The sincerity of public reason

Journal of Political Philosophy

Volumn 19, Issue 4, 2011, Pages 375-398

  Schwartzman, Micah ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 79954987391     PISSN: 09638016     EISSN: 14679760     Source Type: Journal    
DOI: 10.1111/j.1467-9760.2010.00363.x     Document Type: Article

References (82)

1. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), p. liii.
2. See, e.g., Elizabeth Wolgast, "The demands of public reason,"Columbia Law Review, 1936-49, 94 (1994) at p. 1343.
3. Eduardo M. Peñalver, "Is public reason counterproductive?"West Virginia Law Review, 110 (2007), 515-44 at pp. 533-4.
4. See Kent Greenawalt, Religious Convictions and Political Choice (Oxford: Oxford University Press, 1988), pp. 154-5.
5. Wolgast, "The demands of public reason," p. 1944.
6. Andrew R. Murphy, "Rawls and a shrinking liberty of conscience,"Review of Politics, 60 (1998), 247-76 at pp. 258-60.
7. Rawls, Political Liberalism, pp. 226, 242, 253, 390; John Rawls, "The idea of public reason revisited,"Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), pp. 578, 581, 585.
8. See Joshua Cohen, "Deliberation and democratic legitimacy,"The Good Polity, ed. Alan Hamlin and Philip Pettit (Oxford: Blackwell, 1989), p. 24.
9. Samuel Freeman, Deliberative democracy: A sympathetic comment,"Philosophy & Public Affairs, at pp. 375, 382., 29, 371-418.
10. See Stuart Hampshire, "Sincerity and single-mindedness,"Freedom of Mind (Oxford: Clarendon Press, 1972), pp. 232-56.
11. Elizabeth Markovits, "The trouble with being earnest: deliberative democracy and the sincerity norm,"Journal of Political Philosophy, 14 (2006), 249-69.
12. See David Reidy, "Rawls's wide view of public reason: not wide enough,"Res Publica, at pp. 57-63., 6 (2000), 49-72.
13. See Gerald Gaus, "The place of religious belief in public reason liberalism,"Multiculturalism and Moral Conflict, ed. Maria Dimova-Cookson and Peter Stirk (New York: Routledge, 2009), pp. 19-37.
14. John M. Kang, "The case for insincerity,"Studies in Law, Politics and Society, 29 (2003), 143-64 at p. 148.
15. Kent Greenawalt, Private Consciences and Public Reasons (Oxford: Oxford University Press, 1995), pp. 163-4.
16. John M. Kang, "The irrelevance of sincerity: deliberative democracy in the supreme court,"St. Louis University Law Journal, 48 (2004), 305-25 at p. 318.
17. This assumption is controversial. It has been challenged most forcefully by Gerald Gaus, who has developed a convergence conception of public justification that does not require shared reasons. See Gerald Gaus, Justificatory Liberalism (Oxford: Oxford University Press, 1996), ch. 9.
18. Gerald Gaus and Kevin Vallier, "The roles of religious conviction in a publicly justified polity,"Philosophy & Social Criticism, 35 (2009), 51-76. Although I believe convergence conceptions face serious obstacles involving considerations of feasibility, social unity, and completeness, I cannot pursue these arguments here. For criticism of Gaus's view and a defense of the idea that public justification must proceed from shared reasons.
19. see Jonathan Quong, Liberalism Without Perfection (Oxford University Press, forthcoming.
20. For some formal features of a general publicity condition, see Micah Schwartzman, "Judicial sincerity,"Virginia Law Review, 94 (2008), 987-1027 at pp. 1005-8.
21. see also David Luban, "The publicity principle,"The Theory of Institutional Design, ed. Robert Goodin (Cambridge: Cambridge University Press, 1996), pp. 154-98.
22. Rawls, Political Liberalism, pp. 66-7.
23. John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge: Harvard University Press, 2001), p. 121.
24. For the educative role of political institutions, see Rawls, Political Liberalism, pp. 71, 163.
25. Joshua Cohen, "A more democratic liberalism,"Michigan Law Review, 92 (1994), 1503-46 at p. 1531 ff.
26. Rawls, Political Liberalism, p. 68 n. 21.
27. This example is borrowed from Gaus, Justificatory Liberalism, p. 138 ff.
28. Here I rely on Rawls's idea of reasonableness, which has two basic aspects: (i) the willingness to propose and act according to fair terms of social cooperation; and (ii) recognition of the burdens of judgment. See Rawls, Political Liberalism, pp. 48-58.
29. "Public Reason Revisited," p. 578.
30. Kant proposed a test of hypothetical publicity according to which: "All actions relating to the rights of others are wrong if their maxim is incompatible with publicity." For Kant, publicity is a necessary condition of moral action. An action is moral only if, in revealing its grounds, one would not thereby make that action self-defeating.
31. Immanuel Kant, Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), p. 347.
32. This has not prevented some deliberative democrats from endorsing a strong publicity condition. For example, James Bohman writes, "Agreements have... 'strong' publicity if the deliberative process actually shapes the decision and if its justification is in fact known by all citizens.... [P]ublicity admits of degrees, and any democratic mechanism requires strong publicity for decisions to be legitimate." Bohman, Public Deliberation: Pluralism, Complexity and Democracy (Cambridge: MIT Press, (emphasis added), 2000), p. 37.
33. As Mill wrote, "Publicity... is no impediment to evil nor stimulus to good if the public will not look at what is done; but without publicity, how could they check or encourage what they were not permitted to see?" John Stuart Mill, On Liberty and Other Essays, ed. John Gray (Oxford: Oxford University Press, 1991), p. 228.
34. For recent contributions to this literature, which take into account normative and empirical developments, see Robert E. Goodin, Innovating Democracy (Oxford: Oxford University Press, 2008).
35. esp. ch. 5; José Luis Martí, "The epistemic conception of deliberative democracy defended,"Deliberative Democracy and Its Discontents, ed. Samantha Besson and José Luis Martí (London: Ashgate, 2006), pp. 27-56.
36. Alvin Goldman, "Argumentation and social epistemology,"Journal of Philosophy, 91 (1994), 27-49 at p. 30 n. 4.
37. See James Fearon, "Deliberation and discussion,"Deliberative Democracy, ed. Jon Elster (Cambridge: Cambridge University Press, at pp. 49-52, 1998), 44-68.
38. See Thomas Christiano, "The significance of public deliberation,"Deliberative Democracy, ed. James Bohman and William Rehg (Cambridge, MA: MIT Press, 1997), p. 248.
39. Gaus, Justificatory Liberalism, pp. 147-8.
40. Hampshire, "Sincerity and Single-Mindedness," p. 245 ff.; see also Markovits, "Trouble with being earnest," 257-8.
41. Hampshire, "Sincerity and single-mindedness," p. 246.
42. See Bernard Williams, "Deciding to Believe,"Problems of the Self (Cambridge: Cambridge University Press, 1973), p. 150 ff.
43. Note that A is only required to give what she believes is a sufficient reason to justify p. She is not obligated to give the best possible reason(s). Although it might be desirable to provide such reasons, it may be difficult, if not impossible, to fulfill that demand given reasonable limits on our epistemic capacities. For a defense of sufficiency as the proper standard of political justification, see Gerald Gaus, "The Rational, the reasonable, and justification,"Journal of Political Philosophy, 3 (1995), pp. 232, 252-4.
44. I have placed "R1?p" in parentheses to denote that A believes more than the one-way inferential justification from R1 to p. A believes all of the things indicated in the text above.
45. As noted in Section I, if construed to require actual publicity, a strong publicity condition may be extremely demanding. Since SPJ incorporates a version of this condition, the resulting principle might also be unreasonably onerous in requiring ordinary citizens to give public reasons for every act of political advocacy. Let me briefly mention two possible responses to this objection. First, SPJ could be weakened by substituting a condition of public availability for the actual publicity requirement, allowing A to advocate p iff A (i) believes (R1?p) and (ii) (R1?p) is publicly available. On this variant of the principle, A could advocate p, provided the justification for p has been disclosed in the public domain. The second possibility is to limit the principle's scope of application. In its strong form, SPJ may apply only to certain public officials, perhaps those who have role-based obligations to give public justifications for their actions. I develop an argument along these lines as applied to judges in Schwartzman, "Judicial Sincerity,"op cit.
46. For this type of justification, see Gaus and Vallier, "Roles of religious conviction," pp. 58-9.
47. Again, for a preliminary argument to this effect, see Quong, Liberalism Without Perfection.
48. SPJ does not preclude all forms of deception, since it only requires that citizens offer reasons that they believe sufficient. It does not also prohibit them from offering reasons they do not believe. I have argued elsewhere that when citizens offer political justifications on the basis of reasons they do not share, they must disclose that fact to prevent manipulation and deceit. See Micah Schwartzman, "On reasoning from conjecture" (unpublished manuscript).
49. Robert Audi has argued for a principle of secular motivation, which says that "one has a (prima facie) obligation to abstain from advocacy or support of a law or public policy that restricts human conduct, unless in advocating or supporting it one is sufficiently motivated by (normatively) adequate secular reason." Robert Audi, Religious Commitment and Secular Reason (Cambridge: Cambridge University Press, 2000), p. 96 (original italics).
50. Robert Audi, Religious Commitment and Secular Reason (Cambridge: Cambridge University Press, 2000), p. 96 (original italics).
51. Robert Audi, "The separation of church and state and the obligations of citizenship,"Philosophy & Public Affairs, 18 (1989), 259-96 at p. 282-3.
52. Robert Audi, "Religious commitment and secular reason: a reply to Professor Weithman,"Philosophy & Public Affairs, 20 (1991), 66-76 at p. 74.
53. In some contexts, it may not be disrespectful to provide others with reasons one does not share. Schwartzman, "On reasoning from conjecture," pp. 6-7.
54. One could imagine a pro-choice analogue to Beth, who holds the same religious beliefs about life beginning at conception but who does not believe that her views about abortion can be supported by public reason. For example, Susan Estrich seems to take this view. She believes that life begins at conception. For her, "It is a religious belief, firmly held, mine to follow. I would not dream of imposing it on anyone else, any more than I would tell them who or how to worship. I would fight with all my energy to keep my government from imposing it even on me, a believer." Estrich, "The justice of candor,"Texas Law Review, 74 (1996), 1227-9.
55. Beth's details are adapted from a similar example given by Paul Weithman, "The separation of church and state: some questions for Professor Audi,"Philosophy & Public Affairs, 20 (1991), 52-65 at pp. 59-60.
56. Martin Luther King, Jr., "The ethical demands for integration,"A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr., ed. James Melvin Washington (San Francisco: Harper & Row, 1986), p. 118.
57. Beth could relate her religious views to her public reasons in at least two ways. Like King, she might ground her public reasons in deeper religious values. Alternatively, she might have two independent sets of reasons. She might be motivated by religious reasons to advocate restricting abortion, but she might also believe that an entirely distinct set of public reasons justifies her position. On this second view, her political position is over-determined by religious and public reasons. Both sets of reasons support her position, but they are conceptually independent. For reasons explained in the text, political liberalism allows for both possibilities.
58. See Rawls, Justice as Fairness, p. 121.
59. Reidy, "Rawls's wide view," p. 58. Gerald Gaus takes a similar position. In earlier work, however, Gaus endorsed the view that satisfying an actual publicity condition is necessary to establish a victorious or conclusive public justification.
60. See Gaus, Justificatory Liberalism, p. 148. He now seems to have revised his position and largely abandoned that view.
61. Gaus, Religious belief in public reason liberalism, 25-30.
62. Gaus and Vallier, Roles of religious conviction.
63. See Reidy, "Rawls's wide view," p. 58.
64. See Gaus, "Religious belief in public reason liberalism," pp. 26-30.
65. Reidy, "Rawls's wide view," p. 60.
66. Cf. Paul Weithman, Religion and the Obligations of Citizenship (New York: Cambridge University Press, 2002), p. 110.
67. Reidy, "Rawls's wide view," p. 60.
68. Justification aims to resolve disagreement by offering others arguments that they can reasonably accept. The point is not simply to convince others to agree, but rather to agree for the right reasons. Thomas Nagel puts the point nicely: "[A]rguments that justify may fail to persuade, if addressed to an unreasonable audience; and arguments that persuade may fail to justify." Nagel, "Moral conflict and political legitimacy,"Philosophy & Public Affairs, 16 (1987), 215-40 at p. 218.
69. I recognize that, under certain non-ideal conditions, citizens and public officials may have reason to violate a principle of public sincerity. The difficult question of whether, and to what extent, this and other principles of public reason apply under non-ideal conditions is one I cannot pursue here. For further discussion, and for an argument that deliberative principles and norms of civility apply with greater force to public officials in formal contexts, even under a range of non-ideal conditions, see David Estlund, Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2007), ch. 10, esp. pp. 201-4. I thank Jon Quong and Andrew Lister for pressing this issue, which deserves more attention.
70. See Wolgast, "The demands of public reason," p. 1943.
71. Cf. Andrew Lister, "Public reason and democracy,"Critical Review of International Social and Political Philosophy, 11 (2008), 273-89 at p.283.
72. See, e.g., Julia C. Martinez, "Christian Scientists reverse stance,"Denver Post, March 16 (2001), 2D. It is a mistake to underestimate the responsibility that conscientious citizens take upon themselves to advocate positions that others can reasonably accept, even when their deepest religious convictions are at issue. On this point, I am indebted to Robert Doughtie.
73. What counts as reasonable effort here is a difficult question. One answer is to say that citizens are not expected to expend as much effort as, say, legislators or executives. The expectations placed on judges may be even higher. But this is a large and complicated issue that I cannot pursue here. For discussion, see Kent Greenawalt, Private Consciences and Public Reasons, chs 12-4.
74. Reidy, "Rawls's wide view," p. 61.
75. Greenawalt, Religious Convictions and Political Choice, p. 152.
76. Greenawalt's actual objection is broader than this. He argues, first, that counterfactual reasoning about public justification is impossible, and, second, that requiring such reasoning is morally objectionable. I am only concerned with the first of these arguments here. The latter argument is based, in part, on a claim about the indeterminacy of public reasons. For a response to that claim, see Schwartzman, "The completeness of public reason,"Politics, Philosophy & Economics, 3 (2004), 191-220.
77. On this point, see Audi, Religious Commitment and Secular Reason, ch. 5.
78. Michael Perry, Under God? Religious Faith and Liberal Democracy (Cambridge: Cambridge University Press, chs 4-6, 2003).
79. This is the "civilizing force of hypocrisy." See Elster, "Deliberation and constitution making,"Deliberative Democracy, pp. 97-122 at p. 111.
80. For this objection, see Markovits, "Trouble with being earnest," pp. 267-8.
81. for a helpful response, see Eric MacGilvray, Reconstructing Public Reason (Cambridge: Harvard University Press, 2004), pp. 194-8.
82. For the distinction between hopeless and non-hopeless normative theories, and for a defense of aspirational moral principles, see Estlund, Democratic Authority, ch. 14.