Disagreement, asymmetry, and liberal legitimacy

Politics, Philosophy & Economics

Volumn 4, Issue 3, 2005, Pages 301-330

  Quong, Jonathan ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

John Rawls; perfectionism; political liberalism; public reason; reasonable pluralism

Indexed keywords

EID: 34248042676     PISSN: 1470594X     EISSN: None     Source Type: Journal    
DOI: 10.1177/1470594X05056606     Document Type: Article

References (36)

1. John Rawls, Political Liberalism (New York: Columbia University Press, 1996).
2. See Bruce Brower, ‘The Limits of Public Reason’, Journal of Philosophy 91 (1994): 21-2; Simon Caney, ‘Anti-Perfectionism and Rawlsian Liberalism’, Political Studies 42 (1995): 258; Simon Caney, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’, in Pluralism and Liberal Neutrality, edited by Richard Bellamy and Martin Hollis (London: Frank Cass, 1999), pp. 19–36; Joseph Chan, ‘Legitimacy, Unanimity and Perfectionism’, Philosophy and Public Affairs 29 (2000): 20-22; Simon Clarke, ‘Contractarianism, Liberal Neutrality, and Epistemology’, Political Studies 47 (1999): 637-41; Gerald F. Gaus, ‘Reasonable Pluralism and the Domain of the Political: How the Weaknesses of John Rawls's Political Liberalism can be Overcome by a Justificatory Liberalism’, Inquiry 42 (1999): 266-72; Michael Sandel, Liberalism and the Limits of Justice, 2nd edn. (Cambridge: Cambridge University Press, 1998), pp. 202–10.
3. The asymmetry objection can also be applied to versions of liberal neutrality that do not rely on an idea of reasonable disagreement, but rather on some version of epistemological scepticism about the good, such as the theory offered by Brian Barry. I do not believe Barry's justification of liberal neutrality is defensible, and I believe the asymmetry objection may be one way of demonstrating this fact. For Barry's views, see Justice as Impartiality (Oxford: Oxford University Press, 1995), pp. 166–88. For examples of the asymmetry objection applied to Barry, see Simon Caney, ‘Impartiality and Liberal Neutrality’, in Impartiality, Neutrality and Justice: Re-reading Brian Barry's Justice as Impartiality, edited by Paul Kelly (Edinburgh: Edinburgh University Press, 1998), pp. 87–107; Clarke, ‘Contractarianism, Liberal Neutrality and Epistemology’, pp. 634–7.
4. This is the solution favoured by many of those who have pressed the asymmetry objection. See Caney, ‘Anti-Perfectionism and Rawlsian Liberalism’, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’; Chan, ‘Legitimacy, Unanimity and Perfectionism’; Clarke, ‘Contractarianism, Liberal Neutrality, and Epistemology’; Sandel, Liberalism and the Limits of Justice.
5. Rawls, Political Liberalism, p. xx.
6. Sandel, Liberalism and the Limits of Justice, p. 203.
7. Some authors have made a distinction between two different levels at which the asymmetry objection can operate. At one level, they argue, the burdens of judgement apply to substantive disagreements about justice between citizens. At another level, they argue that the burdens of judgement apply equally to the contractual method Rawls proposes to use in constructing a conception of justice, and so the asymmetry objection resurfaces at this higher level of philosophical abstraction. See, for example, Clarke, ‘Contractarianism, Liberal Neutrality, and Epistemology’, pp. 639–41. I do not believe the second version is an instance of the asymmetry objection at all since it cannot function as an internal critique of political liberalism, only as an external one. I address this in more detail in section V.
8. Chan, ‘Legitimacy, Unanimity and Perfectionism’, pp. 10–20. Also see Caney, ‘Anti-Perfectionism and Rawlsian Liberalism’, pp. 251–2.
9. Again, both Chan, ‘Legitimacy, Unanimity and Perfectionism’ and Caney, ‘Anti- Perfectionism and Rawlsian Liberalism’ make this point.
10. Sandel, Liberalism and the Limits of Justice, p. 210.
11. John Rawls, ‘The Idea of Public Reason Revisited’, in Collected Papers, edited by Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), p. 583. Also see Rawls, Political Liberalism, pp. xlviii-xlix, 226.
12. Rawls, Political Liberalism, pp. 383–4.
13. Sandel, for example, asserts that Rawls must believe that ‘while there is a fact of pluralism about distributive justice, there is no fact of reasonable pluralism’. See Sandel, Liberalism and the Limits of Justice, p. 205.
14. This approach might seem especially attractive as it parallels Rawls's recent comments that all reasonable political conceptions of justice must (1) contain certain basic liberal rights and freedoms, (2) assign special priority to those rights, and (3) ensure that all citizens have the resources to make use of those freedoms. In other words, he now seems to admit that it is unreasonable to disagree with this basic liberal framework, but reasonable to disagree about most other matters of justice, in particular distributive justice. See Rawls, ‘The Idea of Public Reason Revisited’, pp. 583–4; Rawls, Political Liberalism, pp. xlviii-xlix.
15. See Rawls, Political Liberalism, p. 235; John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), p. 91.
16. For an example of political liberalism that relies on empirical support, see George Klosko, Democratic Procedures and Liberal Consensus (Oxford: Oxford University Press, 2000). Klosko also appears willing to concede that some moderate perfectionist principles are compatible with political liberalism. See George Klosko, ‘Reasonable Rejection and Neutrality of Justification’, in Perfectionism and Neutrality: Essays in Liberal Theory, edited by Steven Wall and George Klosko (Oxford: Rowman and Littlefield, 2003), p. 189 n. 44.
17. For a version of this response, see Steven A. Leece, ‘Contractualism and Liberal Neutrality: A Defence’, Political Studies 51 (2003): 524-41. Other theorists who have urged abandoning the burdens of judgement as a component of reasonableness for different reasons include Catriona McKinnon, Liberalism and the Defence of Political Constructivism (Houndmills, Basingstoke: Palgrave, 2002); Leif Wenar, ‘Political Liberalism: An Internal Critique’, Ethics 106 (1995): 41-8.
18. This matches the description offered in Rawls, Political Liberalism, p. 241.
19. Someone could object that Mike is not being unreasonable because the issue of recreational drug use is not a constitutional essential or matter of basic justice, and thus Mike is not under the duty of civility in this case. I do not accept this response for two reasons: (1) I believe it is a constitutional essential since criminalizing recreational drugs is a serious violation or infringement of the right to privacy and (2) because, contra Rawls, I believe that the duty of civility ought to apply to all political questions and not just constitutional essentials and matters of basic justice. For reasons of space, I cannot argue these points in detail here, although I have discussed the second point elsewhere. See Quong, ‘The Scope of Public Reason’.
20. For more on inconclusiveness and indeterminacy in public justification, see Gerald F. Gaus, Justificatory Liberalism (Oxford: Oxford University Press, 1996), pp. 151–8, 180-2; Micah Schwartzman, ‘The Completeness of Public Reason’, Politics, Philosophy & Economics 3 (2004): 191-220; Andrew Williams, ‘The Alleged Incompleteness of Public Reason’, Res Publica 6 (2000): 199-211.
21. This, I believe, is a problem with both Brian Barry's and George Klosko's accounts of liberal legitimacy. See Klosko, ‘Reasonable Rejection and Neutrality of Justification’; Barry, Justice as Impartiality. For the asymmetry objection applied to multiple versions of the ‘reasonable rejection’ condition, see Caney, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’, pp. 22–30.
22. Rawls, Political Liberalism, p. 137 (emphasis added).
23. See, for example, Caney's endorsement of political proceduralism as a way of responding to reasonable disagreement about the good life. See Caney, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’, pp. 30–33. For different accounts of why the existence of inconclusiveness about principles of justice need not threaten a liberal ideal of legitimacy, all of which stress the importance of second-order decision procedures, see: Gaus, Justificatory Liberalism; Schwartzman, ‘The Completeness of Public Reason’; Williams, ‘The Alleged Incompleteness of Public Reason’. I agree that second-order procedural mechanisms are a valuable and legitimate means of responding to reasonable disagreement, but only when those disagreements are also justificatory. Without this additional condition, there seems no reason not also to use second-order procedural mechanisms as a way of legitimating perfectionist policies.
24. See Rawls's reply to Habermas in Rawls, Political Liberalism, pp. 429–31.
25. Thanks to Rebecca Stone for helping in the formulation of this paragraph.
26. Caney also presses this type of objection, using the example of the death penalty. See Caney, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’, p. 28.
27. As mentioned earlier, the same is true if we consider things from the opposite perspective - there is clearly a public value (the right to life) which underlies the pro-life position, and so the pro-choice advocate must accept that many (but not all) pro-life positions are reasonable ones. For Rawls's opinions on the reasonable balance of political values in the abortion dispute, see Rawls, Political Liberalism, pp. lv-lvi n. 31.
28. Judith Jarvis Thompson, for example, has famously argued that an absolutist stance regarding the foetus's right to life is deeply implausible. See Judith Jarvis Thompson, ‘A Defence of Abortion’, Philosophy and Public Affairs 1 (1971): 44-66.
29. These are the two routes open to anyone who endorses the political liberal commitment to finding principles that are acceptable to reasonable people, not just moderate perfectionists. See Rawls, Political Liberalism, pp. 39–40. My discussion of these two alternatives owes much to the excellent and detailed discussion by Larry Krasnoff, ‘Consensus, Stability, and Normativity in Rawls's Political Liberalism’, Journal of Philosophy 95 (1998): 281-3.
30. Rawls, Political Liberalism, pp. 39–40. As Krasnoff notes, this objection has been pressed against Rawls by Habermas, although he persuasively argues that Habermas is mistaken in doing so. See Krasnoff, ‘Consensus, Stability, and Normativity in Rawls's Political Liberalism’.
31. Rawls's arguments about an overlapping consensus do not commit him to the position that there actually is such a consensus. Rather, Rawls's arguments are only intended to show that a reasonable consensus is possible. Again, see Krasnoff, ‘Consensus, Stability, and Normativity in Rawls's Political Liberalism’.
32. There is the additional question of whether any contractualist model can be properly classified as perfectionist, even if it produces perfectionist outcomes. Chan argues that it is plausible to do so because (1) it would still represent a form of political perfectionism, even if it was not a form of philosophical perfectionism, and (2) because, within the contractualist model, the participants would be justifying their positions by reference to perfectionist reasons. I am not wholly convinced by Chan's arguments on either of these points, but cannot pursue the issue here. See Chan, ‘Legitimacy, Unanimity and Perfectionism’, pp. 34–8.
33. John Rawls, A Theory of Justice, revised edn. (Oxford: Oxford University Press, 1999), pp. xvii-xviii.
34. An anonymous reviewer suggested that one might incorporate perfectionist values into the concept of primary goods. Although I cannot fully respond to this suggestion, it is worth noting that primary goods are not completely independent from a conception of the good; they are simply based on a ‘thin theory of the good’, one which is grounded in a political conception of citizens as free and equal, possessing the two moral powers, and having certain higher-order interests. See Rawls, Political Liberalism, pp. 178–80. Whether this conception of the good can be made ‘thicker’ without excluding some reasonable views is a question that is beyond the scope of this article, although I have tentatively pursued this question elsewhere. See Jonathan Quong, ‘Cultural Exemptions, Expensive Tastes, and Equal Opportunities’, Journal of Applied Philosophy, forthcoming.
35. As an anonymous reviewer has pointed out, providing a justification of this kind may well run contrary to the spirit of Political Liberalism since Rawls himself has never claimed to be offering such a justification. Rawls is not trying to convince people to be reasonable. He is only showing us what follows if we do conceive of ourselves this way. His theory is, in this way, much narrower than is commonly supposed. For useful discussion on this point, see Anthony Simon Laden, ‘The House that Jack Built: Thirty Years of Reading Rawls’, Ethics 113 (2003): 367-90.
36. Rawls, Political Liberalism, p. 58. 55. Chan in particular is explicit about the compatibility of perfectionism with contractualism. Caney does not explicitly endorse contractualism, but he does accept that reasonable persons who disagree should be treated with respect and that legitimacy requires that we seek political principles which enjoy the widespread support of reasonable persons. Sandel also does not explicitly endorse contractualism, but he does suggest that the strategy of reflective equilibrium pursued by Rawls could also be used to show that some conceptions of the good are more reasonable than others. See Chan, ‘Legitimacy, Unanimity and Perfectionism’, pp. 34–8; Caney, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’, p. 30; Caney, ‘Anti-Perfectionism and Rawlsian Liberalism’, p. 259; Sandel, Liberalism and the Limits of Justice, p. 207.