Consent and the legitimacy of punishment: Response to Brettschneider

Political Theory

Volumn 35, Issue 6, 2007, Pages 806-810

  Lovett, Frank ^a  

^a WASHINGTON UNIVERSITY   (United States)

Author keywords

Consent; Contractarianism; Discursive dilemma; Punishment

Indexed keywords

EID: 35649004456     PISSN: 00905917     EISSN: 15527476     Source Type: Journal    
DOI: 10.1177/0090591707307332     Document Type: Article

References (13)

1. See especially John Rawls, Political Liberalism (New York: Columbia University Press, 1993);
2. T. M. Scanlon, "Contractualism and Utilitarianism," in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982);
3. and T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998). Other versions of liberal contractarianism can be found in the works of Brian Barry, Thomas Nagel, Samuel Scheffler, and (arguably) Jürgen Habermas.
4. Rawls, Political Liberalism, 137.
5. See Frank Lovett, "Can Justice Be Based on Consent?" Journal of Political Philosophy 12, no. 1 (2004): 79-101.
6. Following the usual convention, my discussion will be framed in the language of what people would or would not "reasonably reject," rather than what they might reasonably accept, though (pace Scanlon and some others) I don't think this matters.
7. Note that the hypothetical nature of the question does not bother me, as it has others: see especially Ronald Dworkin, "The Original Position" (1973), in Reading Rawls, ed. Norm Daniels (Stanford, CA: Stanford University Press, 1989).
8. For a reply to Dworkin's famous complaint, see Cynthia Stark, "Hypothetical Consent and Justification," Journal of Philosophy 97 (2000): 313-34.
9. Or, at any rate, not unless they are prepared to accept the view that thinking about consent is a mere heuristic device, in which case its value as such, should be openly discussed.
10. As Ian Shapiro writes, "[O]ne person's consensus is often another's hegemony." Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999), 14.
11. This is an instance of what is called the "discursive dilemma," which is itself only one example of the general problem that individually reasonable or rational beliefs do not always aggregate into collectively reasonable or rational beliefs. For a recent review, see Christian List, "The Discursive Dilemma and Public Reason," Ethics 116 (2006): 362-402.
12. For example, see Josh Cohen, "Deliberation and Democratic Legitimacy" (1989),
13. in Deliberative Democracy, ed. James Bohman and William Rehg (Cambridge, MA: MIT Press, 1997), 81-82.