Idea of Public Reason Revisited’, in Collected Papers, edited by Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), pp. 573–615 [hereafter cited as ‘Public Reason Revisited’]; Political Liberalism (New York: Columbia University Press, 1996), especially ‘Introduction to the Paperback Edition’, and Lecture IV [hereafter cited as PL]; and Justice as Fairness: A Restatement (Cambridge, MA: Belknap Press, 2001), especially §9, p. 26.
2. For examples of this line of argument, see Kent Greenawalt, Religious Convictions and Political Choice (Oxford: Oxford University Press, 1988), especially Chs 6-8; Peter de Marneffe, ‘Rawls's Idea of Public Reason’, Pacific Philosophical Quarterly 75 (1994): 232-250; Philip L. Quinn, ‘Political Liberalisms and their Exclusion of the Religious’, in Religion and Contemporary Liberalism, edited by Paul J. Weithman (Notre Dame: Notre Dame University Press, 1997): 138-161; Fred M. Frohock, ‘The Boundaries of Public Reason’, American Political Science Review 91 (1997): 833-844; and David A. Reidy, ‘Rawls's Wide View of Public Reason: Not Wide Enough’, Res Publica 6 (2000): 49-72; and John Horton, ‘Rawls, Public Reason and the Limits of Liberal Justification’, Contemporary Political Theory 2 (2003): 5-23.
3. Rawls, ‘Public Reason Revisited’, p. 585; PL, p. 225.
4. See Lief Wenar, ‘Political Liberalism: An Internal Critique’, Ethics (October 1995): 32-62; Erin Kelly and Lionel McPherson, ‘On Tolerating the Unreasonable’, Journal of Political Philosophy 9 (2001): 38-55. For a reply to this sort of objection, see Larry Krasnoff, ‘Consensus, Stability, and Normativity in Rawls's Political Liberalism’, Journal of Philosophy 95 (1998): 269-292, especially p. 279, n. 8 (answering Wenar). For an excellent response to Kelly and McPherson, see Jonathan Quong, ‘The Rights of Unreasonable Citizens’ (forthcoming in Journal of Political Philosophy).
5. See, e.g. Michael Sandel, ‘A Response to Rawls’ Political Liberalism’, in Liberalism and the Limits of Justice, 2nd edn (Cambridge: Cambridge University Press, 1998), pp. 202–210. See also, Stephen Mulhall and Adam Swift, Liberals and Communitarians 2nd edn (Oxford: Blackwells, 1996), pp. 234–235; Simon Clarke, ‘Contractarianism, Liberal Neutrality and Epistemology’, Political Studies 47 (September 1999): 627-642; and Joseph Chan, ‘Legitimacy, Unanimity and Perfectionism’, Philosophy & Public Affairs 29 (Winter 2000): 5-42.
6. The literature here is vast and continually expanding. See, e.g. Nicholas Wolterstorff, ‘The Role of Religion in Decision and Discussion of Political Issues’, in Robert Audi and Nicholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (New York: Roman & Littlefield, 1997), pp. 67–120; Paul J. Weithman, Religion and the Obligations of Citizenship (Cambridge: Cambridge University Press, 2002); and Christopher Eberle, Religious Convictions in Liberal Politics (Cambridge: Cambridge University Press, 2002).
7. Kent Greenawalt, Religious Convictions and Political Choice, Ch. 8, esp. pp. 154f; Greenawalt, Private Consciences and Public Reasons (Oxford: Oxford University Press, 1995).
8. Jeremy Waldron, ‘Religious Contributions in Public Deliberation’, San Diego Law Review 30 (Fall 1990): 817-848. For a direct reply to Waldron, see Lawrence Solum, ‘Novel Public Reasons’, Loyola of Los Angeles Law Review 29 (1996): 1459-1485.
9. Bruce Ackerman, ‘Political Liberalisms’, The Journal of Philosophy (1994): 364-386.
10. See Rawls, PL, Lecture VI, §7.1, pp. 240–241.
11. Rawls, PL, p. 243. In the ‘Introduction to the Paperback Edition’, Rawls says that he did not intend this passage to be an argument for a qualified right to abortion, although it does represent his opinion. The express purpose of the original footnote was to demonstrate how a comprehensive doctrine might ‘run afoul of public reason’. See his comments in PL, p. lvf., n. 31; or ‘Public Reason Revisited’, p. 605, n. 80.
12. As Philip Quinn writes, ‘Some who agree with Rawls about the values at stake will claim that a fetal right to life is required to give substance and force to that value’. See Quinn, ‘Political Liberalisms and their Exclusion of the Religious’, p. 150; also de Marneffe, ‘Rawls’ Idea of Public Reason’, p. 234f.
13. This is obviously an enormous assumption. However, my purpose here is not to argue the issue of abortion but simply to illustrate one type of incompleteness. For contrasting perspectives on the question of whether a reasonable balance of political values must support at least a qualified right to abortion, see Judith Jarvis Thomson, ‘Abortion: Whose Right?’, Boston Review (Summer 1995) and Peter de Marneffe, ‘Rawls's Idea of Public Reason’, especially secs. 3-4, pp. 239–243.
14. The following discussion of inconclusiveness owes much to Gaus's account of public justification in Justificatory Liberalism (Oxford: Oxford University Press, 1996), especially secs. 9.3-9.4, pp. 144–158 [hereafter cited as JL].
15. See, Gaus, JL, p. 148. Cf. John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971), pp. 358f., revised edition Oxford University Press, 1999, p. 315 (hereafter cited as TJ, with rev. ed. page numbers in brackets).
16. The argument for this, which I cannot defend here, is the idea that, generally speaking, individuals have authority over determinations about what they have reason to believe. If political principles are to be imposed on them, despite their disagreement, those principles must be justified in a way that overcomes the presumption in favour of their individual epistemic authority. See Gaus, JL, sec. 9.3.3, pp. 149–152. For a similar argument, see Colin Bird, ‘Mutual Respect and Neutral Justification’, Ethics 107 (October 1996): 62-96, pp. 78f.
17. See Joseph Raz, Morality of Freedom (Oxford: Clarendon Press, 1986), Ch. 13, especially pp. 333f. For criticism of Raz and other incomparabilists, see Ruth Chang, ed., ‘Introduction’, Incommensurability, Incomparability, and Practical Reason (Cambridge, MA: Harvard University Press, 1997): 1-34. For the view that vagueness is the only plausible explanation for incomparability, see John Broome, ‘Is Incommensurability Vagueness?’ in Chang, Ch. 4, pp. 67–89.
18. Quinn, ‘Political Liberalisms and their Exclusions of the Religious’, p. 150.
19. Gaus, JL, p. 156.
20. See Rawls, TJ, p. 61 [53]; also, Brian Barry, ‘How Not to Defend Liberal Institutions’, in Liberalism and the Good, edited by Bruce R. Douglas et al. (New York: Routledge, 1990): 3-58, p. 44.
21. See Gaus, JL, Ch. 10, especially sec. 10.2.
22. For different perspectives on the jurisprudence of the First Amendment religion clauses, see David Richards, Toleration and the Constitution (Oxford: Oxford University Press, 1986), Ch. 5; Michael Perry, Religion in Politics (Oxford: Oxford University Press, 1997), Ch. 1; Amy Gutmann, ‘Religion and the State in the United States: A Defense of Two-Way Protection’, in Obligations of Citizenship and Demands of Faith, edited by Nancy Rosenblum (Princeton: Princeton University Press, 2000): 127-164.
23. Gaus, JL, p. 158.
24. Reidy, ‘Rawls's Wide View of Public Reason’, p. 65.
25. There may also be permutations of these two types of incompleteness, for example, where a person is inconclusively justified in believing that public reason results in nested indeterminacy. Although I do not pursue this possibility in depth, it may have important implications for establishing the burden of proof in arguments about incompleteness. See sec. 3.2 for further discussion.
26. Rawls, PL, pp. 54–58.
27. For the distinction between cost and difficulty, see Cohen, If You're an Egalitarian, How Come You're So Rich? (Cambridge, MA: Harvard University Press, 2000), p. 171.
28. Gaus, JL, p. 155.
29. For the idea of a ‘sufficiently credible belief’, see Gerald Gaus, ‘The Rational, the Reasonable, and Justification’, Journal of Political Philosophy 3 (1995): 232-256, pp. 250–252.
30. Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), p. 161; also Thomas Christiano, ‘The Significance of Public Deliberation’, in Deliberative Democracy, edited by James Bohman and William Rehg (Cambridge, MA: MIT, 1999): 243-277, p. 276, n. 7; Chan, ‘Legitimacy, Unanimity, and Perfectionism’, p. 7, n. 7; Roberto Alejandro, The Limits of Rawlsian Justice (Baltimore: Johns Hopkins University Press, 1998), p. 134.
31. Rawls, TJ, p. 5 [4]; Rawls, PL, Lecture I, §6.1, pp. 35f.
32. Rawls, Justice as Fairness, §3.2, p. 9; cf. Rawls, PL, pp. 35f.
33. Rawls, PL, pp. liif. Rawls writes, ‘Accepting the idea of public reason and its principle of legitimacy emphatically does not mean, then, accepting a particular conception of justice down to the last details of the principles defining its content. We may differ about these principles and still agree in accepting a conception's more general features. We agree that citizens share in political power as free and equal, and that as reasonable and rational they have a duty of civility to appeal to public reason, yet we differ as to which principles are the most reasonable basis of public justification. The view I have called “justice is fairness” is but one example of a liberal political conception; its specific content is not definitive of such a view’. PL, p. 226.
34. Rawls, ‘Public Reason Revisited’, p. 582.
35. Rawls, PL, p. 230. This is consistent with what Rawls says in Part II of TJ, where he writes, ‘Now the question of whether legislation is just or unjust, especially in connection with economic and social policies, is commonly subject to reasonable differences of opinion’. TJ, § 31, pp. 198f. [174].
36. These points are explored more fully in an excellent discussion by David Estlund, ‘The Survival of Egalitarian Justice in John Rawls's Political Liberalism’, Journal of Political Philosophy 4 (1996): 68-78.
37. Gaus, JL, pp. 232f.
38. Rawls, PL, pp. 232–233.
39. Rawls, ‘Public Reason Revisited’, p. 579.
40. Rawls, PL, p. 235.
41. Micah Schwartzman, ‘Towards a Defence of Public Reason’ (D.Phil. thesis, University of Oxford, 2003), pp. 57–58.
42. For a recent example of this sort of reply, see T.M. Scanlon, ‘Rawls on Justification’, in The Cambridge Companion to Rawls, edited by Samuel Freeman (Cambridge: Cambridge University Press, 2003), p. 163. For an important response to Scanlon, see Jonathan Quong, ‘The Scope of Public Reason’ (forthcoming in Political Studies).
43. Rawls, PL, p. 215; for discussion, see Stephen Mulhall and Adam Swift, Liberals and Communitarians, p. 227.
44. Rawls, PL, lvi.
45. See, for example, Simon Caney, ‘Antiperfectionism and Rawlsian Liberalism’, Political Studies 43 (1995): 248-264, p. 250.
46. For criticism of attempts by John Finnis and others to argue on nonreligious grounds against the morality of homosexual relationships, see Perry, Religion and Politics, pp. 82–96.
47. See Judith Jarvis Thomson, ‘A Defense of Abortion’, Philosophy & Public Affairs 1 (1971): 47-66.
48. Greenawalt, Religious Convictions and Political Choice, pp. 154f.
49. Robert George, who argues that the prohibition of abortion can be justified on publicly accessible grounds, thinks that restrictions on abortion in cases of rape and incest are a ‘close call’. For what it is worth, I think his arguments for this view, which depend on extending the rule of double effect to cover abortion in these (but not other) cases, are dubious to say the least. For George's view, see his essay on ‘Law, Democracy, and Moral Disagreement: Reciprocity, Slavery, and Abortion’, in Deliberative Politics: Essays on Democracy and Disagreement, edited by Stephen Macedo (Oxford: Oxford University Press, 1999): 184-197, esp. p. 196, n. 21. For criticism of George's claim (following Finnis) that, aside from cases of rape and incest, the general issue of abortion is ‘not even a close call’, see the reply by Gutmann and Thomson in the same volume, at pp. 268–270; also Stephen Macedo, ‘In Defense of Liberal Public Reason: Are Slavery and Abortion Hard Cases?’, in Natural Law and Public Reason, edited by Robert P. George and Christopher Wolfe (Washington, DC: Georgetown University Press, 2000): 31-45. A fairly balanced discussion of these issues can be found in Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard University Press, 1996), pp. 73–77, 85-90.
50. Rawls, PL, p. 56.
51. Rawls, ‘Public Reason Revisited’, p. 584.
52. Rawls, PL, pp. 224, 245.
53. Reidy, ‘Rawls's Wide View of Public Reason’, p. 65.
54. Greenawalt, Religious Convictions and Political Choice, p. 147.
55. Reidy, ‘Rawls's Wide View of Public ReasonRawls's Wide View of Public Reason’, p. 67.
56. Rawls, PL, p. liii.
57. Here I follow Ronald Dworkin's criticism of claims about indeterminacy in, Philosophy & Public Affairs 25 (1996): 87-139.
58. David Richards, ‘Book Review’, Georgia Law Review 23 (1989): 1189-1200, p. 1192.
59. Gaus, JL, p. 225.
60. Robert Audi, ‘Religion and the Ethics of Political Participation’, Ethics 100 (1990): 386-397, pp. 395f.
61. Rawls, ‘Public Reason Revisited’, p. 585.
62. Reidy, ‘Rawls's Wide View of Public Reason’, p. 68.
63. Cass Sunstein and Edna Ullmann-Margalit, ‘Second-Order Decisions’, Ethics 110 (1999): 5-31, sec. III.D.
64. See Jon Elster, Sour Grapes: Studies in the Subversion of Rationality (Cambridge: Cambridge University Press, 1983), pp. 16–18; Shaun Hargreaves Heap et al., The Theory of Choice (Oxford: Blackwell, 1992), pp. 14–21.
65. Re A (Children) (Conjoined Twins) [2000] 4 All ER 961.
66. Reidy, ‘Rawls's Wide View of Public Reason’, p. 64.
67. See Amy Gutmann and Dennis Thompson, ‘Moral Conflict and Political Consensus’, Ethics 101 (1990): 64-88; David B. Wong, ‘Coping with Moral Conflict and Ambiguity’, Ethics 102 (1992): 763-784; Frederick Schick, ‘Coping with Conflict’, Journal of Philosophy 85 (1988): 362-375.
68. Gutmann and Thompson, ‘Moral Conflict and Political Consensus’, pp. 82f.
69. Although for criticism of this suggestion, see Gaus, JL, p. 184.
70. The institutional implications of public justification are discussed in Rawls, PL, Part III; Brian Barry, Justice as Impartiality (New York: Oxford University Press, 1995), Ch. 4; and perhaps most systematically in Gaus, JL, Part III. For an attempt to justify democracy on the basis of its unique ability to create incentives for public reasoning, see Richard Vernon, Political Morality: A Theory of Liberal Democracy (London: Continuum, 2001), especially Chs 2-4.
71. Rawls, TJ, p. 362 [318].
72. Cf. Rawls, PL, pp. lv-lvii, 241.
73. Andrew Williams, ‘The Alleged Incompleteness of Public Reason’, Res Publica (2000): 199-211.
74. For the distinction between ‘picking’ and ‘choosing’, see Edna Ullman-Margalit and Sidney Morganbesser, ‘Picking and Choosing’, Social Research 44 (1977): 757-783.
75. Elster, Solomonic Judgements (Cambridge: Cambridge University Press, 1989), p. 116 (italics in the original).
76. For examples, see Solomonic Judgements, Ch. 2.
77. Anthony Laden defends this view in his book Reasonably Radical (Ithaca: Cornell University Press, 2001), p. 123. Laden writes, ‘By hypothesis, there are no decisive public reasons that reject the outcome, and so I do not have substantive grounds for raising a deliberative challenge. This leaves the possibility that I might object to a decision procedure that allowed people to rely on nonpublic reasons as tiebreakers. Since the alternative in this narrow range of cases is that people vote hypocritically or arbitrarily, it seems as if I have good public reasons to allow some nonpublic reasons to play this kind of limited role. At the same time, I have reason to reject allowing just any kind of nonpublic reasons to play this role. Reasons of narrow self-interest, for instance, might still be unacceptable’. I have three objections to Laden's argument. First, he does not present an argument against deciding arbitrarily; nor does he consider that there might be public reasons for endorsing a random decision procedure. Second, the possibility of deciding arbitrarily means that citizens do not have to be hypocritical. They do not have to appeal to nonpublic reasons and then pretend they voted based on public reasons. They can defend their decisions in good conscience by saying that the fairest or most legitimate way to resolve the indeterminacy was by deciding arbitrarily. Third, Laden does not explain what kinds of nonpublic reasons count as legitimate tie-breakers. Without some test to determine which nonpublic reasons are acceptable, I believe his view is open to objections based on examples similar to the one about organ allocation presented in the text below.
78. Here I follow Williams, ‘The Alleged Incompleteness of Public Reason’, p. 210.
79. For discussion, see Joseph Raz, Practical Reason and Norms 2nd edn (Oxford: Oxford University Press, 1990), especially secs. 1.2, 2.2, and the ‘Postscript to the Second Edition’.