Public justification and the limits of state action

Politics, Philosophy and Economics

Volumn 9, Issue 2, 2010, Pages 151-175

  Lister, Andrew ^a  

^a QUEEN S UNIVERSITY   (Canada)

Author keywords

Coercion; Legitimacy; Liberal neutrality; Public reason

Indexed keywords

EID: 77949538703     PISSN: 1470594X     EISSN: 17413060     Source Type: Journal    
DOI: 10.1177/1470594X09345680     Document Type: Article

References (98)

1. Jeremy Waldron, 'Theoretical Foundations of Liberalism', Philosophical Quarterly 147 (1987): 128.
2. Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford and New York: Clarendon Press and Oxford University Press, 1991), p. 78.
3. Thomas Nagel, 'Moral Conflict and Political Legitimacy', Philosophy and Public Affairs 16 (1987): 223.
4. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 139, 214.
5. Charles Larmore, 'The Moral Basis of Political Liberalism', Journal of Philosophy 12 (1999): 606-7.
6. Jonathan Quong, 'Disagreement, Asymmetry, and Liberal Legitimacy', Politics, Philosophy and Economics 3 (2005): 301.
7. I will use terms such as 'ideal of public justification' and 'principle of public reason' interchangeably. Strictly speaking, the principle of public reason has a narrower role in Rawls's theory - that of helping determine the practical implications of principles of justice already on hand. When citizens disagree about the implications of principles, a common commitment to shared modes of reasoning nonetheless reassures them that they are all indeed interpreting common principles, and not arguing from comprehensive doctrines. As this reference to the exclusion of comprehensive doctrines suggests, however, the first stage of Rawls's theory is framed by a demand for public justifiability which Rawls calls the 'liberal principle of legitimacy'.
8. See Rawls, Political Liberalism, pp. xlvi, 136, 216.
9. Whereas Rawls justifies public reason by appeal to liberal legitimacy, I will refer to the latter as itself being a principle of public reason, since it excludes reasons from the justification of the exercise of political power without declaring them to be false or logically irrelevant. In adopting this broad usage, I believe I follow Charles Larmore, who says that 'public reason is not one political value among others', but 'envelops all the different elements that make up the ideal of constitutional democracy'.
10. See Charles Larmore, 'Public Reason', in The Cambridge Companion to Rawls, edited by Samuel Richard Freeman (Cambridge: Cambridge University Press, 2003).
11. Nagel, 'Moral Conflict and Political Legitimacy', p. 229.
12. compare Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), p. 110.
13. and Joseph Raz, 'Facing Diversity: The Case of Epistemic Abstinence', Philosophy and Public Affairs 19 (1990): 37, 43.
14. Simon Caney, 'Liberal Legitimacy, Reasonable Disagreement and Justice', in Pluralism and Liberal Neutrality, edited by Richard Bellamy and Martin Hollis (Ilford: Frank Cass Publishers, 1999), p. 29;
15. Joseph Chan, 'Legitimacy, Unanimity, and Perfectionism', Philosophy and Public Affairs 1 (2000): 5-42.
16. Quong, 'Disagreement, Asymmetry, and Liberal Legitimacy', p. 303.
17. Gerald F. Gaus, 'Liberal Neutrality: A Compelling and Radical Principle', in Perfectionism and Neutrality: Essays in Liberal Theory, edited by Stephen Wall and George Klosko (Lanham, MD: Rowman and Littlefield, 2003), p. 138.
18. Richard Arneson, 'Liberal Neutrality on the Good: An Autopsy', in Perfectionism and Neutrality: Essays in Liberal Theory, edited by Stephen Wall and George Klosko (Lanham, MD: Rowman and Littlefield, 2003).
19. My summary of Gaus's argument draws heavily on Gaus's 'Liberal Neutrality', which presents the public justifiability principle as a 'consensus' rather than a 'convergence' theory (or is at least ambiguous between the two). I have since come to realize that Gaus is in fact committed to a convergence view. The difference between these two approaches concerns the requirement of reasonable acceptability of coercion. The 'consensus' interpretation is that all reasonable, fully rational, and moral (or otherwise) qualified points of view must accept a particular set of reasons that is sufficient to justify some coercive law. The 'convergence' position is that all reasonable or qualified points of view must accept some set of reasons that is sufficient to justify the law, but not necessarily the same set. The consensus view is dominant;
20. see, for example, Rawls, Political Liberalism and David M. Estlund, 'The Insularity of the Reasonable: Why Political Liberalism Must Admit the Truth', Ethics 108 (1998): 252-75.
21. For the distinction itself.
22. see Fred D'Agostino, Free Public Reason: Making It Up as We Go (Oxford: Oxford University Press, 1996), p. 30.
23. and Nagel, 'Moral Conflict and Political Legitimacy', p. 218.
24. Gaus explains what he calls 'the error of consensus' in Gerald F. Gaus and Kevin Vallier, 'The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry and Political Institutions', Philosophy and Social Criticism 1-2 (2009): 56-62.
25. What I call the 'measurement' and 'aggregation' problems apply to both versions, I believe, but some of the arguments in Section 4 may need to be reformulated.
26. Gaus, 'Liberal Neutrality', p. 143.
27. Similarly, Michael Blake argues that although coercion is presumptively forbidden, we can justify it against this presumption by demonstrating that the rule licensing the coercion is not one those coerced could reasonably reject.
28. See Michael Blake, 'Distributive Justice, State Coercion, and Autonomy', Philosophy and Public Affairs 3 (2002): 274-5.
29. As Michael Blake puts it, we justify coercion by showing that the rule licensing the coercion is one to which those coerced could not reasonably withhold their consent.
30. See Blake, 'Distributive Justice, State Coercion, and Autonomy', pp. 274-5.
31. Gaus, 'Liberal Neutrality', pp. 148-9.
32. 'Insofar as any reason is rationally rejectable, the minimal principle of neutrality [T8] deems that reason unacceptable as a justification of government action. Government thus must be neutral with respect to citizens' reasons that are rationally rejectable by others.'
33. See ibid., p. 149.
34. Gaus cites T.H. Green as an advocate of paternalism justified by the claim that much paternalism would be accepted by fully rational moral persons.
35. Ibid., pp. 151-3.
36. Nagel, 'Moral Conflict and Political Legitimacy', p. 231.
37. Thus, after recognizing that reasonable people can disagree over 'levels of public provision of education and health care, social security, defense policy, environmental preservation, and a host of other things that liberal societies determine by legislative action', Nagel argued that in many of these areas citizens can nonetheless appeal to a 'common ground of justification'. People disagree on many such issues due to differences 'in judgment over the preponderant weight of reasons bearing on an issue', rather than (as with religious questions, for example) due to 'a bare confrontation between incompatible personal points of view' or 'a pure confrontation between personal moral convictions'.
38. See ibid., pp. 232-3.
39. Jonathan Quong and Micah Schwartzmann have shown that Rawls's political liberalism is similarly open to reasonable disagreement about matters of justice.
40. See Micah Schwartzman, 'The Completeness of Public Reason', Politics, Philosophy and Economics 2 (2004): 198-203.
41. Quong, 'Disagreement, Asymmetry, and Liberal Legitimacy', p. 316.
42. compare John Rawls, 'The Idea of Public Reason Revisited', in The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), p. 169.
43. Gaus, 'Liberal Neutrality', p. 138,
44. citing Daniel M. Weinstock, 'Neutralizing Perfection: Hurka on Liberal Neutrality', Dialogue 38 (1999): 53.
45. Thomas Hurka, 'Indirect Perfectionism: Kymlicka on Liberal Neutrality', Journal of Political Philosophy 3 (1995): 49.
46. Gerald F. Gaus, Contemporary Theories of Liberalism (Thousand Oaks, CA: Sage, 2003), p. 217.
47. Gerald F. Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996), pp. 180-2.
48. Gaus, Contemporary Theories of Liberalism, p. 216.
49. Chan, 'Legitimacy, Unanimity, and Perfectionism', p. 22.
50. Nagel, 'Moral Conflict and Political Legitimacy', p. 233.
51. compare Caney, 'Liberal Legitimacy, Reasonable Disagreement and Justice', p. 28.
52. Nagel, 'Moral Conflict and Political Legitimacy', p. 234.
53. Blake, 'Distributive Justice, State Coercion, and Autonomy', p. 277.
54. Blake cites Jeremy Waldron, The Right to Private Property (Oxford and New York: Clarendon Press and Oxford University Press, 1988).
55. as well as Shelley v. Kraemer, 334 US 1 (1948), the US Supreme Court case that found that enforcement of contracts involved state action, and hence that constitutional demands for equal protection ruled out enforcement of contracts involving racial restrictions.
56. Gaus, 'Liberal Neutrality', p. 153.
57. Ibid., p. 159.
58. Thanks to Will Kymlicka for pressing this objection.
59. See Steven Wall's distinction between two kinds of perfectionism; Steven Wall, Liberalism, Perfectionism and Restraint (Cambridge and New York: Cambridge University Press, 1998), p. 12.
60. See, for example, Joshua Cohen, 'Institutional Argument is Diminished by the Limited Examination of the Issues of Principle', Journal of Politics 1 (1991): 221-5.
61. Judith Jarvis Thomson, 'Abortion: Whose Right?' Boston Review 3 (1995), cited by Rawls, Political Liberalism, p. lvi n. 31.
62. and Jeffrey Reiman, 'Abortion, Natural Law, and Liberal Discourse: A Response to John Finnis', in Natural Law and Public Reason, edited by Robert P. George and Christopher Wolfe (Washington, DC: Georgetown University Press, 2000).
63. One might argue that there is still the imposition of a conception of the good in the case of abortion. Here, the ambiguity of the term 'conception of the good' becomes important. Above, we were thinking of a conception of what is the best life for me. But if we think in terms of a conception of human flourishing in general, or a comprehensive moral doctrine, then we could try to argue that in the case of abortion, there is still the imposition of a conception of the good. But I think that now the argument has shifted in a subtle way. The state is not imposing on me a particular conception of what is good for me, it is defining the scope of my duty not to harm others according to a contestable moral doctrine about who counts as a person. Is this wrong? To answer 'yes', we need to appeal to the demand for public justifiability. For the intuitions about the wrong of paternalism that were doing the work above will no longer do the same work here.
64. Any heightened standard of justification, such as conclusiveness, must involve a presumption against one of the options, because with a heightened standard, it will be possible that both the cases for and against action fail. The only alternative would be randomization.
65. then we could say that even if we ended up adopting what would otherwise be a reasonably rejectable policy, we did not base our decision on any reasonably rejectable reason, because we did not use any reasons at all - we simply flipped a coin. On randomization as a solution to the potential 'incompleteness' of public reason.
66. see Andrew Williams, 'The Alleged Incompleteness of Public Reason', Res Publica 2 (2000): 210-11.
67. Randomization may seem a sensible option for a series of one-off, local decisions, because in the long run, no one view wins all the time. For an ongoing policy or general rule, however, it will seem unfair that we randomize once, and the policy is set forever more. Periodic re-randomization, or alternation of policies would solve this problem, but at the expense of confusion and uncertainty of various kinds. How would randomization apply to the definition of marriage, for example?
68. A comparison with Rawls's difference principle may be helpful. To justify a given level of inequality, it is not sufficient to show that that the least well off are better off than they would be in a state of nature. To justify all of the inequality, we would have to show that each extra bit of inequality helps, or at least does not harm, theleast well off.
69. 'Will anyone argue that abortion should be left to private judgment, so that people who judge it as homicide are entitled to use force to prevent their fellow citizens engaging in it (just as they are entitled to use force to prevent infanticide or sexual intercourse between adults and eight-year-old boys)?'.
70. See John Finnis, 'Abortion, Natural Law, and Public Reason', in Natural Law and Public Reason, edited by Robert P. George and Christopher Wolfe (Washington, DC: Georgetown University Press, 2000), p. 75.
71. I owe this point to Peter de Marneffe's insightful comments on an earlier version of this article.
72. Charles Taylor, 'What's Wrong with Negative Liberty', in Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985), p. 219.
73. compare H.L.A. Hart, 'Rawls on Liberty and Its Priority', University of Chicago Law Review 3 (1973): 534-55.
74. and Ronald Dworkin, 'What Rights Do We Have?' in Taking Rights Seriously (London: Duckworth, 1978).
75. The last part of this paragraph summarizes a personal communication from Gaus, but for related argument.
76. see Gerald F. Gaus, 'On Justifying the Moral Rights of the Moderns: A Case of Old Wine in New Bottles', Social Philosophy and Policy 1 (2007): 91-3.
77. and Gaus, Justificatory Liberalism, p. 151.
78. Gaus, 'Liberal Neutrality', p. 139.
79. Susan Hurley, Natural Reasons (Oxford: Oxford University Press, 1989), p. 133.
80. Blake, 'Distributive Justice, State Coercion, and Autonomy', p. 272.
81. I draw here on Alistair Macleod, 'Freedom, Autonomy, and Coercion: A Note on Bruce Landesman's "Global Economic Inequality, Partiality, and Coercion"', paper presented at the AMINTAPHIL Conference on 'Coercion, Justice, and Democracy', St Louis, MO, November 2006.
82. Alistair Macleod, 'Coercion, Justice, and Democracy', in Coercion and the State, edited by David Reidy and Walter Riker (London: Springer Science and Business Media, 2008), p. 66.
83. Gaus, 'Liberal Neutrality', p. 141.
84. Ibid., p. 146.
85. Socrates, The Republic, 556b.
86. Gerald F. Gaus, 'The Place of Religious Belief in Public Reason Liberalism' (unpublished, 2007), pp. 18-19.
87. Gaus and Vallier, 'The Roles of Religious Conviction in a Publicly Justified Polity', p. 52.
88. Ibid., p. 63.
89. Peter de Marneffe and Alyssa Bernstein made this point in discussion.
90. Gaus, 'Liberal Neutrality', p. 143.
91. Gaus, 'Liberal Neutrality', p. 149.
92. Edward N. Zalta (editor), 'Kant's Moral Philosophy', The Stanford Encyclopedia of Philosophy, spring 2004 edn. (Stanford, CA: Stanford University, 2004).
93. Weinstock, 'Neutralizing Perfection', p. 55.
94. compare Chan, 'Legitimacy, Unanimity, and Perfectionism', pp. 10-18.
95. Gaus, 'Liberal Neutrality'.
96. Ibid., pp. 157-8.
97. Compare Seana Valentine Shiffrin, 'Paternalism, Unconscionability Doctrine, and Accommodation', Philosophy and Public Affairs 3 (2000): 205-50.
98. Wall, Liberalism, Perfectionism and Restraint, pp. 80, 118.