The rights of unreasonable citizens

Journal of Political Philosophy

Volumn 12, Issue 3, 2004, Pages 314-335

  Quong, Jonathan ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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[No Author keywords available]

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EID: 4344694193     PISSN: 09638016     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2004.00202.x     Document Type: Review

References (60)

1. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), p. 64, n. 19.
2. I should point out a technical distinction here. Citizens who fail in their duty of moral civility in a particular instance (they fail to adhere to the norms of public reason when they ought to) are not necessarily being unreasonable. They may well accept points (1)-(3), but simply have failed to act as those three premises require, or they may mistakenly believe that the duty of moral civility does not apply in their given situation. Being unreasonable entails a definite rejection of one of the three points mentioned.
3. It is clearly possible for citizens who are generally reasonable to make unreasonable demands, and vice versa. Strictly speaking, therefore, it is not the unreasonable citizen who is ignored by public reason, but rather unreasonable views or claims.
4. Marilyn Friedman, 'John Rawls and the Political Coercion of Unreasonable People," The Idea of a Political Liberalism: Essays on John Rawls, ed. Victoria Davion and Clark Wolf (Oxford: Rowman & Littlefield, 2000), p. 23.
5. Rawls, 'The Idea of Public Reason Revisited,' Collected Papers, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999), p. 614. Also see Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), p. 16, n. 8, where he explicitly rejects the type of argument attributed to him by Friedman.
6. Rawls, 'The Idea of Public Reason Revisited,' Collected Papers, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999), p. 614. Also see Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), p. 16, n. 8, where he explicitly rejects the type of argument attributed to him by Friedman.
7. See Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), p. 218.
8. Rawls, Justice as Fairness: A Restatement (Cambridge, Mass.: Harvard University Press, 2001), p. 81.
9. For more on the role of the conception of the person in the original position see Samuel Freeman, 'Reason and agreement in social contract views,' Philosophy and Public Affairs, 19 (1990), 122-57.
10. Erin Kelly and Lionel McPherson, 'On tolerating the unreasonable," Journal of Political Philosophy, 9 (2001), 38-55.
11. Rawls as quoted by Kelly and McPherson. ibid., p. 43.
12. I b i d.
13. For more on the burdens of judgement, see Rawls, Political Liberalism, pp. 54-8.
14. Kelly and McPherson, 'On tolerating the unreasonable," p. 44.
15. Ibid., pp. 49-50.
16. Ibid., p. 45.
17. I b i d.
18. Ibid., p. 44.
19. Rawls, 'The idea of public reason revisited,' Collected Papers, p. 592.
20. See Rawls, Political Liberalism, pp. 59-60.
21. Rawls as quoted by Kelly and McPherson, 'On tolerating the unreasonable,' p. 43.
22. Kelly and McPherson, 'On tolerating the unreasonable,' p. 54.
23. I b i d.
24. Rawls, Political Liberalism, p. 54.
25. Ibid., p. 49, n. 2.
26. This position is also defended by Gerald F. Gaus in Justificatory Liberalism (Oxford: Oxford University Press, 1996), pp. 164-5.
27. Again see Rawls, A Theory of Justice, p. 218. There is also a parallel here with Rawls's theory of international justice, and his argument as to why liberal societies should tolerate nonliberal peoples. Although 'decent societies,' to use Rawls's term, are not initially represented in the second original position used to derive the law of peoples, the principle of international toleration nevertheless applies to them. See Rawls, The Law of Peoples, part II. I should note that I do not agree with much of what Rawls has to say about 'decent societies' in the international system, but this can be set aside for the moment, as it does provide a clear version of the argument I wish to present.
28. Again see Rawls, A Theory of Justice, p. 218. There is also a parallel here with Rawls's theory of international justice, and his argument as to why liberal societies should tolerate nonliberal peoples. Although 'decent societies,' to use Rawls's term, are not initially represented in the second original position used to derive the law of peoples, the principle of international toleration nevertheless applies to them. See Rawls, The Law of Peoples, part II. I should note that I do not agree with much of what Rawls has to say about 'decent societies' in the international system, but this can be set aside for the moment, as it does provide a clear version of the argument I wish to present.
29. We should note that neither Friedman, nor Kelly and McPherson endorse the substantive conclusions in (2) and (3)-rather they are attempting to criticise (1) by claiming that these unacceptable conclusions follow from it.
30. Rawls, Political Liberalism, p. 64, n. 19. Also see A Theory of Justice, pp. 219-20.
31. Rawls, Political Liberalism, p. 64, n. 19. Also see A Theory of Justice, pp. 219-20.
32. Rawls, Political Liberalism, p. 348.
33. Rawls, Justice as Fairness, p. 186.
34. Ibid., pp. 192-202.
35. The experience of the United States, especially the American South, in the period between the Civil War and the present day is, I think, a compelling example of a generally liberal democratic society which nevertheless allowed unreasonableness (in the form of racism) to spread unchecked from generation to generation, and as a result African-Americans suffered terrible abuses of human rights and dignities.
36. For the difference between undefeated and victorious public reasons see Gaus, Justificatory Liberalism, pp. 144-58.
37. I believe the containment argument may extend to other categories as well, but I focus here on the education case-the aim is just to show that the containment argument can work in at least one instance, not to enumerate all the possible instances where it might work.
38. For a more extensive discussion of the parental right to educational choice see Eamonn Callan, Creating Citizens (Oxford: Oxford University Press, 1997), ch. 6.
39. Although the example I use here is fictional, it mirrors in some ways the real example of Hasidic Jews used by Jeff Spinner in The Boundaries of Citizenship (Baltimore, Md.: John Hopkins University Press, 1994), pp. 108-12.
40. Again, for more on this see Callan, Creating Citizens, ch. 6; or Amy Gutmann, Democratic Education (Princeton, N.J.: Princeton University Press, 1999).
41. The two cases differ, of course. The state is justified in intervening in the education of the unreasonable community and so the parents' rights are merely infringed, whereas the case of the nosy neighbours involves a rights violation because the intervention is unjustified. For the distinction between infringing and violating a right see Judith Jarvis Thompson, Rights, Restitution and Risk (Cambridge, Mass.: Harvard University Press, 1986), p. 40.
42. Kelly and McPherson, 'On tolerating the unreasonable," p. 54.
43. Spinner-Halev, The Boundaries of Citizenship, pp. 95-9. Also his 'Cultural pluralism and partial citizenship," Multicultural Questions, ed. Christian Joppke and Steven Lukes (Oxford; Oxford University Press, 1999), pp. 65-86; and his Surviving Diversity (Baltimore, Md.: John Hopkins University Press, 2000).
44. Spinner-Halev, The Boundaries of Citizenship, pp. 95-9. Also his 'Cultural pluralism and partial citizenship," Multicultural Questions, ed. Christian Joppke and Steven Lukes (Oxford; Oxford University Press, 1999), pp. 65-86; and his Surviving Diversity (Baltimore, Md.: John Hopkins University Press, 2000).
45. Spinner-Halev, The Boundaries of Citizenship, pp. 95-9. Also his 'Cultural pluralism and partial citizenship," Multicultural Questions, ed. Christian Joppke and Steven Lukes (Oxford; Oxford University Press, 1999), pp. 65-86; and his Surviving Diversity (Baltimore, Md.: John Hopkins University Press, 2000).
46. See The Boundaries of Citizenship, pp. 95-9. I should point out that the Amish are not necessarily unreasonable citizens. The fact that they reject the modern world does not mean they reject the freedom and equality of persons. I am imagining a group that shares the Amish's desire to be left alone, but is also unreasonable.
47. Spinner-Halev's most recent book, Surviving Diversity, focuses on the problems posed by this second category of persons for the United States, although the groups he examines are not always unreasonable in the strict sense. He identifies Protestant fundamentalists, Orthodox Catholics, and Orthodox and Hasidic Jews as conservative religious groups whose goals will often conflict with those of liberalism.
48. See Rawls's discussion of this in Political Liberalism, pp. 340-56.
49. I define hate speech or literature as expression whose primary intention is to deny the freedom and equality of persons.
50. Jeremy Waldron, 'A right to do wrong,' Liberal Rights (Cambridge: Cambridge University Press, 1993), pp. 63-87.
51. Ibid., p. 80.
52. Ibid., p. 82.
53. I should point out that, even if he accepted the distinction, Waldron would not draw the line between wrongness and unreasonableness in the same place as I do here. He appears to believe, for example, that we have a right to join a racist political party and endeavour to get it elected, whereas I will deny that we do have this right. See Ibid., p. 63.
54. Rawls, 'Social unity and primary goods,' Collected Papers, p. 386.
55. Waldron, 'Rights in conflict,' Liberal Rights, pp. 222-3.
56. Ibid., p. 223.
57. Ronald Dworkin focuses on both of these arguments in his defence of the right to hate speech, but does not address the more fundamental objection pressed here. See Dworkin, Sovereign Virtue (Cambridge, Mass.: Harvard University Press, 2000), pp. 365-6.
58. If the Nazis were demanding the suppression of the Communists on containment grounds, that is, claiming that the communists were spreading unreasonable doctrines, then the Nazi speech might be defensible as a legitimate use of political speech. This example is, however, implausible, as it relies on the untenable assumption that the Nazis are sincerely attempting to defend the liberal democratic order.
59. Rights can of course be more or less stringent, depending on the interest they are meant to protect.
60. There will undoubtedly be hard cases that will be difficult to place easily into one of the three categories, but this fact is not a serious objection to the general typology provided here.