Public Reason and Courts 1108766579, 9781108766579

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PUBLIC REASON AND COURTS

Public Reason and Courts is an interdisciplinary study of public reason and courts with contributions from leading scholars in legal theory, political philosophy, and political science. The book’s chapters demonstrate the breadth of ways in which public reason and public justification is currently seen as relevant for adjudicative reasoning and review practices, and includes critical assessments of different ways that the idea of public reason has been applied to courts. It shows that public reason is not just an abstract theoretical concept used by political philosophers, but an idea that spurs new perspectives and normative frameworks also for legal scholars and judges. In particular, the book demonstrates the potential, and the limitations, of the idea of public reason as a source of legitimacy for courts, in a context where many courts face political backlashes and crisis of trust. silje a. langvatn is a Postdoctoral Fellow in Political Philosophy at The University of Bergen, Norway. She has previously held positions as Postdoctoral Fellow at PluriCourts, University of Oslo, Law & Philosophy Fellow at Yale Law School (2016), and Fulbright Visiting Fellow at Harvard Government Department (2009). mattias kumm is the Inge Rennert Professor of Law at New York University School of Law and Research Professor for Global Public Law at the WZB and Humboldt University in Berlin, where he directs the Center for Global Constitutionalism. His research and teaching focuses on basic issues and contemporary challenges in Global, European and Comparative Public Law. He has taught at leading universities wordwide, and has held professorial appointments at Harvard, Yale, and the EUI. He is Founding Co-Editor in Chief of “Global Constitutionalism” (CUP) as well as Jus Cogens (Springer). wojciech sadurski is Challis Professor of Jurisprudence at the University of Sydney and Professor in the Centre for Europe of the University of Warsaw. He has previously held a professorship at the European University Institute, Florence, where he served as head of department of law in (2003–6). He taught at NYU School of Law, Yale Law School, Fordham Law School in New York, and was Chair of the Academic Advisory Board of the Community of Democracies. He has written extensively on the philosophy of law, political philosophy, and comparative constitutional law.

STUDIES ON INTERNATIONAL COURTS AND TRIBUNALS General Editors Andreas Føllesdal, University of Oslo Geir Ulfstein, University of Oslo Studies on International Courts and Tribunals contains theoretical and interdisciplinary scholarship on legal aspects as well as the legitimacy and effectiveness of international courts and tribunals.

Other Books in the Series Mads Andenas and Eirik Bjorge (eds.) A Farewell to Fragmentation: Reassertion and Convergence in International Law Cecilia M. Bailliet and Nobuo Hayashi (eds.) The Legitimacy of International Criminal Tribunals Amrei Müller with Hege Elisabeth Kjos (eds.) Judicial Dialogue and Human Rights Nienke Grossman, Harlan Grant Cohen, Andreas Føllesdal, and Geir Ulfstein (eds.) Legitimacy and International Courts Robert Howse, Hélène Ruiz-Fabri, Geir Ulfstein, and Michelle Q. Zang (eds.) The Legitimacy of International Trade Courts and Tribunals Theresa Squatrito, Oran Young, Andreas Føllesdal, and Geir Ulfstein (eds.) The Performance of International Courts and Tribunals Marlene Wind (ed.) International Courts and Domestic Politics Christina Voigt (ed.) International Judicial Practice on the Environment: Questions of Legitimacy Freya Baetens (ed.) Legitimacy of Unseen Actors in International Adjudication Martin Scheinin (ed.) Human Rights Norms in ‘Other’ International Courts Shai Dothan International Judicial Review: When Should International Courts Intervene? Daniel Behn, Szilárd Gáspár-Szilágyi, and Malcolm Langford (eds.) Adjudicating Trade and Investment Disputes: Convergence or Divergence? Silje A. Langvatn, Mattias Kumm, and Wojciech Sadurski (eds.) Public Reason and Courts

PUBLIC REASON AND COURTS Edited by SILJE A.LANGVATN University of Oslo and University of Bergen

MATTIAS KUMM New York University and WZB Berlin Social Science Center

WOJCIECH SADURSKI University of Sydney and University of Warsaw

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108487351 DOI: 10.1017/9781108766579 © Cambridge University Press 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Langvatn, Silje Aambø, 1976– editor. | Kumm, Mattias, editor. | Sadurski, Wojciech, 1950– editor. Title: Public reason and courts / edited by Silje Langvatn, University of Oslo; Mattias Kumm, New York University; Wojciech Sadurski, University of Sydney. Description: Cambridge, United Kingdom ; New York, NY, USA Cambridge University Press, 2020. | Series: Studies on international courts and tribunals | “This book has been made possible with the generous contribution from PluriCourts-Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, at the University of Oslo, who financed the international workshop Courts and Public Reason in Global Public Law July 2016, and the WZB Berlin Social Science Center who provided the facilities and administrative assistance. Several of the chapters in this volume were presented in early versions at this workshop, while others have been commissioned later.” – ECIP Acknowledgements. | Includes bibliographical references and index. Identifiers: LCCN 2019051929 (print) | LCCN 2019051930 (ebook) | ISBN 9781108487351 (hardback) | ISBN 9781108766579 (ebook) Subjects: LCSH: Political questions and judicial power. | Judicial process. | Public policy (Law) | Rawls, John, 1921–2002 – Influence. Classification: LCC K3367 .P83 2020 (print) | LCC K3367 (ebook) | DDC 340/.11–dc23 LC record available at https://lccn.loc.gov/2019051929 LC ebook record available at https://lccn.loc.gov/2019051930 ISBN 978-1-108-48735-1 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

PUBLIC REASON AND COURTS

Public Reason and Courts is an interdisciplinary study of public reason and courts with contributions from leading scholars in legal theory, political philosophy, and political science. The book’s chapters demonstrate the breadth of ways in which public reason and public justification is currently seen as relevant for adjudicative reasoning and review practices, and includes critical assessments of different ways that the idea of public reason has been applied to courts. It shows that public reason is not just an abstract theoretical concept used by political philosophers, but an idea that spurs new perspectives and normative frameworks also for legal scholars and judges. In particular, the book demonstrates the potential, and the limitations, of the idea of public reason as a source of legitimacy for courts, in a context where many courts face political backlashes and crisis of trust. silje a. langvatn is a Postdoctoral Fellow in Political Philosophy at The University of Bergen, Norway. She has previously held positions as Postdoctoral Fellow at PluriCourts, University of Oslo, Law & Philosophy Fellow at Yale Law School (2016), and Fulbright Visiting Fellow at Harvard Government Department (2009). mattias kumm is the Inge Rennert Professor of Law at New York University School of Law and Research Professor for Global Public Law at the WZB and Humboldt University in Berlin, where he directs the Center for Global Constitutionalism. His research and teaching focuses on basic issues and contemporary challenges in Global, European and Comparative Public Law. He has taught at leading universities wordwide, and has held professorial appointments at Harvard, Yale, and the EUI. He is Founding Co-Editor in Chief of “Global Constitutionalism” (CUP) as well as Jus Cogens (Springer). wojciech sadurski is Challis Professor of Jurisprudence at the University of Sydney and Professor in the Centre for Europe of the University of Warsaw. He has previously held a professorship at the European University Institute, Florence, where he served as head of department of law in (2003–6). He taught at NYU School of Law, Yale Law School, Fordham Law School in New York, and was Chair of the Academic Advisory Board of the Community of Democracies. He has written extensively on the philosophy of law, political philosophy, and comparative constitutional law.

STUDIES ON INTERNATIONAL COURTS AND TRIBUNALS General Editors Andreas Føllesdal, University of Oslo Geir Ulfstein, University of Oslo Studies on International Courts and Tribunals contains theoretical and interdisciplinary scholarship on legal aspects as well as the legitimacy and effectiveness of international courts and tribunals.

Other Books in the Series Mads Andenas and Eirik Bjorge (eds.) A Farewell to Fragmentation: Reassertion and Convergence in International Law Cecilia M. Bailliet and Nobuo Hayashi (eds.) The Legitimacy of International Criminal Tribunals Amrei Müller with Hege Elisabeth Kjos (eds.) Judicial Dialogue and Human Rights Nienke Grossman, Harlan Grant Cohen, Andreas Føllesdal, and Geir Ulfstein (eds.) Legitimacy and International Courts Robert Howse, Hélène Ruiz-Fabri, Geir Ulfstein, and Michelle Q. Zang (eds.) The Legitimacy of International Trade Courts and Tribunals Theresa Squatrito, Oran Young, Andreas Føllesdal, and Geir Ulfstein (eds.) The Performance of International Courts and Tribunals Marlene Wind (ed.) International Courts and Domestic Politics Christina Voigt (ed.) International Judicial Practice on the Environment: Questions of Legitimacy Freya Baetens (ed.) Legitimacy of Unseen Actors in International Adjudication Martin Scheinin (ed.) Human Rights Norms in ‘Other’ International Courts Shai Dothan International Judicial Review: When Should International Courts Intervene? Daniel Behn, Szilárd Gáspár-Szilágyi, and Malcolm Langford (eds.) Adjudicating Trade and Investment Disputes: Convergence or Divergence? Silje A. Langvatn, Mattias Kumm, and Wojciech Sadurski (eds.) Public Reason and Courts

PUBLIC REASON AND COURTS Edited by SILJE A.LANGVATN University of Oslo and University of Bergen

MATTIAS KUMM New York University and WZB Berlin Social Science Center

WOJCIECH SADURSKI University of Sydney and University of Warsaw

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108487351 DOI: 10.1017/9781108766579 © Cambridge University Press 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Langvatn, Silje Aambø, 1976– editor. | Kumm, Mattias, editor. | Sadurski, Wojciech, 1950– editor. Title: Public reason and courts / edited by Silje Langvatn, University of Oslo; Mattias Kumm, New York University; Wojciech Sadurski, University of Sydney. Description: Cambridge, United Kingdom ; New York, NY, USA Cambridge University Press, 2020. | Series: Studies on international courts and tribunals | “This book has been made possible with the generous contribution from PluriCourts-Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, at the University of Oslo, who financed the international workshop Courts and Public Reason in Global Public Law July 2016, and the WZB Berlin Social Science Center who provided the facilities and administrative assistance. Several of the chapters in this volume were presented in early versions at this workshop, while others have been commissioned later.” – ECIP Acknowledgements. | Includes bibliographical references and index. Identifiers: LCCN 2019051929 (print) | LCCN 2019051930 (ebook) | ISBN 9781108487351 (hardback) | ISBN 9781108766579 (ebook) Subjects: LCSH: Political questions and judicial power. | Judicial process. | Public policy (Law) | Rawls, John, 1921–2002 – Influence. Classification: LCC K3367 .P83 2020 (print) | LCC K3367 (ebook) | DDC 340/.11–dc23 LC record available at https://lccn.loc.gov/2019051929 LC ebook record available at https://lccn.loc.gov/2019051930 ISBN 978-1-108-48735-1 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

List of Contributors Preface xi Acknowledgments

page vii xxvii

1 Taking Public Reason to Court: Understanding References to Public Reason in Discussions about Courts and Adjudication 1 s i l j e a . la n g v a t n

part i

public reason in constitutional courts 43

2 Must Laws Be Motivated by Public Reason?

45

micah schwartzman

3 The Importance of Constitutional Public Reason

66

r o n a l d c . d e n ot t e r

4 The Question of Constitutional Fidelity: Rawls on the Reason of Constitutional Courts 90 fr a n k i . m ic he l m a n

5 The Challenges of Islamic Law Adjudication in Public Reason 115 mohammad h. fadel

6 “We Hold These Truths to Be Self-Evident”: Constitutionalism, Public Reason, and Legitimate Authority 143 m a t t i a s ku m m

v

vi

c o n t en t s

7 A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing 164 a l e c s t o n e s w e e t a n d e r i c p a l m er

8 Laws, Norms, and Public Justification: The Limits of Law as an Instrument of Reform 201 j a c o b ba r r e t t a n d g e r a l d f. g au s

part ii

public reason in international courts and tribunals 229

9 European Court of Human Rights in Pursuit of Public Reason? A Study of Lost Opportunities 231 wojciech sadurski

10 The Right to Justification in the Context of Proportionality: A Plea for Determinacy and Stability 256 a l a i n zy s se t

11 “Going Public”: Reasoning and Justification at the World Trade Court 281 sivan shlomo agon

part iii

critical perspective on public reason in courts 321

12 Constitutional Interpretation and Public Reason: Seductive Disanalogies 323 c hr i s t op h er f. zu r n

Index

350

CONTRIBUTORS

ala in zysset is a Lecturer in Public Law, School of Law, University of Glasgow, UK. His main research interests are human rights law and theory (with particular emphasis on the ECHR). In addition to his monograph The ECHR and Human Rights Theory (Routledge, 2016), his work has appeared in International Journal of Constitutional Law, Global Constitutionalism, Canadian Journal of Law and Jurisprudence, Ratio Juris, Criminal Law and Philosophy and Critical Review of International Social and Political Philosophy. ale c st one-swe et is Saw Swee Hock Centennial Professor of Law at the National University of Singapore. Recent books include: Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (OUP, 2019); A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (OUP, 2018), and The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (OUP, 2017). christopher f. zurn is Professor of Philosophy at University of Massachusetts Boston, specializing in social and political philosophy, philosophy of law, and contemporary European philosophy. He is the author of Deliberative Democracy and the Institutions of Judicial Review (Cambridge University Press, 2007) and Axel Honneth: A Critical Theory of the Social (Polity Press). He also co-edited with Boudewijn de Bruin New Waves in Political Philosophy (Palgrave Macmillan, 2009), and, with HansChristoph Schmidt am Busch The Philosophy of Recognition: Historical and Contemporary Perspectives (Rowman and Littlefield, 2010) / Anerkennung (Akadamie Verlag, 2009). He is currently working on the topic of democratic constitutional change. eric m. pa lmer is a litigation associate at Jones Day, an international law firm based in the United States. Before entering private practice, he served as Assistant Solicitor General of the State of Alabama and a law clerk to Judge vii

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William H. Pryor, Jr., of the United States Court of Appeals for the Eleventh Circuit. f r a n k i . m i c h el ma n is Robert Walmsley University Professor, Emeritus, at Harvard University. He is a fellow of the American Academy of Arts and Sciences, a past President of the American Society for Political and Legal Philosophy, and has served on the Committee of Directors for the annual Prague Conference on Philosophy and the Social Sciences and the Board of Directors of the United States Association of Constitutional Law. He is a recipient of the American Philosophical Society’s Phillips Prize in Jurisprudence and the Brigham-Kanner Property Rights Prize. In 1995 and 1996, Professor Michelman served as co-leader of Judges’ Conferences sponsored by the Centre on Applied Legal Studies of the University of the Witwatersrand, devoted to matters of constitutional law in South Africa. In 2011, he delivered the keynote address for a multi-day Conference on “The 20th Anniversary of Israel’s Human Rights Revolution,” at a session held at the Knesset, Jerusalem. gerald gaus is the James E. Rogers Professor of Philosophy and Head of the Department of Political Economy and Moral Science at the University of Arizona. His books include Value and Justification, Justificatory Liberalism, The Order of Public Reason and, most recently, The Tyranny of the Ideal: Justice in a Diverse Society. He is currently writing a book on morality and complexity to be published by Oxford University Press. jacob barrett is a Ph.D. candidate in the Philosophy Department at the University of Arizona. He works mainly on moral and political philosophy, and has published articles in such places as Journal of Political Philosophy, Philosophers’ Imprint, and Economics and Philosophy. His current research focuses on the empirical, normative, and methodological questions that surround social reform, for example, on how societies change across time, when such changes count as genuine improvements, and how we should theorize about such issues. mattias kumm is the Inge Rennert Professor of Law at NYU School of Law as well as Research Professor for Global Public Law at the WZB and Humboldt University in Berlin, where he directs the Center for Global Constitutionalism. His research and teaching focuses on basic issues and contemporary challenges in Global, European and Comparative Public Law. He has taught at leading universities wordwide, and has held professorial appointments at Harvard, Yale, and the EUI. He is Founding Co-Editor in Chief of "Global Constitutionalism" (CUP) as well as Jus Cogens (Springer).

list of co ntr ibutors

ix

mi c a h sc hw a r tz ma n is the Hardy Cross Dillard Professor of Law and Director of the Karsh Center for Law and Democracy at the University of Virginia School of Law. His work on public reason and judicial decision-making includes ‘Official Intentions and Political Legitimacy,’ NOMOS LXI: Political Legitimacy; 'The Sincerity of Public Reason,’ Journal of Political Philosophy; and ‘The Completeness of Public Reason,’ Politics, Philosophy, & Economics. mo hammad h . f adel is Professor at the Faculty of Law, which he joined in January 2006. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law at the University of Chicago. He received his JD from the University of Virginia School of Law. Professor Fadel has published numerous articles in Islamic legal history, Islamic jurisprudence and theology, Islam and liberalism, Islamic political theory, and modern Egyptian law. He has also published in translation an important 13th century work on courts and the legal incidents of judicial decisions in Islamic jurisprudence (The Criterion for Distinguishing Legal Opinions from Judicial Rulings, Yale University Press, 2017) and was the co-editor and a translator of the forthcoming publication of the translation of the Muwattaʾ (forthcoming, Harvard University Press), the earliest extant treatise of Islamic law (8th century CE). r on a l d c . de n otter is Professor of Political Science at California Polytechnic State University San Luis Obispo. He received his B.A. from the University of California, Davis, his J.D. from the University of Pennsylvania Law School, and his Ph.D. from UCLA. His research occupies the space where American constitutional law and normative political theory intersect. In 2009, Cambridge University Press published his first book, Judicial Review in an Age of Moral Pluralism. In 2015, Cambridge University Press published his second book, In Defense of Plural Marriage, which is the first book-length treatment of the constitutional arguments for and against a constitutional right to plural marriage (being able to marry more than one person at the same time). His next major research project involves an explanation of the nature of judicial wisdom. sil j e a.la ng vatn is Postdoctoral Fellow in political philosophy at The Centre for the Study of the Sciences and the Humanities, University of Bergen, Norway. Prior to this she was Postdoctoral Fellow at PluriCourts – Centre for the Study of The Legitimate Roles of the International Judiciary, University of Oslo. She wrote her Ph.D. dissertation on Rawls’ idea and ideal of public reason, and has a

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particular interest in Rawls’ late formulation of political liberalism, international courts, as well as the concept of legitimacy. Her prior publications on public reason include “Should International Courts Use Public Reason?” Ethics & International Affairs, and “Legitimate, but unjust; Just, but illegitimate: Rawls on Political Legitimacy” in Philosophy & Social Criticism. Langvatn has been Law & Philosophy Fellow at Yale Law School (2016), and Fulbright Visiting Fellow at Harvard Government Department (2009). sivan s hlomo agon is an Assistant Professor at the Faculty of Law of Bar-Ilan University. She teaches and researches in the fields of public international law, international economic law, international trade, international courts and tribunals, dispute resolution, global governance, and empirical legal studies. Her recent works include the monograph International Adjudication on Trial: The Effectiveness of the WTO Dispute Settlement System (Oxford University Press, 2019), a co-authored article “The Law of Strangers: The Form and Substance of Other-regarding International Adjudication” in the University of Toronto Law Journal 68 (2018), and an article “Noncompliance, Renegotiation, and Justice in International Adjudication: A WTO Perspective” in Global Constitutionalism 5 (2016). Dr. Shlomo Agon was previously a Fulbright Scholar and Emile Noël Fellow at the Jean Monnet Center for International and Regional Economic Law and Justice, New York University School of Law. She was also a visiting scholar at the World Trade Organization. wojciech sadurski is Challis Professor in Jurisprudence at the University of Sydney Law School and Professor at the University of Warsaw, Centre for Europe. His interests include jurisprudence, legal theory, philosophy of law, political philosophy, constitutional theory, and comparative constitutionalism. His most recent books include Poland’s Constitutional Breakdown (OUP 2019), Constitutionalism and the Enlargement of Europe (OUP 2012), Equality and Legitimacy (OUP 2008), and Rights before Courts (Springer 2005 and 2014). He has previously taught at Yale Law School, the New York University School of Law, Cardozo Law School, Fordham Law School, Cornell Law School, National University of Singapore and the University of Trento. Chairman of the Academic Advisory Board of the Community of Democracies, he is member of a number of boards of think tanks and NGOs.

PREFACE

Since John Rawls brought the term “public reason” into academic circulation in the mid-1990s, public reason has been discussed as a criterion of political and legal legitimacy. The idea of public reason is often formulated as the requirement that a polity’s political and legal impositions must be publicly justifiable – or possible to justify with reasons and reasoning that are accessible and reasonably acceptable to all subjects of the imposition. Requiring laws to be publicly justifiable may seem like a means to ensure that all subjects are taken into account, and thus to prevent laws with morally unacceptable outcomes for some groups and individuals. But the criterion of public reason, or public justifiability, is also associated with the idea that not only do the outcomes of laws and public acts count toward their legitimacy, but also the form and content of their justifications: A law that prohibits a certain religious practice may be perfectly legitimate if it is shown that the practice presents a real danger to public health or safety, whereas other types of justifications – such as racist reasons and animus toward a religion – are seen as weakening the law’s legitimacy or rendering it illegitimate altogether. The role of courts has been a topic in the public reason literature since Rawls famously, and somewhat cryptically, characterized the supreme court in liberal democratic regimes as “the exemplar of public reason.” Rawls saw supreme courts as exemplars, both because they typically refrain from appealing to nonpublic types of reasons, which electorally accountable public officers may be tempted or pressured to use, and because it is the institutional task of constitutional courts to interpret and uphold the constitution. It is furthermore their task to ensure that ordinary acts and legislation are made in accordance with the constitution – which, in liberal democracies, are based on ideas and values that Rawls presumed to be reasonably acceptable to all citizens of such regimes. Rawls also argues that a supreme court can educate other public officials and citizens on the basic political-moral ideas and values of the regime through the reasoning of their opinions in high-profile cases. xi

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However, since Rawls first formulated these ideas, public reason has become one of the most discussed, and most controversial, ideas in political philosophy. A wide range of public reason conceptions have developed, and many of them diverge significantly from those of Rawls, both with regard to how they conceptualize public reason and how they view the role and duties that public reason implies for courts. Moreover, the plurality of approaches to public reason and the ways of relating this idea to judicial practices have further proliferated as the concept of public reason has migrated from philosophy to legal theory to discussions about international courts’ legitimacy. Public Reason and Courts is an interdisciplinary study of public reason and courts with contributions from the perspectives of legal theory, political philosophy, and political science. The book’s chapters demonstrate the breadth of public reason and public justification as relevant for adjudicative reasoning and review practices; they also include critical assessments of the ways that public reason has been applied to courts. Public reason – the book asserts – is not an abstract theoretical concept used by political philosophers but an idea that spurs new perspectives and normative frameworks for legal scholars and judges. In particular, the book demonstrates the potential as well as the limitations of the idea of public reason as a source of legitimacy for courts, specifically within a context in which many courts are facing political backlash and a crisis of trust. The chapters of this book comprise two main clusters of contribution; the first focuses on domestic courts and the other on international courts. These two parts are preceded by a chapter introducing central terms and discussing lines of division in the public reason and courts literature and are followed by a more critical intervention. In Chapter 1 Silje A. Langvatn characterizes the most prevalent public reason approaches to courts in the current literature discussions, with the aim of making these discussions more accessible across disciplinary and intradisciplinary divides. The first section of this chapter focuses on the many meanings attributed to the term “public reason.” The term is often used to refer to reasons and forms of reasoning that the authors believe to be accessible and acceptable to all citizens as a basis of legal and political regulation. Most also connect public reason to political legitimacy, and they argue that basic political and legal norms and institutions must be publicly justifiable in order to be sufficiently legitimate. Yet, as Langvatn shows, authors using the term often have different understandings of who the relevant public is, when and where public reasons are required, and what

preface

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it is that makes reasons and reasoning sufficiently public. And not to be forgotten – authors also have different views on why public justifiability is necessary for political legitimacy. Variations on these questions yield different philosophical conceptions of public reason. However, these philosophical conceptions do not always translate into a specific jurisprudence or into a specific ideal of public reason suitable for courts. Nor does outlining a philosophical conception of public reason necessarily address the question of whether courts are the right institution to review the public justifiability of other public officials’ acts. In the chapter’s second section, Langvatn goes on to speak of “public reason approaches to courts,” meaning the ways in which philosophical conceptions of public reason and jurisprudential approaches tend to correlate in the literature. Langvatn characterizes the public reason approach to courts in general in an inclusive way, subsuming all authors who (1) accept the general idea of public reason, or the idea that legitimate legal and political impositions must be publicly justifiable, while also (2) accepting an “ideal of public reason for courts,” or seeing the idea of public reason or public justifiability as conferring a duty on at least some courts, in some cases, to help secure the public justifiability of at least some types of political and legal impositions. In this chapter, she also limits the discussion to authors who (3) use the term public reason, or related terms about their own normative thinking. On this basis, the chapter then identifies and characterizes six dominant public reason approaches to courts in the literature: “political liberal approach,” “liberal approach,” “classical liberal approach,” “deliberative approach,” “natural law approach,” and “public reason as justification vis-à-vis a broader audience.” The final sections discuss limitations and objections to the proposed taxonomy of public reason approaches to courts. Each of the approaches has subvarieties, and some authors are associated with more than one of these approaches. Langvatn submits that this taxonomy may help make sense of a literature that is often disciplinary insular and enable more precise and fruitful criticisms of the role of public reason for courts. Part I of the book consists of a set of chapters relating the idea of public reason to the practice of domestic high courts in general and domestic constitutional courts in particular. The first three chapters start in the political liberal tradition of John Rawls. Chapter 2 by Micah Schwartzman discusses what implications legislative motivations have for review courts informed by an ideal of public reason: Given that we want courts to review legislation in terms of public

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reason, should these courts review whether a law is sufficiently motivated by public reasons? Or should they only review the extent to which the law can be sufficiently justified with public reasons as such? Should, for example, a court strike down a law if the judges find that it is motivated by animus against a religious minority, even when the lawgiver has officially justified the law with publicly acceptable reasons, such as public safety? The issue of legislative motivation – also referred to as legislative purpose or intent – raises many normative and empirical issues. Schwartzman focuses on an objection against the inclusion of legislative motivation in judicial review: the view that the motivation for a law is irrelevant for determining its moral permissibility. The first section of the chapter discusses this “permissibility objection” in more detail, and the author makes clear that the heart of the matter is whether a morally questionable motivation alone can change the moral status of an act that is otherwise morally permissible. Those who accept the permissibility objection believe that motivations alone cannot be sufficient to change the moral status of an act. Schwartzman goes on to argue that the permissibility objection is mistaken, thus defending the view that a public reason–oriented court can properly engage in judicial review of legislative motivation. First, he argues that an agent’s motivation can, at least in some cases, be directly relevant to its permissibility. The permissibility objection, he argues, draws its plausibility from examples in which agents’ motivations do not determine the moral justifiability and permissibility of their actions. Yet, Schwartzman finds other examples, examples of discriminatory acts that do not produce impermissible harm, but where the motivation for the act itself makes the act morally impermissible. This, he argues, shows that there are instances when agents’ motivations are relevant in ways that the permissibility objection denies. In the next section, Schwartzman turns to examples in which motivation is indirectly, or derivatively, relevant to the moral permissibility of laws. A discriminating law that fails to treat citizens as free and equal has a motivation that is directly and independently relevant for its moral permissibility, but when this legislative motivation is known to the subjects, it may cause an expressive harm that more indirectly adds to the law’s impermissibility. Finally, Schwartzman discusses laws whose legislative motivations include both nonpublic and public motivations (e.g., a law against eating pork that may be motivated both by religious injunction as well as concerns about public health). Schwartzman’s stance is that laws are permissible when they are motivated by at least one sufficient public justification. Laws

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supported by mixed motives may thus be morally permissible, but he also argues that courts in such mixed-motive cases should give such laws careful scrutiny in determining whether they are sufficiently publicly justified. In Chapter 3, Ronald C. Den Otter calls for American legal scholars to realize the relevance of the idea of public reason for law and to develop a conception of constitutional public reason that suits the particulars of the United States’ legal system. Den Otter argues that such a conception of constitutional public reason, at its core, will have to perform an extra check on the public justifiability of the reasons relied on, both in the justices own reasoning and as an extra check on the justifications provided by public officials for contested laws and measures. He presents his own preliminary take on what such a public reason check could amount to. His account emphasizes that judges should avoid nonpublic reasons – such as those that come from or rely on comprehensive religious, moral, and philosophical doctrines that are disputed and those that conflict with the basics of liberal democracy and the idea of persons as free and equal, even in hard constitutional cases. First and foremost, he attempts to alert other legal scholars in different traditions to work out the details of a conception of constitutional public reason. The hope that the public reason approach holds for the United States, Den Otter argues, is that the different, often conflicting constitutional interpretation traditions – such as originalism, living constitutionalism, pragmatism, and judicial minimalism – will engage with the idea of public reason and work out how their own methodology can be made compatible with it. This can, Den Otter argues, help reduce the tensions between these methodologies by helping inform each other and approximate a reflective equilibrium. The second section of the chapter addresses a main objection to such an idea of constitutional public reason, namely that it will be too indeterminate, or too shallow, to provide sufficient normative orientation when judges must answer the most challenging constitutional questions. Den Otter argues that this “indeterminacy objection” cannot be dismissed altogether, yet he attempts to take the sting out of this objection by illustrating that other methods of interpretation are not necessarily more determinate. In Chapter 4 Frank I. Michelman interprets John Rawls’s ideal of public reason as implying a stricter constraint of fidelity to the constitution for judges than for citizens. Unlike judges, citizens are at liberty to base a public justification on what they take to be the best balance of values in the constitution, whereas judges are more bound by the actual

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text and precedent. This looser constitutional constraint for citizens may seem at odds with Rawls’s “liberal principle of legitimacy” – a criterion of political legitimacy that is constitution-centered and says that ordinary laws must be in accordance with a constitution the essentials of which are reasonably acceptable to all citizens. For Rawls the constitution is a set of previously established and publicly recognized terms for the day-to-day exercise of political power. The constitution can thus function as a fixture, a public procedural pact providing a fund of mutually acceptable reasons. As long as an ordinary law or act is in accordance with a mutually acceptable constitution, citizens can accept the ordinary laws and acts as reasonable and legitimate, even when they disagree with them. In light of this, it may seem paradoxical for Rawls’s ideal to have a looser constitutional constraint for citizens when they exercise their political power. To understand this differentiated constraint, Michelman provides a close analysis of Rawls’s liberal principle of legitimacy, and the role that the constitution plays therein. He finds that there are subtle, but important, differences in how this legitimacy criterion is formulated in Rawls’s early and late writings on political liberalism, and that Rawls’s rationale for a looser constraint for citizens connects with the need for the constitution to figure for citizens both as a “fixture” and as a “project.” Michelman concludes that Rawls envisages an institutional division of labor between the Supreme Court and the citizens in which judges are responsible for maintaining the constitution’s function as a fixture, and citizens are to take the lead in keeping the constitution up as an on-going project. For a judge, the guiding conception of public reason must be the political conception of justice that the judge reads out of the existing constitution’s text and its prior history of application. Citizens, however, can press their sundry views on what they think is the most reasonable balance of the values of the constitution so as to always be pushing the constitution toward its “fully justification-worthy state.” Turning to questions of nonideal theory, Chapter 5 by Mohammad H. Fadel raises the question of how a public reason–minded judge should proceed when tasked with applying Islamic law. This question, Fadel notes, may seem strange. Could any conception of public reason accept the legitimacy of religious laws in the first place, and could it adopt Islamic legal doctrines as legitimate rules of decision? Not in ideal theory. Yet, Fadel contends that nonideal theory should speak to the fact that numerous states do in fact incorporate Islamic law as part of their constitutional law, and that courts in liberal democracies without a Muslim majority can also be required to apply Islamic law norms

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(e.g., when the parties that appear before the court have made private agreements based on Islamic law). In such situations, Fadel argues, Rawls’s ideal of public reason can provide useful guidance for judges. Confronted with Islamic law, a public reason–minded judge should first try to identify the political content of the Islamic rule that is to be applied, and thereafter assess whether this can be compatible with a reasonable political conception of justice, one that free and equal citizens can reasonably be expected to accept. If it is compatible, the judge can proceed to apply the rule. If not, the judge should propose a new rule using reasonable conjecture or extrapolating from historical doctrines, a rule that can vindicate both the Islamic political value and the criterion of public reason. Part of the chapter is devoted to showing that it is possible to distinguish between metaphysical doctrines and political commitment in the Sunni Islamic tradition of law. This makes it possible to appeal to the political ideas of Islamic law in a manner coherent with Rawls’s ideal of public reason, which asks us to stay at the level of political-moral ideas and values in political and legal justifications, and to bracket appeal to, and criticisms of, both one’s own and the others’ deeper comprehensive doctrines. In politics and law, we cannot expect all to embrace the same comprehensive doctrine. What we can hope for, and what suffices, is an overlapping consensus on political-moral ideas and values. Fadel characterizes the proposed approach as a limited version of what Rawls calls “reasoning from conjecture,” one that focuses on the political ideas that can be read out of Islamic law and not on its revelatory and metaphysical foundations. In addition, the judges should avoid applying Islamic law qua asserted revealed truth, and also avoid criticizing the truth of Islamic law as a religious or revealed doctrine. Fadel holds that this jurisprudential approach will both reduce tensions between historical doctrines of Islamic law and liberal states, and it will provide a way for courts to reduce political and social conflict around Islamic law. In the last section of the chapter, he discusses a series of cases from Egypt, India, the United States, and the European Court of Human Rights in which judges have failed to abide by such an ideal of public reason, with negative results. In Chapter 6 Mattias Kumm puts forward the basic structure of an argument for a normative theory of public reason–based constitutionalism. He begins by setting out the following propositions: Law makes a claim to authority but does not always have the authority it claims to have; the point of constitutionalism as a normative project is to establish as a condition for legal validity the requirements that law needs to fulfill to actually have the authority it claims to have; and if, finally, law has the

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authority it claims only if it is justifiable in terms of public reason, and if constitutions seek to constitutionalize as a condition for legal validity this standard, what would that require? Kumm first contrasts public reason– based understandings of constitutionalism with conventionalist and democratic voluntarist conceptions of constitutionalism, both of which leave little room for public reason–based justification. He then goes on to discuss what a public reason–based understanding of constitutionalism implies for the foundations, structure, and interpretation of constitutions. Kumm concludes that even though the demands for establishing legitimate authority within a public reason–based framework are ambitious, public reason–based constitutionalism is the heir of the American and French revolutions, and dominant structures of prevailing constitutional practice in liberal democracies can be best explained and justified within such a framework. In Chapter 71 Alec Stone Sweet and Eric Palmer develop a Kantian account of constitutional justice in which the proportionality analysis used by constitutional courts in the process of judicial review plays a key role in securing the publicity and legitimacy of laws, or what Immanuel Kant called a Rightful condition. The first section of the chapter identifies principles and concepts in Kant’s thinking that underpin a Kantian constitutional theory. Two principles are seen as foundational: the Internal Duty of Rightful Honor, which prohibits one from consenting to social arrangements that would permit one to be used as a mere means for others, and the principle of Innate Freedom, which says that all persons have an innate inalienable freedom and are entitled to pursue their chosen ends as long as they do not violate the Rightful Honor along the way. These principles come together in the Universal Principle of Right (UPR), which limits public officials’ authorization to coerce to those acts that can uphold or enable a Rightful condition in which all can exercise their freedom consistently with the freedom of others. Stone Sweet and Palmer argue that these principles imply a rightsfocused civil constitution. However, they remark that Kant himself said remarkably little about the institutions and organizations required to realize a Rightful constitutional condition. Stone Sweet and Palmer’s 1

This chapter is a reprint of Alec Stone Sweet and Eric Palmer, “A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing,” Global Constitutionalism, 6 3 (2017), 377–411. A draft of this article was presented at the Courts and Public Reason in Global Public Law workshop held on July 11–12, 2016, in Berlin and organized by Mattias Kumm, Wojciech Sadurski, and Silje A. Langvatn.

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project in the chapter is to fill this gap, and they propose a structural account of constitutional justice that they see as both consistent with Kant’s ideas and with the basic facts of contemporary, rights-based constitutionalism. The chapter argues further that such a Kantian constitutional order needs both an enumerated bill of rights and a trustee court – a court with strong powers of constitutional review that can render rights effective and be a caretaker of the system. In many constitutional democracies, the people have already authorized such judicial supremacy, and thus placed their freedom in trust. The trustee court’s primary function is to evaluate the reasons that officials give for acts that burden or infringe the exercise of a right, and invalidate acts when these reasons are inadequate. Reasons for rights infringements are inadequate when they do not conform to the UPR or do not uphold or enable a collective freedom for all. Modern charters include two types of rights: absolute rights, which cannot justifiably be burdened or limited because no reason that conforms to the UPR can be given for them, and qualified rights with limitation clauses. Stone Sweet and Palmer argue that, for the latter type of rights, the trustee court should use proportionality analysis because this analysis can operationalize the UPR in the legal reasoning. In this way the trustee court supervises the incremental process through which collective freedom of all under law is constructed. They also argue that in a Kantian system of constitutional justice, the trustee courts must be bound by a set of robust obligations: to protect rights in ways that ensure that public officials act in accordance with the UPR to be accountable for or to justify its rulings with reasons, and to engage in dialogue with those who are vulnerable to their rulings. Stone Sweet and Palmer see these obligations as following from Kant’s requirement that laws must be capable of publicity to be legitimate, where the publicity requirement is read as a presumptive support for a right to justification held by citizens, yielding a corresponding duty for officials to give reasons of burdening rights, reason-giving that should be disciplined by the UPR (e.g., as operationalized in the proportionality analysis). Chapter 8 by Jacob Barrett and Gerald F. Gaus defends public reason liberalism against the criticism that the requirement that laws be publicly justified poses an obstacle to social reform. When public reason liberals argue that laws must be justifiable to each citizen, the criticism goes, they seem to preclude the use of law to improve the justice of the social order: A reasonable minority can block the passage of any law that they do not see as justified. Barrett and Gaus argue that this criticism is premised on

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a popular but empirically false theory of the conditions for effective legal regulation and law as an instrument of justice. On this theory, the law is an autonomous instrument for justice because it shapes behavior primarily through the threat of punishment, and so it can direct recalcitrant citizens to just actions and outcomes through coercive threats. Barrett and Gaus present and criticize two versions of this theory. First, the doctrine of punishment-focused legal centrism and, second, a more nuanced view referred to as moral-focused legal centrism. Barrett and Gaus’s alternative “normative perspective” draws on empirical studies to show that social norms and personal moral convictions are more important for compliance and effective legal regulation than the threat of punishment. The chapter discusses several studies that show that laws effectively regulate behavior when they cohere with social norms but are typically ineffective and sometimes even counterproductive when they conflict with them. Social norms, in turn, are effective when they align with the personal normative convictions of those subject to the norm. This, then, leads to a case for a minimal form of public justification in which members of the norm network, as a matter of fact, overwhelmingly endorse the norm because it aligns with their personal normative convictions. Barrett and Gaus then consider a stronger form of public justification: reflective endorsement by most members of the group. They argue that robustly and publicly justified norms tend to be even more stable and effective than those that are only minimally publicly justified. Later in the chapter, Barrett and Gaus reconsider the charge that a commitment to public justification thwarts the pursuit of greater justice. They reject this charge because empirical findings show that law does not have the autonomy or power that the criticism presupposes. The requirement that laws be publicly justified does not undermine the possibility of using laws as a tool for promoting justice because laws seldom succeed in effectively promoting justice, unless they cohere with social norms that approximate robust public justification. This, Barrett and Gaus argue, also speaks against top-down models of public reason that posit supreme court judges as the key agents in securing the public justifiability of laws. Rawls, for example, characterizes justices as the exemplars of public reason because of their exclusive focus on politicolegal norms when assessing whether a law is publicly justified. Against this, Barrett and Gaus object that laws that meet a politico-legal test of public justification but do not cohere with social norms that approximate robust public justification are neither publicly justified nor effective.

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Part II turns to public reason in international adjudicative bodies and in discussions of the European Court of Human Rights and the World Trade Organization’s dispute settlement system. In Chapter 9 Wojciech Sadurski considers how the European Court of Human Rights (ECtHR), an emerging European constitutional court for human rights, has engaged in scrutiny of legislative aims pursued by national laws interfering with the proclaimed rights. In so far as the Court has, it can be viewed as adopting a standard similar to public reason. However, Sadurski concludes that the Court has almost always eschewed its authority to evaluate the aims of state laws or decisions in this way. On the very few occasions when it has expressed its doubts about the plausibility of the aims cited by the governments concerned, the Court has either refused to attach any weight to these doubts and moved on to the next stage in the analysis (the necessity scrutiny), or it has identified another aim that it found legitimate and, for this reason, moved on to the necessity scrutiny stage. The main burden of the aim scrutiny has therefore shifted to the necessity stage, when the Court has assessed whether the restrictions were necessary (in a democratic society) to attain this aim. Sadurski offers an explanation for this puzzling (as he claims) argumentative maneuver. Challenging the state at the stage of aim scrutiny brings the Court into a head-on collision course with the state and risks weakening the Court’s legitimacy, which is tenuous at the best of times anyway. In turn, postponing the aim scrutiny to a later stage, and hiding it within the much more technical and complex necessity review, helps the Court reduce the reputational losses for a state found eventually to be in breach of the European Convention of Human Rights, and thereby maintain its legitimacy through a shrewd exercise in judicial diplomacy. After all, if the legislative restrictions have been found “unnecessary” to achieve a stated aim, it sounds more like an error on the part of the state; if, in contrast, the state is found to publicly provide an aim that is not credible under the circumstances, it sounds much more like deceit. If you are a state, you would rather be found mistaken than dishonest – suggests Sadurski. But such a replacement of goal scrutiny by the necessity scrutiny has its cost: As Sadurski shows, the necessity scrutiny is imperfect as a device for discerning the true goals of legislation. When necessity is translated into “a pressing social need,” the temptation for the Court is to consider it a self-standing rather than a relational concept, in which case its capacity to ascertain the goals is lost. When necessity is viewed through the prism

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of proportionality, the Court’s capacity for goal ascertainment decreases with the lowering of a standard of proportionality (based on the broadening of the “margin of appreciation”). The less strict a scrutiny of proportionality, the less proportionality serves as a proxy for necessity, in turn reducing the latter standard’s potential as a tool for credible goal ascertainment. Chapter 10 by Sivan Shlomo Agon discusses the World Trade Organization dispute settlement system (WTO DSS) as an example of a prominent international adjudicative body in which the idea of public reason is noticeable. The chapter starts from the premise that the exercise of authority by international courts requires legitimacy; yet, as international courts come to play an ever more significant role in global governance, their traditional source of legitimacy embedded in state consent seems no longer sufficient, and additional grounds are needed to sustain the claim for legitimacy of these empowered international institutions. In this state of play, Shlomo Agon suggests that public reason offers one supplementary source for international courts to enhance their legitimacy by ensuring that the courts’ decisions, as well as the states’ decisions they are called upon to review, are the result of reasons and forms of reasoning that can be reasonably understood and accepted to all subjects affected. Such ideas of public reason and public justification, the chapter shows, are not merely theoretical conceptions of legitimacy and legitimation; rather, they are discernible in the actual practice of at least one key international adjudicative body – the WTO DSS. A close examination of the jurisprudence developed by the DSS over the last two decades or so reveals its attempt to “go public” by drawing on a range of practices often associated with the public reason tradition, especially in cases that go beyond the WTO’s core trade domain to involve “noneconomic” public values (such as environmental protection) in which the system’s legitimacy concerns are intensified. The chapter elaborates how the various substantive and deliberative public reason orientations identified in WTO jurisprudence may be seen not only as a strategic attempt by the DSS to build up and sustain the support for its authority among expanding circles of audiences, but also as a sincere recognition by the DSS of the necessity to expand the normative bases of its legitimacy in a world where its decisions exert effects over a wider range of issues and stakeholders, far beyond member states. At the same time, Shlomo Agon highlights some of the challenges and constraints an international court like the WTO DSS might confront

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in its public reason–giving endeavors. Most notably, the DSS’s case seems to suggest that in situations of friction between the court’s numerous stakeholders, the public of member states still remains the primary audience for whom the DSS’s reasoning and decisions must be accessible and acceptable, an element that effectively limits the ability of this court to go public all the way. In so unfolding the WTO DSS’s public reason account, Shlomo Agon thus aims to illustrate the different forms in which the idea of public reason can be said to apply to international courts as well as to develop a better understanding of the promise, and limitations, embedded in the concept of public reason as a means for international courts to enhance their legitimacy given their unique features and the pluralistic global setting in which they operate. In Chapter 11 Alain Zysset discusses Mattias Kumm’s view that courts’ use of the proportionality test provides an adequate test for the public justifiability of limiting rights. The chapter explores how Kumm’s view is informed by Rainer Forst’s account of the right to justification, and the author argues that the right to justification can provide even further normative guidance for how courts should operate the proportionality test. The chapter begins by offering a brief reconstruction and interpretation of the right to justification. The right to justification requires laws, and also basic political and social norms, to be justified with reasons that are strictly reciprocal and general. Zysset’s reading of Forst says that the right to justification not only provides the basis for mutually biding basic norms and basic structure but also justifies establishing appropriate procedures that help realize individuals’ right to justification and, more specifically, justifies the right to democratic participation. Further, Zysset argues that the right to justification can also help specify a more determinate and stable set of rights/duties and duty-/right-holders that underpin the right to democratic participation. Later in the chapter, the author explores Kumm’s argument that the right to justification can be operationalized in the proportionality context when courts evaluate reasons for restricting rights. While endorsing this approach, Zysset suggests that Kumm has not fully brought out the potential of the right: Kumm gives examples of “excluded reasons” for limiting rights (e.g., teleological, perfectionist, consequentialist reasons), but Zysset argues that Kumm is not explicit about whether the test also helps identify what the right to justification positively requires (i.e., whether the test identifies the rights/duties, and right-/duty-holders that are of particular importance for the pursuit of mutual justifiability

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as a normative ideal). Zysset argues that the right to democratic participation and its procedural preconditions are of such particular importance, and that focusing on this right offers further clarity and determinacy to courts’ use of the proportionality test. The chapter concludes by reconstructing the approach of the European Court of Human Rights to the conflict between the right to freedom of expression and the right to privacy in the proportionality test. Zysset first shows what he takes to be the central role of democratic considerations in the evaluative part of the proportionality test of the ECtHR, and then explains how the Court has linked freedom of expression to democratic participation in that part. Finally, Zysset shows how the Court uses the link between freedom of expression and the right to democratic participation as a basis for justifying restrictions of the right to privacy. This principled reasoning in the ECtHR, Zysset argues, offers an illustration of how the right to justification offers a prism through which we can interpret the ECtHR’s approach to proportionality testing. Chapter 12, the final chapter of the book, takes a more critical approach. Christopher F. Zurn refutes what he calls a surprisingly common strategy among prominent liberal and deliberative democratic theories: the strategy of extolling courts as exemplars of public reason in an attempt to assuage democratic worries about judicial review. This strategy, Zurn argues, builds on an analogy between judicial reasoning and public reasoning that is seductive, but empirically misleading – at least when we examine the opinions and reasoning of the US Supreme Court. The chapter first outlines the legitimacy problem of judicial review and how public reason can be seen as an attempt to deal with this problem. Constitutional courts have the power to strike down laws and acts they see as violating the constitution, and, Zurn argues, in effect these courts take on powers of constitutional legislation. At the same time, courts are institutionally insulated from democratic control and accountability. The legitimacy of court-based constitutional review is therefore often questioned on democratic grounds. Yet, few liberal and deliberative democratic theorists are willing to say that democratic legislation is less important than the protection of individual rights, and they therefore seek a strategy for addressing the institutional tension between democratic authorization and individual rights protections through review courts. The public reason strategy, Zurn argues, has become popular both among deliberative democrats and liberal theorists because it seems to solve the tension in an attractive way. Democracy, on this account, is not just a matter of numbers or majority rule; it also involves

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making decisions based on the best available reasons that are acceptable to all citizens – at least in connection with fundamental political-moral questions and “constitutional essentials.” When constitutional essentials are decided with such public reasons, this confers legitimacy on ordinary laws and decisions. To decide constitutional essentials with public reasons is typically taken to mean that they should not be decided on the basis of sectarian and controversial reasons, but rather on the basis of widely shared abstract political-moral principles. According to Zurn, part of the public reason strategy is to see constitutional courts as a uniquely reason-based institution, a type of institution that is shielded from the corrupting influence of money and power and the need for reelection, a “forum of principle” that is also institutionally tasked with protecting the constitution through the expression of citizens’ constitutive powers. Zurn discusses Rawls’s claim that a supreme court or constitutional court can be seen as an “exemplar of public reason” but also the view of Christopher Eisgruber who defends court-based constitutional review, not just as a rights-protecting counterweight to majoritarian democracy, but as a kind of representative institution that can speak in the name of, and for, the people’s shared political principles. Eisgruber, Zurn argues, sees the constitutional court in a way that is, in some respects, more representative of the true will and interests of the people than the reasoning of democratically accountable branches. While Eisgruber goes further than some in presenting courts as democratic agents, the more general idea that judicial review represents the people’s sovereign precommitment to individual rights as expressed in a legitimacy-conferring social contract is widely accepted, according to Zurn. Zurn then draws on previous work and examines several high-profile constitution-interpreting opinions of the US Supreme Court. What is striking, Zurn argues, is that these opinions very seldom resemble the type of reasoning that public reason theorists attribute to courts. He finds that the opinions do refrain from appealing to comprehensive doctrines, but they do not concentrate on principled political-moral reasoning, as many public theorists seem to think. Rather, the judicial reasoning is dominated by “the technicalia of legal argument,” establishing jurisdiction, outlining precedent, deciding justiciability, and so on. The chapter does not argue that the US Supreme Court never reasons in the way that public reason theorists recommend, or that the court never has the type of educative function they hope for. The argument is that there are disanalogies between judicial reasoning and public reasoning in an overwhelming majority of their constitutional cases, and that this undermines

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the public reason strategy as a way to assuage democratic worries about judicial review. The chapter outlines three institutional determinants that may explain this finding, and it concludes by providing a framework for a program for future empirical research on whether the public reason strategy may be more successfully applied to Hans Kelsen-style constitutional courts and international courts.

ACKNOWLEDGMENTS

This book was made possible with the generous contribution from PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo, which financed the international workshop Courts and Public Reason in Global Public Law in July 2016, and the WZB Berlin Social Science Center, which provided the facilities and administrative assistance. Several of the chapters in this volume were presented in early versions at this workshop while some were commissioned later.

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1 Taking Public Reason to Court: Understanding References to Public Reason in Discussions about Courts and Adjudication silje a. langvatn

Several political philosophers and legal scholars use the term “public reason” in connection with constitutional1 and international courts.2 But what exactly does it mean to say that courts “use public reason,” or that a court respects an “ideal of public reason”? By now, talk of public reason has so proliferated that many wonder if there is anything common to the various uses of the term. Someone who says that a court uses public reason may simply mean that the court searches for common ground, or that the court appeals to reasons and values that are uncontroversial.3 However, political philosophers and legal scholars often use the term in 1

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John Rawls, Political Liberalism (New York: Columbia University Press, 1996); Kent Greenawalt, “On Public Reason,” Chicago-Kent Law Review, 69 3 (1994); Lawrence B. Solum, “Public Legal Reason,” Virginia Law Review, 92 7 (2006); Frank I. Michelman, “Relative Constraint and Public Reason: What is ‘The Work We Expect of Law’?,” Brooklyn Law Review, 67 (2002); Ronald Den Otter, Judicial Review in an Age of Moral Pluralism (Cambridge: Cambridge University Press, 2009); Micah Schwartzman, “Judicial Sincerity,” Virginia Law Review, 94 (2008), 987. Cf. Wojciech Sadurski, “Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities,” Global Constitutionalism, 4 3 (2015); Mattias Kumm, “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review,” Law & Ethics of Human Rights, 4 2 (2010); Mattias Kumm, “The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and Beyond the State,” in Jeffrey L. Dunoff and Joel P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009); Ernst-Ulrich Petersmann, “Human Rights, International Economic Law and ‘Constitutional Justice,” European Journal of International Law, 19 4 (2008); Ernst-Ulrich Petersmann, “Need for a New Philosophy of International Economic Law and Adjudication,” Journal of International Economic Law, 17 3 (2014); Silje A. Langvatn, “Should International Courts Use Public Reason?,” Ethics and International Affairs, 30 3 (2016). Cf. Neil Walker, “Universalism and Particularism in Human Rights: Trade-off or Productive Tension?,” in David Kinley, Wojciech Sadurski, and Kevin Walton (eds.),

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a normative and theoretically informed way, presupposing a normative idea of public reason: the idea that legal and political impositions must be publicly justifiable in order to be legitimate. The normative idea of public reason was for long almost exclusively associated with John Rawls, who connects public reason to courts when he says that the US Supreme Court is the “exemplar of public reason.”4 But since Rawls, a much wider range of ideas and conceptions of public reason has developed: Some reinterpret or modify Rawls’s conception of public reason,5 while others are quite distinct from Rawlsian political liberalism.6 New ways of understanding the relation between public reason and courts have also emerged. Many posit courts as key agents for securing the public justifiability of laws, especially in their capacity of reviewing legislative and administrative acts. Others deny that there is a necessary link between public reason and judicial review, but they argue that judges should ensure the public justifiability of their own reasoning and opinions. Public reason is also discussed as a legitimacy-enhancing strategy that some courts use to enhance their legitimacy in particular issue areas. This chapter starts from the observation that taking public reason to court requires a clearer understanding of the many uses of the term public reason itself, a firmer grasp of the underlying normative ideas and theoretical commitments it often comes with, and more awareness of the range of ways in which normative ideals of public reason are seen as relevant for courts and judicial reasoning. Authors who write on public reason and courts often fail to explicate what they mean when they use the term. This creates considerable confusion about what authors mean, and impedes fruitful exchanges between philosophers and legal scholars. Another challenge is that most of the critical inquiries into the meaning and usefulness of public reason for courts have been directed at Rawls’s version of the political liberal public reason approach, or at straw man versions thereof. This focus on Rawls means that the potential and relevance, as well as the problems, of other public reason approaches to adjudication and courts have often gone unexamined.

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Human Rights: Old Problems, New Possibilities (Cheltenham: Edward Elgar Publishing, 2013). Rawls, Political Liberalism, pp. 231 ff. Cf. Leif Wenar, Samuel Freeman, Paul J. Weithman, Stephen Macedo, Anthony Simon Laden, Micah Schwartzman, Jon Mandle, Jonathan Quong, Lawrence Solum, Ronald Den Otter, David M. Rasmussen, Wojciech Sadurski, Andrew March, Mohammad Fadel, Frank I. Michelman, and Sonu Bedi. Cf. Gerald F. Gaus, Kevin Vallier, Fred Frohock, David Gauthier, Andrew Lister, and John Finnis.

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The first section of this chapter analyzes the term “public reason,” and the meanings attributed to its component parts. The second section characterizes what is distinctive of a normative public reason approach in general, while the third section characterizes what a public reason approach to courts entails. The chapter then outlines six dominant public reason approaches to courts in the recent literature. These public reason approaches are identified and labeled by the emphasis they bring into the discussion about the role of courts and judges in securing public justifiability. The concluding comments discuss some objections and limitations of the proposed taxonomy of public reason approaches to courts.

I Analyzing the Term “Public Reason” The term “public reason” has no established common sense meaning, and its two component parts – “public” and “reason”– are themselves ambiguous. When someone says that “judges ought to use public reason when deciding on constitutional essentials,” the term reason refers to a form of practical reasoning or a form of judgment that is somehow public.7 But the term public reason can also refer to set of reasons or explanations, such as when someone says that “judges should defend coercive laws using only public reasons.” Public reason is public, but public can mean different things. Thus, public reason can refer to a reason, or to a form of reasoning, that is, for example: • • • • • 7

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About public matters. Oriented to the good of the public or the public good.8 Taking the entire public into account. Addressed to the entire public.9 Taking place in a public forum or in a public sphere.10 Rawls, Political Liberalism, p. 212. Rawls notes that ”reason” can also refer to the ability of using practical reason. Ibid. Cf. John Rawls, “The Idea of Public Reason Revisited,” The University of Chicago Law Review, 64 3 (1997), 767. See also Shlomo Agon in Chapter 11 in this volume. This use of the term has been associated with Kant who speaks of “the public use of reason” to refer to the practical use of reason addressed to the general public in Immanuel Kant, “Answering the Question: What is Immanuel Kant “An Answer to the Question: “What Is Enlightenment?” (1784), in James Schmidt (ed.), What Is Enlightenment?: Eighteenth-Century Answers and Twentieth-Century Questions (Berkeley: University of California Press, 1996). Cf. Rawls, “Public Reason Revisited,” pp. 783–784.

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• Being conducted by the public or having emerged through the public’s own discussions or reasoning.11 • Conducted in some public role or capacity (e.g., reasoning as a public official or as a citizen rather than reasoning as a private person). In other words, the term public reason can refer to the public as a site, sphere, or forum but also as a subject matter, an addressee, the subject conducting the reasoning, and role. The term is occasionally used in one of these senses in nonacademic settings. In the normative philosophical literature, however, public reason is typically defined as reasoning and reasons that have a particular epistemic or cognitive status for each person in the public, namely that they are: • Acceptable to the public. Public reasons so understood are seen as public also in the further senses of being: • Known to the public, as opposed to secret or hidden. • Cognitively accessible or understandable to the public. Yet, authors disagree on whether public reasons must be public in the sense of being: • Acceptable to each in the public but where persons can do so for different reasons, or whether public reasons must be • Shared, or shareable, by the public, in the sense that persons can accept the public reason for the same reasons as others in the public. The latter is the more common view. It often connects with the view that reasons can be shared by the public when the reasons have a public form – or rely on widely shared or uncontroversial methods of inquiry, logic, and standards of evidence. Reasons can also be seen as shared in a public insofar as they build on or appeal to substantive ideas and values that are 11

Cf. Rawls who says that “as the reason of free and equal citizens, it is the reason of the public” in Rawls, “Public Reason Revisited,” p. 767. This use of the term public reason is associated with Rousseau who uses the term as a synonym for the “general will” in JeanJacques Rousseau, A Discourse on Political Economy – Understanding the Economic Basis of Liberty (New York: Waking Lion Press, 2006 [1755]), p. 3.

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shared in the public. Such shared substantive ideas and values are typically believed to be public themselves, e.g., ideas and values that are oriented to the good of the public, take the public into account, or have emerged from the public’s own reasoning. As we shall see, there is further disagreement on whether public reasons are reasons that are public in the sense of being: • De facto shared or accepted by the public, or whether it suffices that the reasons are: • Possible to accept for all persons in the public. • Possible to accept for all qualified (reasonable) persons in the public. It is important to see that any reason that is accepted, or acceptable, to the entire public will not be a public reason in the required sense. All persons in Italy may, for example, prefer pizza to hamburgers because they agree that pizza tastes better, but convergence or agreement on the superior taste of pizza is not the kind of public reasons that public reason theorists care about. They speak of public reasons and public reasoning in the context of the public political and legal domain, and in connection with deciding about and justifying shared norms and rules for a public, especially basic political and legal norms in a polity. As we shall see, they do so based on the normative idea that public political impositions must be publicly justifiable – or acceptable to the public of all affected subjects – and the assumption that only reasons and reasoning that are suitably public can ensure such public acceptability. This section has attempted to bring more clarity to what the term public reason typically refers to in the public reason literature. But in order to identify exactly which reasons and which forms of reasoning an author has in mind (e.g., when saying that a court should use public reason), we need to know more about the details of the author’s public reason approach, such as who the author views as the relevant public, what this public is like, and what kind of political and legal impositions the author sees as needing a justification in public reason. To sum up, the term public reason is sometimes used in nonacademic settings to refer to reasons or reasoning that are public in one specific sense, such as being oriented to the public good. Yet, when public reason theorists use the term, they refer to reasons or reasoning that are public

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along several dimensions and at different levels. Yet, deciphering all the ways in which an author sees public reason as public does not always help us identify the set of reasons and types of reasoning that will qualify as public reasons in a case. To do so we may also need to look into the author’s public reason approach, including who the author views as the relevant public, and the moral and political psychology he or she attributes to this public.

II What Does It Mean to Take a Public Reason Approach? To take a public reason approach means subscribing to some normative conception of public reason. In the philosophical literature this is often described as a) accepting some version of the idea of public reason, understood as the idea that political and legal impositions must be publicly justifiable,12 and b) accepting that this requirement of legitimacy confers a duty or ideal of public reason on at least some agents to ensure that exercise of collective power, or political and legal impositions are publicly justifiable. The chapter will limit the discussion to authors who accept both an idea and an ideal of public reason, and who also use the term public reason or associated terms such as “public justification” or “the public use of reason.” Variations on the idea of public reason: To accept the idea of public reason is to accept a certain idea of political legitimacy: The idea that political and legal impositions must be publicly justifiable in order to be either sufficiently or fully legitimate. The idea that legitimate political and legal rule requires the free acceptance of subjects is not unique to the public reason approach. Yet, by specifying that such impositions must be publicly justifiable, public reason conceptions can be seen as providing a way of specifying a more general liberal requirement of acceptability to each. Public reason approaches typically involve a “decentering of the perspective,” in the sense that they shift the focus from what is the “true” basis of legitimate political impositions in some exogenously defined religious, moral, or philosophical doctrine to a focus on the subjects’ own reasons and objections, and what they themselves can accept as appropriate reasons for political and legal impositions. Put differently, public reason approaches seek to avoid justifying impositions in ways that are wholly externally imposed, or projected on the subjects, and to understand justifiability in a more intersubjective and reciprocal way. Most public reason approaches 12

Jonathan Quong, “Public Reason,” in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2017), available at https://plato.stanford.edu/archives/spr2018/entries/pub lic-reason/.

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seek to define the types of reasons, reasoning, and justifications that can be seen as an acceptable and appropriate basis for political and legal impositions. Several authors try to capture what is distinctive for the public reason approach by speaking of “reciprocity in justification,” “reciprocal justifications,” and “reciprocity of reasons.”13 Reciprocity can mean that people in a group give each other a similar advantage in their cooperative schemes. But reciprocity in justification and reasons means that persons in the group give each other justifications and reasons that are valid not only for themselves but also for the other persons of the group when deciding on their common norms and rules. This ascent to reasons – or move to focusing on reciprocity of reasons rather than reciprocity of advantage directly – is an attempt to solve the following problem: that there will be disagreement about what reciprocity of advantage amounts to, or that there is a reasonable disagreement about what political justice requires. However, the turn to reciprocity of reasons is not just motivated by the idea that it is easier to come to agreement on the types of reasons and justifications that are appropriate in politics than on principles of justice. It is also motivated by the view that what is important is not only the content of laws and regulations imposed on persons, but also the motives, reasons, and justifications behind these impositions. Public reasons are reasons and forms of reasoning that are public in the sense that they can provide a publicly acceptable justification of legal and political impositions. Yet, as we have seen, authors have different views on how this set of reasons is best understood. Political philosophers distinguish between two main ways of understanding the content or structure of public reason: the consensus view and the convergence view.14 The consensus view holds that public reasons, or reasons that can yield a public justification of political impositions, must be reasons that are shared by the relevant public or constituency. A strict version of this view says that public justification requires a full or strong consensus, meaning that it must be possible for the affected persons to accept impositions for the same reasons. The strong consensus view typically connects with thinking that laws must be underpinned by reasons that are public in the sense of being general and universalizable. The weak consensus view says that it suffices to show that an imposition can be 13

14

Cf. Rainer Forst, The Right to Justification (New York: Columbia University Press, 2014), p. 214. David Reidy speaks of “reciprocity” in justification in a different sense in David A. Reidy, “Reciprocity and Reasonable Disagreement: From Liberal Democracy to Democratic Legitimacy,” Philosophical Studies, 132 2 (2006), 243–291. Cf. Quong, “Public Reason.”

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justified with reasons that all subjects can agree on as being at least reasonable. On this view the public does not have to agree that the reasons are the best reasons, or that they express the full normative truth about the matter. A prominent variety of this weak consensus approach is found in Rawls’s idea of an “overlapping consensus.” The idea here is that citizens in a liberal democracy can agree that certain political-moral ideas and values – or even a family of political conceptions of justice – familiar from their public political culture, provide a reciprocally acceptable basis for justifications of political impositions.15 On this view an overlapping consensus on a set of political-moral values or political conceptions of justice provides the appropriate basis for public justifications of laws and political decisions. This means that citizens can agree on certain political values and conceptions as the appropriate reasons for determining their basic political rules, while continuing to disagree on which conception of justice is the most reasonable, and also disagree on the deeper doctrinal foundations of the political ideas and values.16 The convergence view is first and foremost associated with Gerald F. Gaus and Kevin Vallier, and it says that legal impositions are sufficiently justified insofar as each person affected by the imposition has a sufficient reason to accept it.17 This view does not deny that shared reasons may yield a public justification for an imposition. But unlike the consensus view it sees convergent justifications as sufficient for public justifiability: It suffices that each affected person has a reason to accept the imposition. A person’s reasons to accept an imposition does not have to be seen as reasonable to others, but it must be accessible or recognizable as a reason. Many conceptions of public reason attempts to define the reasons and reasoning that can ensure publicly justifiable impositions and thus legitimacy. The idea of public reason is perhaps more familiar when formulated negatively, or as a reason-constraining conception of legitimacy: The negative formulation emphasizes that some types of reasons, justifications, and motives for political and legal impositions taint these impositions, or make them illegitimate; namely reasons and motives that are not acceptable to the entire public or constituency as a basis of political and legal impositions. Examples of reasons that are seen as tainting the law may include racist and sectarian reasons and motives. Another example are 15

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In addition to certain methods of inquiry and standards of evidence, or “guidelines of public reason,” as Rawls calls it. Cf. section on Political Liberal Public Reason in Section III. Cf. section on Classical Liberal Public Reason in Section III.

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reasons that are inaccessible to nonbelievers because they are based on intuitions or revelations. Many public reason theorists, like Rawls, think that any reason that is part of, or derives from, a comprehensive religious, moral, or philosophical doctrine will be inappropriate as the public justification for political and legal impositions. This is because they think that persons can reasonably disagree on these doctrines’ truth and their appropriateness as a basis for collective political and legal impositions. As we have seen, another point of contestation is the question of whether public justifiability should be understood as reasons and reasoning that the relevant public actually accepts or de facto shares here and now, or as what the public would ideally accept or share if they had been more rational or reasonable. Defining public reasons as reasons that the public de facto accepts or de facto shares has been criticized for collapsing into an unqualified consent that can legitimize deeply unjust and harmful political and legal arrangements. On the other hand, defining what can be publicly justifiable or acceptable to all subjects in a top-down philosophical theoretical way – for instance, by relying on purely hypothetical consent or idealized acceptance – seems to repackage authors’ own preferred convictions and prejudices as demands of reason. If public reason conceptions idealize the relevant public and the criterion of their acceptance too much, they collapse into a “truth approach” in which the actual persons’ views about what they can accept does not matter. Authors who affirm public reason conceptions also differ in how they arrive at the idea of public reason or come to see public justifiability as a criterion of legitimacy. While some arrive at this idea through reflection on the nature of rationality or morality as such, others start from the value of autonomy, respect or justice, or from reflection on what is required to make a constitutional liberal democracy reasonably just and stable in the long run. However, a widely shared motivation for the public reason approach is what Rawls calls the “fact of reasonable pluralism.” This is the assumption that deep pluralism is unavoidable in liberal societies where citizens are free to think for themselves. In such regimes, the assumption goes, there will be deep disagreements on a range of moral, philosophical, and religious questions. Such disagreements are natural among reasonable persons in a free society, and thus something we must live with and adapt to in political life. Part of the point of a public reason approach, according to Rawls and others who share this assumption, is that an orientation towards public reason and public justifiability can accommodate such pluralism in liberal regimes.18 18

Cf. Quong, “Public Reason.”

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The idea of public reason is typically seen as yielding a necessary, but not a sufficient, criterion of political legitimacy.19 The idea is that the standard of public reason or public justifiability can be used to assess the legitimacy of laws, norms, or acts and decisions within a regime or institution, and also to assess specific institutions or even the entire political-legal regime. Moreover, it also yields a standard for assessing the legitimacy of individuals’ behaviors when they act in an official political or legal capacity. Variations of ideals of public reason: As stated, taking a public reason approach means accepting a conception of public reason that includes both an idea of public reason and some corresponding prescriptive ideal of public reason – or an account of what duties a criterion of public justifiability confers on various agents. We now turn to ideals of public reason and find that they too come in a wide range of varieties: Authors differ in the questions of whom the duty to secure the public justifiability of impositions applies to, where the duty applies, what kind of political issues the duty applies to, and how exactly one should reason to ensure the public justifiability of laws and political decisions. As we shall see, someone like Rawls sees the duty of public reason as applying to all those who exercise public political power. On this view, the duty of public reason applies to all government officials, including judges, and to citizens when they act in their public role as citizens and vote. Others, like Gerald F. Gaus, think that ordinary citizens should be exempt from the duty to use public reason altogether. But while Rawls has an inclusive view of whom the duty applies to, he has a restrictive view of where and when the duty applies. On Rawls’s view, the duty of public reason only applies in public sites and situations where citizens and officials exercise collective political power and only in connection with public political issues that touch on constitutional essentials and matters of basic justice. Gaus, on the other hand, sees the duty of public reason as applying to all kinds of political questions that may involve some form of coercion, including that of setting tax rates.20 The most elusive and contested aspect of ideals of public reason relates to what exactly it means for an agent to abide by an ideal of public reason and 19 20

Cf. Sadurski, “Supranational Public Reason.” Cf. Forst takes a broader perspective on public justification than most defenders of public reason and states that “every claim to goods, rights or liberties must be justified in a reciprocal and general manner, where one side may not simply project its reasons onto the other but has to justify itself discursively” in Rainer Forst, “Two Pictures of Justice,” Justice, Democracy and the Right to Justification: Rainer Forst in Dialogue (London: Bloomsbury Academic, 2014), p. 21.

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use public reason, or what it means for an agent to provide a sufficient and legitimacy-conferring public justification for their political impositions. Ideals of public reason tell agents to use public reasons and public reasoning in such contexts, but as we have seen, this can mean different things. Typically, though, it means that an agent should try to avoid justifications that are wholly externally imposed or projected on other subjects.

III Public Reason Approaches to Courts I define authors taking a public reason approach to courts as authors who accept the idea of public reason, and also see the ideal or duty of public reason as applying to (certain types of) courts and judges, at least in some cases or issue areas. The connection between courts and public reason is drawn in in various ways, however. First, the idea that public political acts must be publicly justifiable is sometimes seen as conferring a duty onto judges to reason and write opinions in a way that is publicly justifiable. But conceptions of public reason are also often seen as helping provide a standard of review for judges when they review disputed public acts and measures made by other public officials. Such ideals of public reason for judges can be reason-constraining and tell judges to constrain the types of reasons and reasoning they use and to avoid nonpublic reasons and nonpublic forms of reasoning, or check that other public officials’ justifications do not rely on such reasons. Alternatively, it can amount to a positive-orientation ideal that tells judges to ensure that the justifications and reasoning is compatible with publicly justifiable types of values and ideas, such as the basic ideas of the constitution. Often ideals of public reason for judges combines of reason-constraining and positiveorientation requirements. Ideals of public reason for judges often appeal to a standard of public justifiability or public reason that is largely exogenously determined (e.g., adopted from some philosophical theory). But some public reason theorists see courts – and supreme courts in particular – as endogenous sources or fountains of public reason.21 Courts have also been discussed as exemplar models of public reasoning, or as having an educative function vis-à-vis other public officials and the public at large.22 Many critics of public reason, such as Jeremy Waldron, have focused their criticisms on courts as 21

22

For a discussion of this distinction, see Brian Kogelman, “The Supreme Court as the Fountain of Public Reason,” Legal Theory, 24 4 (2018), 345–369. Cf. Rawls, Political Liberalism, pp. 231 ff; David M. Rasmussen, “Public Reason and Constitutional Interpretation,” in Dov M. Gabbay, Patrice Canivez, Shahid Rahman, and

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exemplars, and argued that it is unfortunate for other public officials and citizens to emulate the judicial style of reasoning.23 A complete theory, model, or conception of public reason for courts should ideally include both a worked-out account of the idea of public reason, as well as a specification of how the duty to ensure public justifiability of political and legal impositions falls on various types of agents, including the details of an ideal of public reason for judges. Yet, few authors invoke complete conceptions of public reason in this sense, and many give only a nod to the more systematic philosophical public reason literature. Furthermore, it is not clear that different philosophical conceptions of public reason necessarily translate into their own distinctive jurisprudential ideals. It may, for example, be possible to develop a jurisprudential approach that can be seen as appropriate for one or several conceptions of public reason: As we shall see, the legal technique called proportionality testing is seen as an attractive jurisprudential approach by authors who affirm quite different public reason conceptions. The discussion of public reason in courts in the legal literature can seem messy and theoretically incomplete, and does not always map on to the more familiar divides in legal theory and political philosophy. Yet, legal scholars’ use of the term public reason considers complexities of the legal context that philosophers are typically less familiar with, and it also provides new ways of thinking about how public justifiability can be ensured, e.g., through proportionality testing. I will suggest that a taxonomy of public reason approaches to courts may help us move beyond some of the current confusion about the meaning of public reason, thus facilitating much-needed interdisciplinary work in the domain. In the rest of this chapter, I therefore venture to talk about six stylized public reason approaches to courts, offered as a guide to navigate in this often-bewildering discussion landscape. These six approaches do not amount to six different models or conceptions of public reason in the strict sense, nor do they amount to six specific jurisprudential approaches. Rather, the proposed taxonomy is an attempt to distinguish between some common tendencies and lines of division in this interdisciplinary discussion, and it falls short of a full review of the literature.

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Alexandre Thiercelin (eds.), Approaches to Legal Rationality. Logic, Epistemology, and the Unity of Science (Heidelberg: Springer Dordrecht, 2010), p. 20. Cf. Jeremy Waldron, “Public Reason and ‘Justification’ in the Court Room,” Journal of Law, Philosophy and Culture, 1 1 (2007), 107–134. Other prominent critics of public reason in the current debate include David Enoch, “Against Public Reason,” in David Sobel, Peter Vallentyne, and Steven Wall (eds.), Oxford Studies in Political Philosophy, Vol. 1. (Oxford: Oxford University Press, 2015), pp. 112–144.

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1 The Liberal Public Reason Approach The first approach we will look at is the liberal public reason approach to courts. This approach is characterized by an emphasis on the importance of treating persons as free and equal, and the view that treating persons as free and equal requires ensuring that the legal and political impositions they are subject to are such that they can – as free and equal – see them as acceptable or justifiable. The liberal public reason approach to courts comes in two main varieties. First, some associate public reason with the view that judges’ reasoning should be informed by a specific liberal moral doctrine, or by a particular liberal theory of justice, such as Immanuel Kant’s moral philosophy, or Rawls’s justice as fairness in A Theory of Justice.24 The idea is that when judges ensure that their adjudication is compatible with a correct liberal doctrine, they also ensure that their adjudication is publicly acceptable, or reasonably acceptable, to all as free and equal citizens. Decisions the premises of which include nonliberal moral principles or values, or rely on nonliberal doctrines, on the other hand, are not believed to be acceptable to all as free and equal. Who are the authors defending this variety of the liberal public reason approach to courts? In A Theory of Justice Rawls suggests in a brief passage that it may be that courts in a well-ordered society use the two principles of justice as fairness “to interpret those parts of the constitution regulating freedom of thought and conscience, and guaranteeing equal protection of the laws.”25 However, Rawls did not develop his thoughts about judicial reasoning, nor present a conception of public reason, in this early work. Still, critics have sometimes associated Rawlsian public reason with courts applying his liberal doctrine of justice in a more or less direct way. Kant does not use the term public reason, and nor does he provide a public reason account for courts. However, both Kant’s moral philosophy and his doctrine of the Right has been an inspiration for others to develop a public reason approach to courts, especially based on what Kant writes on the importance of laws’ publicity.26 Also, Ronald Dworkin 24

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John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971); Kyle Farmbry, “Justice as ‘Fairness’ Reified: Lessons from the South African Constitutional Court,” Public Administration Quarterly, 38 4 (2014), 521–543. Rawls, A Theory of Justice, p. 307. In a footnote to this remark, he cites Ronald Dworkin, “The Model of Rules,” University of Chicago Law Review, 35 (1967), 21–29. Alec Stone Sweet and Eric Palmer, “A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing,” Global Constitutionalism, 6 3 (2017), 377–411. Reprinted in Chapter 7 of this volume.

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is sometimes mentioned in connection with this type of liberal public reason approach to courts. Dworkin’s adjudicative ideal explicitly builds on a comprehensive liberal doctrine, and Dworkin also defends this liberal doctrine as publicly justifiable or, as he puts it, as available, in principle, to all willing to consider it.27 However, since Dworkin does not use the term public reason about his own approach, I will not discuss his adjudicative ideal as a public reason approach to courts in this chapter. We now turn to the second and more influential variety of the liberal public reason approach to courts. This approach is characterized by having a more general presumption in favor of liberty for persons and seeing liberty of persons as entailing a requirement of public justification of any rights infringement. Persons are seen as naturally free from any other person’s moral or political authority, and the requirement of public justification is seen as creating a duty borne by public officials to provide a proper public justification for infringements of persons’ rights. Such an approach is, for example, found in many of Mattias Kumm’s writings and also in an article by Alec Stone Sweet and Eric Palmer.28 These authors argue that it falls on courts with review powers to check the public justifications of other officials’ public acts and measures. Their version of the liberal public reason is thus linked to calls for substantive review and to arguments about the necessity for legal regimes to have trustee courts with review powers in the first place.29 A major focus for this second type of liberal public reason approach to courts has been the legal review technique called balancing or proportionality testing. Proportionality testing is used by both domestic review courts as well as a growing number of international courts.30 The test is developed to assist judges in assessing acts and measures that involve the restriction of a legally protected right, and it is also useful for resolving disputes that involve a conflict between a rights claim and a public act that public officials claim is covered by a limitation clause.31 There are many varieties of the test in circulation, but it is typically seen as having three or four decisional stages. Prior to using the proportionality test a court must first establish that there is interference with a legally protected right. The 27 28

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Ronald Dworkin, Justice in Robes (Cambridge: Harvard University Press, 2006), p. 252. Stone Sweet and Palmer, “A Kantian System.” Note that Stone Sweet and Palmer present their account as an interpretation of Kant’s doctrine of the Right but fill in alleged gaps in Kant’s account that have to do with the role of fiduciary courts. Cf. Stone Sweet and Palmer, “A Kantian System.” Others, like Sadurski, also discuss public reason in relation to proportionality testing but within a framework that aligns more with the political liberal approach. Stone Sweet and Palmer, “A Kantian System,” 396–397.

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first stage of the test is then to establish whether the contested act or measure has a legitimate aim or serves a legitimate policy end (legitimate aim). If this criterion is satisfied, the court moves on to consider whether the measure is rational or suitable to achieve the aim, an analysis that potentially includes a requirement of evidence to show that the act or measure will have the intended effect (suitability). The third step assesses whether the act or measure is necessary to achieve the aim, and whether it involves the least restrictive means of achieving the aim (necessity or least restrictive means). The final step assesses whether the measure is proportional or reasonable and considers competing interests of different groups or competing rights in a kind of cost-benefit analysis (balancing or proportionality in the strict sense). The second and the third stages of the test scrutinize empirical aspects, whereas the first and the last stages are more normative. There is now a growing literature that holds this test out as the most suitable test of the public justifiability (or public reason) for rightsinfringing acts and measures. The test is not seen as a blueprint for reasoning from “liberal premises.” Rather, it is seen as a means of checking that public officials’ justification of a contested act lies within some scope of what is “publicly justifiable,” or “whether a public action can be demonstratively justified by reasons that are appropriate in a liberal democracy.”32 Some have characterized it as a means of testing whether the act can be justified in terms of public reasons that every citizen might reasonably accept, even if they actually do not currently accept them.33 The first stage of the test – the analysis of whether the contested act or measure serves a legitimate policy end – is often seen as particularly relevant for public reason, since it allows judges to identify reasons in the decision-making process that do not count as legitimate reasons for a rights-infringing measure. According to Kumm, the first stage of the test allows judges to smoke out different types of pathologies and biases in discussions and decision-making processes that lead up to the contested act or measure. Such pathologies can be that the decision is thoughtless or based on tradition, convention, or mere preference; that it is based on particularistic and sectarian ideas of the good; that it is founded on hyperbole and ideology; or based on the capture of the 32 33

Kumm, “The Idea of Socratic Contestation,” 142. Mattias Kumm, “Policing the Boundaries of the Reasonable: Judicial Review and Proportionality as the Test of Public Reason,” in Faustino Gutiérrez and Javier M. L. Conradi (eds.), El Juez y la Cultura Contemporánea, Vol. 3 (Madrid: Consejo General del Poder Judicial, 2009).

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political process by rent-seeking interest groups.34 Wojciech Sadurski too sees the first stage as particularly important for public reason. However, he argues that international human rights courts too often avoid substantive analysis of the legitimacy of policy ends and relocate the substantive analysis and emphasis to later stages, and to the necessity test in particular.35 This leads Sadurski to characterize the proportionality test as a “missed opportunity” for courts to test the public justifiability of rights-infringing public acts.36 Several proponents of the liberal public reason approach to courts argue that the final balancing stage of the proportionality test should prioritize substantive individual rights protections. Kumm has also argued that one should understand the proportionality test in a “deontological way,” or interpret and use the test in an antiperfectionist, anticollectivist, and anticonsequentialist way,37 meaning that one should be wary of justifications of public acts based on appeals to perfectionist political goals, “public good,” and “public necessity,” and also aware of relationships where persons are treated as mere ends. In the context of adjudication in international courts and tribunals, proponents of liberal public reason approaches are typically associated with a cosmopolitan understanding of public reason, rather than with a statist or state-centered understanding of public reason.38 Such cosmopolitan understandings of public reason see the public of all affected individuals as the relevant audience for whom laws and decisions should be publicly justifiable, instead of prioritizing justifiability vis-à-vis the public of states. The cosmopolitan tilt connects with the liberal public reason approach’s strong emphasis on treating individuals as free and equal, and the tendency toward strong individual rights protections.

2 The Political Liberal Public Reason Approach Public reason is often associated with John Rawls’s political liberalism and with the idea that certain types of reasons should be excluded in public 34 35 36

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Kumm, “The Idea of Socratic Contestation,” 143 ff. See Sadurski in Chapter 9 in this volume. Note also that in general, few courts strike down laws on the basis of the first two stages of the test, or on the basis of illicit official purpose or that the act is irrational or arbitrary. Cf. Stone Sweet and Palmer, “A Kantian System,” 397. Mattias Kumm and Alec Walen, “Human Dignity and Proportionality: Deontic Pluralism in Balancing,” New York University Public Law and Legal Theory Working Papers, 383 (2013). Kumm, “The Cosmopolitan Turn in Constitutionalism.”

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justifications. This is also the case in discussions about public reason and courts. Political liberalism has been characterized as a normative approach that has limited applicability, has shallow foundations, is autonomous, and is based on epistemic abstinence.39 This characterization comes from a critic, but it provides a useful starting point for looking at this approach’s most striking and controversial features: First, political liberal approaches to public reason limit their scope in the sense that they typically start from within and apply to constitutional liberal democracies. Second, political liberal approaches avoid presenting themselves as comprehensive, or as full, deep, and general theories or doctrines of justice. Instead, they focus explicitly on the political domain, or on working out conceptions of political justice and political legitimacy for this domain. Third, political liberal approaches claim to be autonomous in the sense that they think that it is both possible and necessary to work out conceptions of political legitimacy and public reason without starting from, and first coming to agreement about, moral theory. Fourth, political liberal approaches have an element of epistemic abstinence in the sense that they typically promote ideals of public reason that tell participants to bracket deeper doctrinal issues and to abstain from controversial metaphysical and epistemological claims when making and justifying political and legal impositions. The limited applicability, shallowness, and autonomy – or as some would say, the epistemic abstinence – of the political liberal approach may seem puzzling. However, these features should be understood in light of political liberalism’s emphasis on pluralism or disagreement among free and equal persons. Political liberalism asks: What should we see as reasonable disagreements among citizens? Or, put differently, what kinds of disagreements and pluralism should we accept as natural, thus requiring us to respect and somehow accommodate different sides in the disagreement? Liberal doctrines assume that there can be reasonable disagreements over individuals’ and groups’ conceptions of the good life as well as a reasonable pluralism of religious beliefs. Political liberalism, however, emphasizes that we should take as a starting point for our political and legal normative thinking that there can be reasonable disagreements also about which moral and philosophical “comprehensive doctrine” is right or true.40 Moreover, 39

40

Joseph Raz, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy and Public Affairs, 19 1 (1990), 5. For Rawls a comprehensive doctrine is a doctrine or theory that is both deep – in the sense that it seeks to provide a foundation or explanation of morality and justice – and general – in the sense that it applies generally or in a wide range of domains of life. Cf. Rawls, Political Liberalism.

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the political liberal approach also assumes that there can be a reasonable disagreement about liberalism itself: If liberalism amounts to a deep and general moral doctrine that purports to give a foundational answer about the origin and basis of morality and justice and to have validity in a wide range of domains of life, then we cannot reasonably expect all reasonable persons to accept the liberal doctrine as the right basis for laws and political impositions. Political liberal approaches do not deny that there may be a true moral doctrine, or that the true moral doctrine is a liberal moral doctrine, but they assume that reasonable persons in a constitutional democracy can reasonably disagree on this question.41 According to this approach we fail to offer citizens who disagree with us a justification that is publicly justifiable, and thus to sufficiently respect them as free and equal, when we impose laws and regulations on them on the basis of our preferred comprehensive doctrine. This is not only the case when we impose laws on them based on, for example, a version of Catholicism, but also when we do so on the basis of comprehensive or perfectionist forms of liberalism like those of John Stuart Mill or Joseph Raz,42 or Rawls’s justice as fairness in A Theory of Justice. In short, the emphasis on reasonable pluralism is the main difference between the political liberal approach and the liberal public reason approach. If we accept the fact of reasonable pluralism, how is it then possible to justify a political or legal imposition in a way that is reasonably acceptable to all those bound by it? The political liberal public reason approach assumes that public justifiability is best ensured when laws, and constitutional laws in particular, can be justified with reasons and types of evidence that are readily accessible, appropriately shallow in the sense that they do not depend on particular comprehensive doctrines, and also possible to justify in a distinctly political language and with political ideas and values that are, or could reasonably be expected to be, widely shared in the relevant public. I shall outline three stylized varieties of political liberal public reason in this sense. Most political liberal ideals of public reason tell public officials, and sometimes also citizens, to limit themselves to certain types of reasons in 41

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Political liberals typically explain that comprehensive doctrines can be reasonably disagreed with by the difficulties of assessing and weighing evidence, and with persons’ different life experiences playing a part in how one does this. Rawls refers to this as the “burdens of judgment.” Rawls, Political Liberalism, pp. 54 ff. Cf. Martha Nussbaum, “Perfectionist Liberalism and Political Liberalism: A Response to Joseph Raz” (2008), available at www.uchicagolaw.typepad.com/faculty/2008/11/perfec tionist-l.html.

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public political discussion and political decision-making. More specifically, they tell them to refrain from relying on personal preferences, intuitions, revelations, and certain conceptions of the good life as well as to exclude reasons that are taken from, or rely on, a particular comprehensive religious, moral, or philosophical doctrine. Some political liberal accounts of public reason focus almost exclusively on the importance of such restraints and the exclusion of certain types of reasons. We shall refer to these as negative or restraint-oriented versions of political liberal public reason. Other political liberal approaches emphasize a more positive orientation and provide a fuller account of what it means to say that public justification has to be a type of justification that proceeds in a political language and refers to political goods and values. Certainly, that a concept, idea, or value is political is not in itself enough to ensure that it is an appropriate public justification of a given legal or political imposition. So, which political ideas and values can one appropriately appeal to? The second main variety of political liberal public reason sees compatibility with a political liberal conception of justice as the appropriate criterion of public justifiability of legal impositions. This means that public justifications of legal impositions should appeal to, or at least be able to demonstrate compatibility with, a liberal conception of justice whose principles ensure the freedom and equality of persons while being a distinctly political conception. “Political” here means that the conception of justice is formulated in a vocabulary that is familiar from the public political culture (of a constitutional liberal democracy) and that it refrains from including deep doctrinal justifications and commitments. The idea is that the shallowness, or the avoidance of including deeper doctrinal foundations of the justice conception, makes it possible for a subject of a legal imposition to accept a justification based on a political conception without also having to accept a comprehensive religious, moral, or philosophical doctrine. The assumption of this approach is that given the fact of reasonable pluralism, it is not reasonable to expect full consensus on a comprehensive conception of justice, like Rawls’s original justice as fairness conception of justice, but still reasonable to think that citizens can come to affirm a particular political liberal conception of justice as an appropriate basis for laws in an overlapping consensus. That is, the approach assumes that citizens may be able to come to an overlapping consensus on a political conception or a set of political principles of justice. In an overlapping consensus they affirm a political conception for different reasons and while affirming different

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and sometimes conflicting comprehensive doctrines. When citizens arrive at an overlapping consensus on a political liberal conception of justice, then this conception provides a public basis of justification of legal impositions among the citizens – in spite of the fact of reasonable disagreement. Overlapping consensus on a political conception of justice is a deeper and more specific consensus than a consensus on specific constitutional laws and principles, but it is more limited and shallower than a full agreement on a comprehensive doctrine of justice or morality. The best-known example of this second type of political liberal public reason approach is the ideal of public reason that Rawls presents in the first edition of Political Liberalism, where he recasts justice as fairness, the theory of justice he first developed in A Theory of Justice, as a political liberal conception of justice.43 In this later book he defends the “liberal principle of legitimacy,” which in effect says that in order to be legitimate, public impositions must be compatible with a constitution, which in turn must be compatible with a political liberal conception of justice.44 A third variety of political liberalism interprets the fact of reasonable pluralism in a more radical way,45 assuming that there will be not only a reasonable pluralism of comprehensive conceptions of morality and justice among citizens but also a reasonable pluralism of political liberal conceptions of justice. On this view it is unreasonable to think that there is merely one reasonable political liberal conception of justice, and unreasonable to think that only one conception – such as Rawls’s political liberal version of justice as fairness – can yield the standard of public justifiability. This more 43

44

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The main difference between justice as fairness as a comprehensive liberal conception of justice and as a political liberal conception is that the latter is explicitly limited to the political domain, and also stripped of its deeper Kantian underpinnings and the implicit assumptions about moral autonomy as the ultimate criterion of morality. Autonomy is central to justice as fairness as a political conception as well, but then understood as political autonomy, or the importance of civil and political rights within the framework of laws and basic institutions. Rawls, Political Liberalism, p. 137. In later texts Rawls formulates the principle of legitimacy differently. Cf. Silje A. Langvatn, “Legitimate, but Unjust; Just, but Illegitimate: Rawls on Political Legitimacy,” Philosophy & Social Criticism, 42 2 (2016). Frank I. Michelman has emphasized the constitutional dimension of Rawls’s liberal principle of legitimacy. Frank I. Michelman, “Legitimacy, the Social Turn, and Constitutional Review: What Political Liberalism Suggests,” Critical Quarterly for Legislation and Law, 3 (2015). See also Michelman in Chapter 4 in this volume. Gaus refers to this variety of political liberalism as “deep political liberalism.” Gaus subscribes to this assumption, but provides a different response and a different type of ideal of public reason than Rawls. Gerald F. Gaus, “The Turn to Political Liberalism,” in Jon Mandle and David Reidy (eds.), A Companion to Rawls (Chichester: Wiley-Blackwell, 2014), pp. 235–50.

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radical version of the fact of reasonable pluralism raises the following question: If reasonable citizens cannot even come to an overlapping consensus on a political liberal conception of justice as the correct one, what can then serve as the standard of public political justification? One version associated with Rawls’s late formulation of political liberalism turns to the basic political and implicitly shared ideas of the public political culture in constitutional liberal democracies.46 This version assumes that disagreement among reasonable persons in this type of regime is not over the validity of basic political ideas such as liberal constitutionalism, democracy, and the idea that persons should be treated as free and equal, but disagreement about how best to interpret, justify, combine, and institutionalize these basic political ideas of the regime.47 Here the best way to establish and maintain a democratic liberal constitution, and a basic structure that is publicly justifiable, is to try to move from (1) an implicit consensus among reasonable citizens on these basic but vague political ideas and values to (2) a reasonable overlapping consensus where citizens can recognize a range of different political conceptions of justice that interpret these basic politicalmoral ideas as reasonable, while each may continue to see their own interpretation or political conception as the most reasonable and also to affirm different comprehensive doctrines.48 The forging of such a reasonable overlapping consensus is believed to require a deliberative practice or adherence to an ideal of public reason. This ideal says that those who exercise political power over constitutional essentials and matters of basic justice must do so in a way that they sincerely believe to be compatible with what they see as a coherent interpretation or conception of the basic political ideas of the regime. They must also be willing to explain how they see their impositions as compatible with the basic political ideas of the regime to affected citizens and be attuned to whether those affected can accept their interpretation as a politically reasonable basis of the impositions. According to this third variety, there is no final answer as to which political conception of justice is the most reasonable, or the most publicly justifiable – not even if there happens to be a temporary consensus or 46

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This is a solution that Rawls pursues in texts like John Rawls, “Public Reason Revisited,” pp. 765–807. Cf. Langvatn, “Legitimate, but Unjust.” Citizens who dismiss these basic ideas altogether are themselves dismissed as politically unreasonable. An underlying assumption here is that persons can have an independent allegiance to (moral) ideas and values from the political domain, such as the idea of democracy or freedom, in a way that does not derive directly from their religious or philosophical doctrines.

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convergence on one political conception of justice. However, it is assumed that sufficient public justifiability – and thus political legitimacy – can be ensured in the following way: If decision-makers adhere to this ideal of public reason over time, then the content and justifications of laws and even the constitution will be shaped by the ideal. If this happens it will be possible for those subject to laws and regulations to see majoritarian democratic outcomes as sufficiently justified and as reasonably politically acceptable. Why? Because even the losing minority (of reasonable citizens) on an issue can recognize that the decision was made on the basis of a reasonable constitution, one which is itself based on reasonable interpretations of more general political ideas they themselves affirm. Moreover, the citizens can see that the constitution and the laws result from a process where decision-makers have attempted to demonstrate the measure’s public justifiability or compatibility with the basic political ideas of the regime. The standard of public justifiability proposed in this third version of the political liberal approach is substantive in the sense that it requires legal impositions to be such that it is possible for reasonable citizens to see them as compatible with the substantive basic political ideas of constitutional liberal democracies. But this version also yields a standard that is focused on process and de facto acceptability to each, in the sense that it connects the public justifiability of a legal imposition to the quality of the deliberation and justification provided for it and to the extent to which this public justification has, in fact, been presented and also been reasonably accepted by those bound by the laws. The political liberal approach to public reason has informed debates about courts and adjudicative ideals in at least three different ways: First, varieties of this approach have provided direction and content to ideals stating that judges must ensure that their own legal reasoning is publicly justifiable, especially in cases where the judges have to go beyond black letter law (e.g., ideals stating that judges should restrain the doctrinal depth of their own reasoning, that they should refrain from assessing the validity of worldviews or comprehensive doctrines, or that they take into account a political, as opposed to comprehensive, conception of political justice like justice as fairness).49 Second, varieties of political liberal public reason have been offered as guidance for judges reviewing other public officials50, such as when judges scrutinize the legitimacy of legislative ends, assess 49 50

Langvatn, “Should International Courts Use Public Reason?” Cf. the discussion about proportionality testing in the section on Liberal Public Reason above.

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motivations for legal acts, and consider the sincerity of public justifications offered by legislators.51 It has, for example, been argued that when a court assesses competing policy considerations within the proportionality framework, it should recognize the fact of reasonable pluralism, which in turn may justify more deference toward a democratic legislator or administrative agency, because it should lead the court to see that its role is not to promote and provide what it sees as the most just or correct solution, but to only “police the boundaries of the reasonable.”52 Third, political liberalism is also seen as having implications for how one should frame a theory of law or the nature of law itself. Lawrence Solum, for example, argues that the theory of law should be a kind of theory that takes the fact of reasonable pluralism as one of the features of the world that has normative consequences. On this view, the normative theory that guides the study of law must be shallow: It cannot have totalitarian ambitions or deny that “at least some competing theories could be affirmed by reasonable persons.”53 In other words, this type of approach encourages judges and legal scholars to stress the independence of normative political and legal theory from doctrinal moral theory and from comprehensive doctrines more generally.54 The restraint or constraint aspects of political liberal public reason has been the subject of immense controversy, also in discussions about courts and adjudication. Critics have argued that a wholesale “ban” on reasons taken from religious and moral doctrines will make political and legal reasoning epistemologically and morally impoverished, bloodless, and insincere, and that political liberalism does not have the resources to address all moral and politically contested issues. Many have been moved by examples of how religious reasons can make valuable contributions in discussions about morally contentious issues such as abortion, euthanasia, and stem cell research, and on the basis of this dismissed political liberal public reason as a viable ideal. Religious law55 and religious freedoms and exceptions have also been widely discussed, most often in connection with same-sex marriage and abortion.56 Some argue that the restraints imposed by (the restrictive version of) political liberal public reason fail to treat 51 52 53 54 55

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Schwartzman, “Judicial Sincerity.” Kumm, “The Cosmopolitan Turn,” p. 306. Solum, “Public Legal Reason,” p. 1454. Ibid. Cf. Mohammad Fadel, “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights,” Chicago Journal of International Law, 8 1 (2007), 1–20. See also Fadel in Chapter 5 in this volume. Cf. Den Otter, Judicial Review.

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persons as free and equal, and that they put an undue burden on persons with religious doctrines. In response to such criticism, political liberals have sometimes modified their positions, or argued that political liberal ideals of public reason are graduated and first and foremost restrain public officials when they make decisions about constitutional matters, while allowing ordinary citizens more room to bring in their comprehensive doctrines.57 Others have argued that not all religious reasons or arguments appeal to revealed truth or authority, and that some religious reasons are more acceptable for a political liberal ideal of public reason.58

3 The Classical Liberal Public Reason Approach I shall refer to the next public reason approach as the classical liberal public reason approach, although the label can be misleading. This public reason approach to courts starts from the idea of public reason, but understands the criterion of public justifiability in a way that leads to a defense of conclusions and policies that we associate with classical liberalism and libertarianism. It is characterized first by a presumption against coercive and legal restrictions on individuals’ freedoms, unless such restrictions can be publicly justified to each person subject to them, and second by the conclusion that few legal and coercive restrictions on individuals’ freedoms can indeed be publicly justified.59 The most influential version of this type of approach is those of Gerald F. Gaus and Kevin Vallier, both of whom defend what they refer to as a “public reason liberalism with a classical liberal tilt.” Their approaches differ from much of the public reason literature, not only in the way they reach their conclusions about what rights can be publicly justified but also by building on a convergence approach, rather than a consensus approach, to public reason.60 57 58

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Rawls, «Public Reason Revisited» Cf. Andrew March, “Rethinking Religious Reasons in Public Justification,” The American Political Science Review, 107 3 (2013), 523–539; and Kent Greenawalt, “Natural Law and Public Reasons,” Villanova Law Review, 47 1 (2002), 531–552. See also Fadel in Chapter 5 in this volume. John Tomasi represents a libertarian public reason approach, one that adopts the framework of Rawls’s justice as fairness in A Theory of Justice, but Tomasi argues that libertarian principles should be chosen by the parties in the original position, and that Rawls’s list of protected liberal rights fails to include enough economic rights. John Tomasi, Free Market Fairness (Princeton, NJ: Princeton University Press, 2012). Gerald F. Gaus and Kevin Vallier, “The Roles of Religious Conviction in a Publicly Justified Policy,” Philosophy and Social Criticism, 35 (2009), 51–76; Gerald F. Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996); Gerald F. Gaus, The Order of Public Reason: A Theory

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Like the political liberal approach to public reason, Gaus and Vallier underscore the fact of reasonable pluralism – or what they call evaluative pluralism – as a natural condition among free and equal persons in liberal and democratic societies, and they assume that there may be a reasonable pluralism not only of conceptions of the good and comprehensive doctrines but also of political conceptions of justice. Their approach thus emphasizes that one cannot legitimately coerce someone who disagrees with classical liberalism or libertarianism on the basis of a classical liberal or libertarian comprehensive doctrine of justice.61 Yet, their approach differs from the political liberal approach to public reason in several other respects. First, while political liberal approaches to public reason typically subscribe to a consensus view of public reason, both Gaus and Vallier argue that public justifiability only requires that each citizen have a sufficient reason to accept the law or rule in question. In other words, they subscribe to a convergence view of public reason.62 Second, while political liberal approaches focus on the need for public justifiability of political and legal impositions, and constitutional essentials in particular, Gaus and Vallier argue that the criterion of public justifiability also applies to social rules and norms more generally. Third, while political liberalism assumes that there is a symmetry between the types of reasons that can be used to publicly justify a law, and the types of reasons that can count against, or defeat, the public justifiability of a law, public reason liberalism assumes that there is an asymmetry:63 On this view it is much easier to veto, or defeat, the public justifiability of a law that restricts an individual’s freedom than it is to publicly justify a restrictive law. In order to publicly justify a freedom-restricting law, each person subject to the law must have a reason to accept it. Yet, in order to defeat such a law it

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of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2010). Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (New York: Routledge, 2014); Kevin Vallier, Must Politics Be War?: Restoring Our Trust in the Open Society (New York: Oxford University Press, 2019). I will focus primarily on Gaus’s account here, and only occasionally discuss the extent to which Vallier’s approach differs from it. Cf. Gaus, The Order of Public Reason, and Vallier, Must Politics be War?. As noted in this chapter, Rawls’s claim in Political Liberalism that full public justification of a legal imposition requires an overlapping consensus on a political liberal conception of justice among the citizens (the “second variety” discussed above) may be interpreted as a mix between the consensus and the convergence view of public reason. Cf. Quong, “Public Reason.” Cf. Jonathan Quong, “Three Disputes about Public Justification. Commentary on Gaus and Vallier,” Public Reason Podcast Symposium (2008).

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suffices that one person subject to the law has a reason to oppose it. Moreover, what counts as a reason for a person to oppose a freedomrestricting law on this view has a low threshold: It suffices that the person sees the reason as a relevant reason, and that the reason satisfies certain weak evidentiary standards that make it intelligible as a reason (e.g., that it is possible for others to recognize that it can count as a reason for the person). Fourth, both Gaus and Vallier’s approaches to public reason are also nondeliberative: Unlike political liberal public reason approaches, their approaches do not require that those who exercise political power present their justifications to the affected public, or that citizens or public officials engage in public reasoning and public debates using public reasons. For them, what matters for political legitimacy is that public institutions are designed in a way that promotes publicly justified outcomes without burdening citizens with an ideal of public reason. We can now see how this public reason approach leads to conclusions that have a classical liberal tilt: It assumes that there is a wide evaluative pluralism, or a reasonable pluralism on a wide range of issues, including justice. Given this, it is likely that for most freedom-infringing laws there will be persons who have some reasons to object to the law in question. The implication is that many of the laws that will be justified and legitimate from a political liberal approach to public reason will not be seen as legitimate when we take this approach. In Gaus and Vallier’s view, the public justifiability of any law can be defeated by the diverse reasons of those who would be affected by the law, including by their religious reasons.64 Gaus and Vallier argue that in addition to fairly extensive property rights, a range of other individual freedoms and rights – such as freedom of speech, freedom of the press, freedom of association, rights of conscience – can also be publicly justified, and that these rights should be protected by courts. Positive individual rights that require governmental entitlements or privileges, and that compel someone to pay taxes, on the other hand, can seldom be publicly justified on this view, since being required to pay taxes is here seen as a form of coercion and as an interference in individuals’ freedom.65 In spite of this, Gaus has argued that extensive redistribution may be publicly justifiable. While Gaus is hesitant to argue that his public reason approach can be used to show that certain court cases are wrongly decided, Vallier argues 64 65

Gaus and Vallier, “The Roles of Religious Conviction.” Kevin Vallier, “A Rawlsian Case for Libertarianism,” Libertarianism.org (2017) available at www.libertarianism.org/publications/essays/rawlsian-case-libertarianism.

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that some cases are sufficiently wrongly decided to say that the parties to the case have defeaters for the coercion imposed upon them.66 Gaus also sees the public reason approach as disfavoring courts as a way of settling controversial questions like same-sex marriage, and he thinks that courts should refrain from developing and enforcing unenumerated constitutional rights.67 This connects with Gaus’s conviction that the content of public reason – or what can meet the test of public reason – cannot be determined by philosophical analysis, nor by deliberation alone, but depends on a historical process of selection of norms that can be stable and enable cooperative life.68 Effective legal regulation, in Gaus’s view, depends on approximate robust justification, meaning that legal impositions must have a supporting framework of social-moral norms. Without this, legal rulings are often not enforced or complied with.69

4 The Natural Law Approach to Public Reason Defenders of natural law approaches have come into conflict with defenders of public reason over a range of legal issues such as abortion, same-sex marriage, euthanasia, and biotechnology. Public reason proponents often reject natural law arguments because they see natural law arguments as enmeshed with Roman Catholicism. Natural law theorists, on their part, typically reject public reason as an approach that is designed to rule out nonliberal positions by fiat prior to any rational assessment of the argument or position.70 Natural law and public reason thus seem to be antithetical. However, in the “modern,” or “new,” natural law tradition, which eschews direct appeal to religion, there is a strand arguing that natural law is a public reason approach since it asserts that “questions of fundamental law and basic matters of justice ought to be decided in accordance with natural law, natural right, natural rights, and/or natural justice.”71 John Finnis is the foremost proponent of this strand, and he argues that natural law theory is

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Vallier, Liberal Politics and Public Faith. See Jacob Barrett and Gaus’ contribution to this volume, Chapter 8. Vallier is less skeptical of courts settling controversial questions. Quong, “Public Reason.” See Barrett and Gaus in Chapter 8 in this volume. Robert P. George and Christopher Wolfe, “Introduction,” in Robert P. George and Christopher Wolfe (eds.), Natural Law and Public Reason (Washington: Georgetown University Press, 2000), p. 1. Robert P. George, “Public Reason and Political Conflict: Abortion and Homosexuality,” Yale Law Journal, 106 8 (1997), 2482.

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the “true” or “genuine” form of public reason while dismissing Rawls’s version as distorted.72 Finnis shares Rawls’s worry that religious pluralism will lead to civil and political strife.73 He also shares the general idea of public reason or, as he puts it, the idea that one can only legitimately impose as requirements those rules and laws that can be justified in a way that “is accessible to all people whatever their religious beliefs or cultural practices.”74 However, Finnis differs from Rawls, and from most of the public reason tradition, in his understanding of what an accessible or public justification amounts to: First, by keeping the door open for religious revelation as a publicly accessible type of argument and, second, by relying on an idea of self-evident basic human goods. First, Finnis agrees with Rawls that reason is at “its most obviously public insofar as it uses data, concepts, and forms of argumentation that are available to all without regard to testimony about the one-off interventions in history by the universe’s transcendent source of nature.”75 However, Finnis holds that much of the message in a religious revelation can also be accessible or public to our reason. The test of whether something is public and acceptable should be to expose everything to the best investigation one can muster in an “unfettered inquiry and debate.”76 The test, Finnis argues, should not be a question of whether an argument or justification is based on religion or not – thus neither atheism nor radical agnosticism should be “entitled to be treated as the ‘default’ position in public reason.”77 On this Finnis is in line with several other natural law theorists who have argued against what they see as political liberal public reason’s complete ruling out of all comprehensive religious, moral, or philosophical doctrines as nonpublic and thus as unsuitable for political and legal argumentation.78 72

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George V. Bradley, “Natural Law Theory and Constitutionalism,” in George Duke and Robert P. George (eds.), The Cambridge Companion to Natural Law Jurisprudence (Cambridge: Cambridge University Press, 2017), p. 422. Other proponents of this approach include Robert P. George and Christopher Wolfe. John Finnis, Religion and Public Reasons: Collected Essays Volume V (Oxford: Oxford University Press, 2011), p. 4. John Finnis, “Abortion, Natural Law and Public Reason,” in Robert P. George and Christopher Wolfe (eds.), Natural Law and Public Reason (Washington: Georgetown University Press, 2000), p. 78. Cf. Finnis, “On ‘Public Reason’,” Notre Dame Legal Studies Paper No. 06–37; Oxford Legal Studies Research Paper No. 1/2007 (2006), 3. Finnis, Religion and Public Reasons, p. 3. Ibid., p. 4. Ibid., p. 45. Cf. John Haldane, “Public Reason, Truth, and Human Fellowship: Going Beyond Rawls,” Journal of Law, Philosophy and Culture, 1 (2007), 175–190; Martin Rhonheimer, “The Political Ethos of Constitutional Democracy and the Place of Natural Law in Public

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Second, Finnis conjectures that reasons based on basic human goods are exactly the types of reasons that will be able to survive what he takes to be the proper test of public reason, namely unfettered inquiry and debate. According to Finnis a certain set of “basic goods” for humanity exists in objective reality and will be self-evident for mature, rational persons.79 In his view, the basic goods include life, health, knowledge, work, play, friendship, religion, and aesthetic experience. In some writings Finnis has also argued for (heterosexual) marriage as a basic human good.80 His natural law approach says that all basic goods are equally valuable and must be taken into consideration in practical and legal reasoning. This means that any political or legal option must be assessed along multiple dimensions to ensure that all basic goods are protected. Furthermore, Finnis holds that the available answers to these assessments can be incommensurable – that is, ranked in different orders along each of the relevant criteria of evaluation – and that there seems to be no unique way to determine which is the right ranking overall.81 On this ground Finnis rejects Ronald Dworkin’s assumption that a judge can identify a “uniquely right answer” to hard legal cases.82 However, Finnis thinks that “one can identify reasons against an option, whenever (for example) that option involves choosing (intending) to destroy, damage, or impede a basic human good, or imposing on persons, even as a side-effect, harms or burdens which one would not impose on oneself or one’s friends and which one imposes for no motive other than differential feeling.”83 In other words, one cannot identify the ultimate good or right, but one can identify evil, as that which damages and impedes a basic human good. Finnis has argued that practicing homosexuality and same-sex marriage is an identifiable evil in this sense. Finnis’ natural law theory is not only a theory of morality but also a theory of law. However, he does not see natural law as translating

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Reason: Rawls’s ‘Political Liberalism’ Revisited,” in Martin Rhonheimer (ed.), The Common Good of Constitutional Democracy: Essays in Political Philosophy and on Catholic Social Teaching (Washington: Catholic University of America Press, 2013); George, “Public Reason and Political Conflict.” Others, like Greenawalt, attempt to build bridges between natural law theory and the political liberal approach to public reason. Greenawalt, “Natural Law and Public Reason,” p. 542. Finnis, “On Public Reason”; cf. Finnis, Religion and Public Reasons. John Finnis, “Marriage: A Basic and Exigent Good,” The Monist, 91 3–4 (2008), 388–406. John Finnis, “Natural Law and Legal Reasoning,” Cleveland State Law Review, 38 1 (1990), 1–13. Finnis, “Natural Law and Legal Reasoning,” 8–10. Finnis, “Natural Law and Legal Reasoning,” 11.

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directly into a test for legality or into a determinate jurisprudence. Finnis accepts the basic tenets of legal positivism, and the idea that laws that are unjust are still legally binding in a technical legal sense, but he adds that unjust laws are not “fully law” and do not create the same legitimacy, and moral duty to adhere, for the addressees.84 Still, Finnis articulates skepticism about courts taking on the task of deliberately seeking to develop the law or making the law fairer, since this in his view is the proper task of the citizens when voting and of the legislative part of the state.85 He stresses that the job of judges is first and foremost the final resolution of disputes between parties by application of preexisting law to established facts. This, however, has not prevented public debate about whether Finnis’ natural law theory and understanding of public reason – and especially his view that same-sex marriage undermines a basic human good – has in fact influenced some judges’ jurisprudence.86

5 The Deliberative Public Reason Approach The idea of deliberative democracy and the idea of public reason are sometimes conflated with each other and sometimes seen as incompatible. It is perhaps most correct to say that some versions of public reason may be seen as subspecies of a more general deliberative democratic approach. Rawls, for example characterizes his late version of political liberal public reason as part of the deliberative democracy tradition.87 Gaus’s conception of public reason, as we have seen, is nondeliberative, meaning that it does not see an actual public process of deliberation, public justification, and reason-giving as a necessary criterion of a law’s legitimacy as such. In his view, what matters for the public justifiability of laws is that each person bound by a law has a sufficient reason to accept it. Both deliberative democracy theorists and public reason defenders see public justifiability as a necessary criterion for legitimate law. Deliberative democrats, however, emphasize that public justifiability requires an actual 84 85 86

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This, Finnis argues, is also the view of Thomas Aquinas. Finnis, “Abortion, Natural Law, and Public Reason,” p. 82. In the Senate confirmation hearing of the US Supreme Court Justice Neil Gorsuch in 2018, Gorsuch was questioned about the extent to which Finnis (who was Gorsuch’s dissertation supervisor) had influenced Gorsuch’s legal views. John Rawls, “Reply to Habermas” in Political Liberalism (New York: Columbia University Press, 1996), 372–434. Rawls here expresses what I above referred to as the third version of the political liberal public reason approach.

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process of deliberation and reason-giving, as opposed to a hypothetical or overly theoretical account of what is publicly justifiable. Typically, deliberative democracy theory has a primary focus on the deliberative process and its structural conditions, and it emphasizes that political decisionmaking and law-making must emerge as a result of noncoercive, open, and inclusive deliberation. Moreover, for many deliberative democrats, deliberation is not just to discuss or give reasons. On their view, deliberation must also include discourse where arguments’ truth, correctness, or authenticity is tested intersubjectively under free and open conditions. Political liberal public reason defenders, on the other hand, tend to focus less on truth testing of moral, philosophical, and religious doctrines, and also less on the structural conditions of deliberation. Their focus is more on the orientation and restraints they see as necessary to make justifications of political and legal acts acceptable to a diverse audience, given that this audience will not come to agree on the truth or correctness of many deep religious, moral, and philosophical issues. Several deliberative democrats, including Jürgen Habermas, have been vocal critics of public reason ideals. Public reason ideals will, according to Habermas, make public political debates both epistemologically and morally impoverished. The reason, as Habermas sees it, is that public reason ideals restrict free and open democratic deliberation too much and too soon in the decision-making process.88 Habermas’ criticisms are primarily directed at the restrictive variety of the political liberal approach, and in particular varieties thereof that tell ordinary citizens to restrict appeals to their comprehensive religious, moral, and philosophical doctrines. Yet, in the literature on courts Habermas is himself sometimes associated with the public reason approach. One reason for this is that Habermas, like Kant, uses a phrase that sounds deceptively similar to the “use of public reason,” namely “the public use of reason.”89 By public use of reason both Habermas and Kant have in mind the use of reason where one addresses the entire public of moral beings, or where one engages in a free, open, and rational testing of validity claims. Such public use of reason plays a crucial role in Habermas’ own model of deliberative democracy. Legitimacy, Habermas argues, demands 88

89

Jürgen Habermas, “Reconciliation through the Public Use of Reason,” Journal of Philosophy, 92 3 (1995), 109–131; Habermas,“Religion in the Public Sphere,” European Journal of Philosophy, 14 1 (2006), 1–25; Habermas,“‘Reasonable’ versus ‘True’, or the Morality of Worldviews,” in James G. Finlayson and Fabian Freyenhagen (eds.), Habermas and Rawls: Disputing the Political (New York: Routledge, 2011), pp. 92–116. Kant, “An Answer to the Question: What Is Enlightenment?,” pp. 55–65.

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that we entrust more to the actual process of rational will and opinion formation, and that we ensure the right structural conditions for free, open, and inclusive deliberations, or the structural conditions for a public use of reason. Habermas sees civil society as providing the best conditions for the public use of reason, and his model of deliberative democracy therefore emphasizes that the result of free and open deliberation among citizens in civil society must be channeled into the formal lawmaking and policy-making process.90 Political liberal public reason differs from Habermas’ and most other deliberative democratic approaches in its strong emphasis on the fact of reasonable pluralism. The political liberal approach sees it as naïve and overoptimistic to assume that free, fair, and inclusive deliberation among citizens can overcome deep and dividing conflicts over religion and moral and philosophical doctrines. Political liberals therefore argue that ensuring the structural conditions of free and inclusive deliberation is not sufficient but must be supplemented with an ideal of public reason to ensure the public justifiability of laws. A close reading of Habermas, however, reveals that Habermas too assumes that reasons must be filtered or translated in certain ways before the deliberative results from civil society can enter into the formal law-making process, or enter into the formal political sphere of parliament, courts, and administration. For example, Habermas says that political and legal authority “must be exercised with neutrality towards competing world views” and that “only secular reasons count beyond the institutional threshold that divides the informal public sphere from parliaments, courts, ministries and administrations.”91 Yet, Habermas thinks that the required filtering of reasons can be satisfied with an institutional translation requirement, such as rules and customs regulating what can be said in various institutional settings, including the floor of parliament. Such rules may ensure that contributions from civil society are morally filtered and that religious reasons are translated into secular reasons before entering the formal political forums. We can thus say that Habermas rejects public reason as an appropriate ideal in the informal publics and in civil society, but that he accepts an institutional ideal of public reason in the formal publics, or some institutional filtering of reasons in the formal publics, including in the courts. 90

91

Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996). Habermas, “Religion in the Public Sphere.”

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The most prominent way in which deliberative democracy theory and public reason is brought together in the current literature on courts comes from authors who see review courts as custodians of public or democratic deliberation,92 or as custodians that should safeguard, unlock, or nurture democratic procedures and deliberation in other parts of the political system. One variety of this view says that review courts should privilege communicative and participatory rights.93 Habermas may be said to hold such a view, having argued that review courts should show less deference when democratic deliberation and democratic procedure are at stake.94 Another variety emphasizes that review courts should have a special focus on scrutinizing the procedural and deliberative quality of the legislative process. Some take this to mean that courts shall scrutinize the extent to which an act or measure has in fact been subjected to deliberation and discussion in the legislature95; others argue that courts shall conduct a more substantive assessment of the quality of the deliberation that has taken place in the legislative process. For example, when Mattias Kumm characterizes proportionality-based review as a structure for the assessment of public reason, he often uses examples of courts scrutinizing legislatures and administrations’ decision-making processes, or scrutinizing whether rights-infringing acts and measures are the result of a sufficiently legitimizing democratic or deliberative process.96 Kumm refers to courts using the proportionality test in this way as junior partners in a joint deliberative enterprise,97 and as noted before, he emphasizes the first stage of the proportionality test as an important test of public reason. This 92

93

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I borrow this term from Mendes: Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (Oxford: Oxford University Press, 2013), p. 86. See Christopher Zurn who defends judicial review as an integral part of a “proceduralist version of deliberative constitutionalism”; Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge: Cambridge University Press, 2007). See also Zurn in Chapter 12 in this volume. “A rather bold constitutional adjudication is . . . required in cases that concern the implementation of democratic procedure and the deliberative form of political opinionand will-formation.” Jürgen Habermas, Beyond Facts and Norms: Contribution to a Discourse Theory of Law and Democracy (Cambridge, MIT Press, 1998), p. 279. E.g., Zurn, Deliberative Democracy. Zurn does not use the term public reason, but his position is discussed in such terms in Mendes, Constitutional Courts, pp. 85 ff. As noted in an earlier section, in several papers Kumm seems to take a more liberal and substantive rights–enhancing approach to proportionality testing than in his 2010 article, “The Idea of Socratic Contestation”. Kumm, “The Cosmopolitan Turn,” p. 305.

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variety of deliberative public reason bears a certain resemblance to a type of review that is being discussed in the legal literature under labels such as “semi-procedural review,”98 “procedural review writ large,”99 “procedural rationality review,”100 and “procedural proportionality review.”101 Some claim to see a shift towards this type of review in several international and domestic review courts. In particular, it has been argued that the European Court of Human Rights is increasingly probing the deliberative and rational quality of lawmaking processes, and that it tends to take a more deferential approach when it can be established that sufficient research and parliamentary debate have been undertaken.102

6 Public Reason as Justification vis-à-vis a Broader Public Finally, the term public reason has been used in connection with international courts that have taken discursive steps to make their rulings and interpretations more accessible and acceptable to the broader public – especially by offering reasons and considerations that take into account a broader set of societal interests and public goods. International economic courts and tribunals, like the World Trade Organization’s Dispute Settlement System (WTO DSS) and investorstate arbitral tribunals, are often criticized for having weak democratic legitimacy.103 Their legitimacy is also questioned on grounds that they “pierce the veil” of national sovereignty, while adjudicating on the basis of treaties that protect a certain subset of economic trade and investor interests without authorization to take into account a full set of public interests and constitutional values. Sivan Shlomo Agon has argued that these are the international courts for whom the strategy of “going 98

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102 103

Ittai Bar-Siman-Tov, “Semiprocedural Judicial Review,” Legisprudence, 6 3 (2012), 271–300. See also Patricia Popelier, “Legal Certainty and Principles of Proper Law Making,” European Journal of Law Reform, 2 (2000), 321–342. Klaus Meßerschmidt, “The Race to Rationality Review and the Score of the German Federal Constitutional Court,” Legisprudence, 6 3 (2012), 347–378. Patricia Popelier and Catherine van der Heyning, “Subsidiarity Post-Brighton: Procedural Rationality as the Answer?,” Leiden Journal of International Law, 30 1 (2017), 5–23. Tor-Inge Harbo, “Introducing Procedural Proportionality Review in European Law,” Leiden Journal of International Law, 30 1 (2017), 1–23. Harbo explicitly draws the link between procedural proportionality review and public reason. Popelier and van der Heyning, “Subsidiarity Post-Brighton.” Sadurski, “Supranational Public Reason,” 426.

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public”104 – or making their rulings accessible and acceptable by appealing to public goods and broadly shared public values – seems most urgent and efficient. Shlomo Agon finds that the DSS’s discursive quest for legitimacy among diverse and broader audiences is particularly visible in trade-and cases.105 These are cases where the DSS has to resolve tensions between trade liberalization and public interests such as human health, safety, protection of the environment, and “public morals” as well as labor rights and consumer interests. According to Shlomo Agon, the DSS’s public reason approach includes a move to more teleological, contextual, and evolutionary construction methods of the WTO agreements, allowing the DSS to show sensitivity to national and nontrade concerns. It also includes the incorporation of proportionality-type tests between trade liberalization and other social values into the reading of particular WTO provisions.106 But first and foremost, the public reason approach has been associated with the WTO DSS’s inclusion of designated “explanatory paragraphs” at the end of some of their rulings. These explanatory paragraphs are not only directed at the parties to the case, but also toward WTO member states more generally, as well as other affected audiences such as nongovernmental agencies and the public at large.107 Public reason as justification vis-à-vis a broader set of stakeholders and with appeal to a wider set of interests and values is often discussed as a legitimation strategy pursued by certain courts. Shlomo Agon, however, argues that the public reason strategy is not just a strategic and instrumental way for the WTO DSS to enhance their perceived legitimacy, but also reflects a sincere understanding among the judges of the need to take these publics and their interests into account as broadened powers also affect them.108 Ernst-Ulrich Petersmann has taken an explicitly normative approach, arguing that regional economic courts and investor-state arbitral tribunals ought to adopt public reason so understood, in order to enhance both their normative and their sociological legitimacy.109 104

105 106 107 108 109

Shlomo Agon,“‘Going Public’ – Reasoning and Justification in Contemporary WTO Jurisprudence,” workshop paper presented at Courts and Public Reason in Global Public Law, July 11th WZB Berlin, (2016). See Chapter 11 in this volume for a revised version. Sadurski, “Supranational Public Reason,” 415. Shlomo Agon, “Going Public,” 11. Shlomo Agon, “Going Public”; cf. Sadurski, “Supranational Public Reason,” 415–418. Shlomo Agon, “Going Public.” Ernst-Ulrich Petersmann, “International Economic Law, Public Reason and Multilevel Governance,” Journal of International Economic Law, 14 1 (2011), 23–76; cf. Petersmann, “Human Rights”; Petersmann, “Need for a New Philosophy.”

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IV Conclusion This chapter has examined different meanings attributed to the term public reason in the literature on courts. The term is often confusing, and I have argued that it can help to see that “public reason” can refer both to a type of practical reasoning (public reasoning or engaging in public justification) and to types of reasons or explanations (a public reason and public reasons) that are public in some sense. A full conception of public reason, or a theory of public reason, moreover, will typically combine (1) some interpretation of the general idea of public reason (the idea that political and legal impositions should be publicly justifiable or reasonably acceptable to all in the relevant public), and (2) some ideal or duty of public reason (a specification of the duties conferred on various agents – from ordinary citizens to public officials such as supreme court justices – in order to ensure that political and legal impositions are publicly justifiable). I have also argued that it is possible to speak of a general public reason approach to courts, and that at least six distinctive such approaches can be identified in the literature. Some will no doubt think I have defined the public reason approaches to courts in a way that is too inclusive. Many strongly associate “public reason” with Rawls and restraint-oriented political liberal conceptions of public reason. From this perspective Finnis’ natural law approach to public reason falls short of being a public reason conception at all. Finnis, for his part, sees political liberal public reason as a distorted version of the “true” public reason. Both Rawls and Finnis, however, may be said to adhere to the general idea of public reason. The aim of the chapter has not been to identify what is the right, or best, approach to public reason for courts, but to illustrate how the term takes on wider sets of meanings as it migrates from philosophy to law and political discussions. The proposed typology of public reason approaches to courts aims at making philosophers’, legal scholars’, and political theorists’ references to public reason in discussions about courts more accessible to each other. However, the typology is stylized and can reasonably be questioned. For example, are the liberal, the political liberal, and the deliberative public reason approaches to courts really that distinct? Philosophers typically focus on conflicting background assumptions, and on how the general idea of public justifiability is specified. From such a philosophical and theoretical perspective, the differences between some of the public reason approaches discussed will seem more obvious. What I have called the classical liberal public reason approach, for example, is

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based on a convergence understanding of public reason, whereas the other approaches are based on different versions of a consensus understanding, and the political liberal approach is arguably a mix thereof.110 Another prism through which differences become visible is public reason approaches’ understanding of “the fact of reasonable pluralism.” How an author defines the scope of reasonable pluralism influences the scope of what the author believes to be reasonably acceptable, and what can count as a public justification of an imposition. Legal scholars and legal practitioners, on the other hand, are likely to raise distinctly legal questions to the proposed typology of public reason approaches to courts: Do these various public reason approaches reflect current practices of constitutional and international courts, or do they prescribe a new type of adjudicative reasoning? Do they favor one method of interpretation of the law over another? Or does public reason mark a turn within legal reasoning from interpretation and application of legal rules to justification and political morality? When the focus is jurisprudence, there may be more overlaps between some subvarieties of the liberal, the political liberal, and the deliberative public reason approaches to courts than what seems to be the case when we look at these approaches’ philosophical background assumptions. Kumm, whose various writings have been associated with more than one of the public reason approaches, seems to have the legal perspective in mind when he says that the difference between the liberal, the political liberal, and the deliberative public reason approaches is primarily one of focusing on different questions and emphasizing different institutions or parts of political and legal processes. He also thinks that certain types of jurisprudence – such as a rights-enhancing proportionality testing of contested acts and claims – may be required from all these approaches. And indeed, the discussion above illustrates that specific methods of interpretation and judicial techniques can be embraced by proponents of different philosophical conceptions of public reason, and that philosophical conceptions of public reason do not necessarily translate into a specific jurisprudence. All philosophical conceptions of public reason connect with law, in the sense that they yield a criterion of (fully) legitimate law, and of legitimate constitutional law in particular. Public reason conceptions can also serve 110

Though, as we have seen, Gaus argues that Rawls’s reliance on the idea of an overlapping consensus means that Rawls’s conception lies between the consensus and the convergence approach.

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as a way to ground certain rights and liberties, and public reason has often been discussed as a way to ground and to specify human rights.111 Nevertheless, only some philosophical conceptions of public reason include an ideal of public reason that applies directly to judges’ reasoning in court. In spite of Rawls’s saying that the Supreme Court is the exemplar of public reason, most public reason conceptions have focused on citizens and the legislative and executive branches of government as the main agents tasked with ensuring the public justifiability of public laws and acts. Moreover, among public reason defenders who do discuss courts, we find authors – like Ronald Den Otter, Mattias Kumm, and Wojciech Sadurski – who think that judges and courts should take a lead in securing or checking the public justifiability of laws and public acts, but also authors – like Gerald F. Gaus, John Finnis, and Christopher Zurn112 – who disagree. This chapter’s premise has been that it is possible, and necessary, to group some tendencies in the way that public reason defenders relate to courts and adjudication, in spite of cross-cutting variations. An attempt to do so forms the basis of the chapter’s proposed typology. To sum up some of the findings in relation to jurisprudence: First, those who defend ideals of public reason do not always formulate prescriptions that are meant to inform judges’ reasoning in court. But when public reason defenders do formulate ideals that apply directly to judges, these are often formulated in relation to, or as a response to special circumstances: This includes special types of cases (typically “hard cases,” where black letter law does not seem to provide unequivocal answers, and cases in which judges are sometimes believed to resort to their own moral or private convictions); special circumstances of courts (e.g., new international courts operating in legal regimes with incomplete treaties or legislative bodies that are not effective in passing new laws, and where the judges fill in or develop the law); and special judicial practices where the line between law and politics may be more blurred (such as constitutional review of the acts and justifications of legislative bodies where substantive policy matters come into play, or when they engage reasoning about constitutional essentials with important moral-political implications). Second, we have seen that authors who see public reason as yielding a prescriptive ideal of public reason for judges do not typically prescribe an 111 112

Cf. Finnis, Forst, Kumm, Sadurski, and Michelman. See Zurn in Chapter 12 in this volume.

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entirely new type of adjudicative reasoning. Nor do they argue that courts in general should turn away from interpretation and application of legal rules and substitute this with justification or political morality altogether. In some hard cases judges have to move beyond black letter law and into what looks like political-moral reasoning. Some authors argue that an ideal of public reason will be a better guide for judges in such cases than their private morality, providing an extra check on their reasoning to ensure its public justifiability.113 Yet, it is more common to formulate public reason ideals for judges (or ideals for particular types of judges in particular types of contexts and issue areas) as a specification of, or preference for, certain jurisprudential techniques or methods of interpretation that are recognized in the legal literature and practice, but less commonly or consistently used than the author thinks should be the case. As Lawrence Solum has argued, an ideal of public reason for citizens and the legislature cannot be the same as an ideal of public reason for a judge in court. The latter’s reasoning must primarily be oriented to identifying and applying binding law, and is thus much more restrained than the reasoning of citizens and the legislative and executive branches of government who are at more liberty to try to change the law.114 Given the division of power, and division of labor, between the branches, some may think that a legal formalism is the appropriate “public legal reason” for judges.115 Others argue that when review courts have strong powers of review, and thus de facto political and legislative power, the review courts cannot retreat to strict legalism but must consider the public justifiability of the motivations and reasons offered for contested acts and measures.116 Third, in spite of considerable variation and several exceptions, we can identify some patterns of correlation between authors’ more general conception of public reason and the role and reasoning they prescribe for courts. The political liberal public reason approach in the restraint-oriented variety focuses on ensuring that political and legal impositions are not based on nonpublic reasons, or reasons that cannot be publicly justified. This focus spurs ideals telling judges to check that their own legal 113

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115 116

Cf. Den Otter in Chapter 3 in this volume; cf. Langvatn, “Should International Courts Use Public Reason?” Solum, “Public Legal Reason.” See also Waldron, “Public Reason and ‘Justification’ in the Court Room,” and Frank Michelman in Chapter 4 in this volume. Cf. Solum, “Public Legal Reason.” Cf. Schwartzman in Chapter 2, Den Otter in Chapter 3, Fadel in Chapter 5, and Sadurski in Chapter 9 in this volume.

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reasoning does not rely merely on private intuitions and moral preferences, nor on comprehensive moral, philosophical, or religious doctrines, sectarian reasons, or contested science. It also spurs ideals telling review judges to check that other public officials do not rely on nonpublic justifications. The more positive versions of political liberal public reason, on the other hand, tend to focus more on the role of judges in contributing to a coherent interpretation of the basic political-moral ideas of the constitution in a constitutional liberal democracy. This focus typically yields ideals that encourage judges to provide reasoned opinions, or more teleological, contextual, and evolutionary methods of interpretation,117 and also to check the coherence and sincerity of other public officials’ justification of impositions with an eye to the basic political-moral ideas and values of the regime.118 In comparison, the liberal public reason approach is more explicitly deontological and more likely to formulate an ideal for judges that is orientated toward maximizing individual rights protections. This approach is also more likely to say that the public justifiability of laws requires strong fiduciary review courts that can check their public justifiability, and to support a cosmopolitan understanding of public reason for the international judiciary. The classical liberal public reason approach has a convergence understanding of public reason, and it sets a high bar for seeing a coercive legal imposition as publicly justifiable and a low bar for something to count as a valid reason to object to the law. This means that fewer infringements of individuals’ rights, and especially their right to contract, economy, and property, are seen as justifiable than on most other public reason approaches to courts. Some proponents of this approach are skeptical of courts being used to make laws more publicly justifiable. Others, however, see this approach as translating into a public reason ideal for judges telling them to strike down laws that are officially justified with, for example, religious reasons (because these are reasons to which many citizens will reasonably object) but at the same time telling them to be open to religious reasons as a valid reason for exemptions from public laws. Deliberative public reason proponents are primarily focused on the importance of democratic deliberation and participation. They are 117 118

See Den Otter in Chapter 3 in this volume. Micah Schwartzman, “The Sincerity of Public Reason,” The Journal of Political Philosophy, 19 4 (2011), 275–398.

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typically less enthusiastic about constitutional review courts whose main task is often seen as being a rights-protecting counterweight to majoritarian democracy.119 However, deliberative democrats can also see roles for review courts, and one such role is for courts to scrutinize the procedural and deliberative quality of legislative processes. One variety of this is to say that review courts should act as custodians of public or democratic deliberation, and that the court should be less willing to defer to the government or the legislature when democratic deliberation and democratic procedures are at stake. As we have seen, some also argue that review courts should privilege communicative and participatory rights above other types of rights, and that courts should be more willing to defer if it can be demonstrated that there has been a free and open deliberative process and discussion (e.g., in parliament) prior to the enactment of a rights-infringing law or act. Natural law public reason approaches hold that our reason can identify certain undeniable “basic human goods” that legitimate laws cannot destroy or hinder. This typically leads natural law proponents of public reason to take a nonliberal position in questions about same-sex marriage, abortion, and euthanasia. However, Finnis, who has the most developed version of this approach, argues that judges should not take on the role of making the law more publicly justifiable, and that this should be ensured by the legislative branch. Public reason as justification vis-à-vis a broader audience refers to a strain in the legal literature focused on showing that public reason, or “going public,” is a legitimizing strategy that is actually pursued by certain international courts, or one that should be pursued.120 For a court to use public reason, or go public, here means that it attempts to enhance their normative legitimacy in certain types of cases by making their reasonings and opinions more accessible and acceptable, not only to the parties to the case, or to member states of the regime, but also to a wider public. This strategy can take a range of different forms, such as appealing to a wider set of public values, using more teleological or evolutionary methods of interpretation, and adding “explanatory paragraphs” or “political obiter dicta” to their rulings. Finally, the discussion of this chapter has shown that the term public reason comes with many meanings, and also that there are multiple varieties of the public reason approach to courts. This raises the suspicion 119 120

Cf. Zurn in Chapter 12 in this volume. Cf. Ernst-Ulrich Petersman and Shlomo Agon in Chapter 11 in this volume.

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that a public reason approach does not help us solve familiar disagreements in moral, political, and legal theory, but instead reproduces these lines of division in a different vocabulary. There is indeed a danger that the complex and abstract language of public reason, and the ascent to a focus on reasons and justifications, merely obscures persistent disagreement and divides. Yet, in a time marked by increasing polarization and entrenched positions, the public reason approach also seems particularly promising because it takes very seriously the task of accommodating irreducible differences and persistent disagreements. The suggestion that public justifiability is required in law-making, as well as in adjudication, is an idea that is open and flexible enough to inspire and accommodate a wide range of different traditions of thought, many of which are in stark opposition. Those who affirm a liberal moral theory may be more open to seeing a justification based on a natural law theory as reasonable, if the natural law theory builds on the idea of public reason and is presented as such. Similarly, an originalist constitutional interpretation that is informed by the idea of public reason121 may be more acceptable to someone who sees living constitutionalism as the appropriate interpretative method,122 and vice versa. In short, the type of reasons and justifications given for different moral-political and legal positions matter for their acceptability to those who favor a different position. One specific idea of public reason is not likely to be universally accepted as the right or correct account of political and legal legitimacy. However, it is more likely that authors from different traditions of political and legal theory may come to see the value of reframing their theories so as to make them more accessible and acceptable to those affirming other moral and legal doctrines. Such a willingness may in turn make different political and jurisprudential traditions more likely to see each other as reasonable and to engage more with each other’s ideas, even if they continue to disagree on deep and important issues. This would be no small feat in this day and age. The many public reason approaches identified in the literature and discussed in this chapter confirm that the idea of public reason does indeed find resonance among thinkers from very different political, moral, and legal traditions. 121

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Lawrence B. Solum is an example of a legal scholar who takes a public reason approach, and also favors a version of originalist constitutional interpretation: “original public meaning originalism.” Lawrence B. Solum, “Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate,” Northwestern University Law Review, 113 6 (2019), 1243–1296. See Den Otter in Chapter 3 in this volume.

PART I Public Reason in Constitutional Courts

2 Must Laws Be Motivated by Public Reason? micah schwartzman*

I Introduction When courts exercise judicial review of legislation, should they invalidate laws that are not motivated by public reason? For those committed to the idea of public reason,1 it may seem natural to answer this question in the affirmative. At least in the United States, and perhaps in other systems with constitutional courts, judicial review of legislative motivation is a familiar practice across a range of doctrines.2 Public officials are *

1

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For helpful comments and discussion, I thank Richard Fallon, Richard Garnett, Deborah Hellman, Leslie Kendrick, Silje A. Langvatn, James Nelson, Mark Rosen, Richard Schragger, Amy Sepinwall, Lawrence Solum, Nelson Tebbe, and audiences at the 2017 Annual Law & Religion Roundtable and the Courts and Public Reason in Global Public Law workshop at WZB in Berlin. When referring to public reason, I have in mind roughly Rawls’s conception of it. For purposes of this paper, I will assume basic familiarity with that conception, which requires public justification based on shared or public reasons. See John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 212–225; John Rawls, “The Idea of Public Reason Revisited,” in Samuel Freeman (ed.), Collected Papers (Cambridge, MA: Harvard University Press, 1999), p. 573; Jonathan Quong, “On the Idea of Public Reason,” in Jon Mandle and David A. Reidy (eds.), A Companion to Rawls, (Chichester: Wiley Blackwell, 2014), pp. 265–280. I leave aside for now competing views of public reason based on convergence conceptions of public justification. See, e.g., Gerald Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (Oxford: Oxford University Press, 1996); Kevin Vallier, Liberal Politics and Public Faith: Beyond Separation (New York: Routledge, 2014). For a helpful introduction to the idea of public reason, and to Rawls’s account of it, see Chapter 1 in this volume. There is substantial legal literature on the role of courts in reviewing the motivations of governmental actors. For a classic work in constitutional law that makes motivation central to a theory of judicial review, see John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), pp. 136–147. For more recent work, see Leslie Kendrick and Micah Schwartzman, “The Etiquette of Animus,” Harvard Law Review, 132 (2018), 1–38; Andrew Verstein, “The Jurisprudence of Mixed Motives,” Yale Law Journal, 127 (2018), 1106–1175; Aziz Huq, “What is Discriminatory Intent?” C ornell Law Review, 103 (2018), 1211–1292;

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restricted in the reasons that they can rely upon in enacting and applying legitimate laws. To give a few examples, they may not act on the basis of racial animus or archaic sexual stereotypes or act to suppress the expression of controversial political viewpoints, or primarily to advance a particular set of religious beliefs. All these motivations are forbidden by various constitutional doctrines.3 It is possible to generalize from such doctrines and to see them as reflecting a broader principle of political legitimacy, according to which laws are morally permissible only when they are motivated by reasons that citizens can reasonably accept as free and equal members of a pluralistic democratic society.4 Laws motivated in this way are capable of satisfying the demands of public reason. They can be openly and publicly justified to those who are governed by them. When laws are not motivated in this way, however, courts entrusted with powers of judicial review may have a role to play in scrutinizing such legislation. Courts can serve as a constitutional check by rejecting laws based on reasons that are not widely shared or that otherwise contravene liberal principles of justice. The idea that courts should exercise judicial review of legislative motivation to determine whether laws are supported by sufficient public reasons can be challenged on numerous grounds. Some critics object to the practice of judicial review as antidemocratic.5 Others argue that even if judicial review is justifiable, courts should not invalidate laws based on the motivations, intentions, or purposes of the legislators who enacted them. Some powerful institutional objections have been raised against judicial review of legislative motivation, including that legislatures have no unified

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Katherine Shaw, “Speech, Intent, and the President,” Cornell Law Review, 104 (2019), 1337–1400. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 US 252 (1977) (reviewing legislative motivation for evidence of racial animus); U.S. v. Virginia (rejecting “actual purpose” based on sexual stereotypes); R.A.V. v. City of St. Paul, 505 US 377, 382 (1992) (prohibiting government regulation of speech based on “disapproval of the ideas expressed”); and McCreary County v. ACLU, 545 US 844 (2005) (upholding Establishment Clause challenge to government religious expression on the grounds that it had no primary secular purpose). For an argument along these lines, see Wojciech Sadurski, “Motives and Effects in the U.S. Constitutional Law and Theory,” available at http://papers.ssrn.com/sol3/papers.cfm? abstract_id=2432761; Wojciech Sadurski, “Searching for Illicit Motives: Constitutional Theory of Freedom of Speech, Equal Protection, and Separation of State and Religion,” available at http://papers.ssrn.com/sol3/papers.c ?abstract_id=2461950; see also Lawrence B. Solum, “Public Legal Reason,” Virginia Law Review, 92 (2006), 1449–1501. See, e.g., Jeremy Waldron, “The Core of the Case Against Judicial Review,” Yale Law Journal, 115 (2006), 1346–1406; Mark Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999).

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motivations or intentions;6 that even if they do, courts cannot reliably ascertain them;7 and that review of legislative motivation raises concerns about the separation of powers and proper deference to legislative authority.8 Furthermore, even assuming that courts should exercise judicial review, including of legislative motivation, many critics object to the idea of public reason and to the liberal principle of legitimacy associated with it.9 In what follows, I want to bracket many of these larger concerns about judicial review, including various institutional objections to the review of legislative motivation. Thus I will assume that courts exercise judicial review, that legislative motives and intentions may exist at least in some range of cases, and that courts can sometimes ascertain them. In addition to these admittedly controversial assumptions, I also want to set aside fundamental criticisms of the idea of public reason. My working assumption will be that a Rawlsian idea of public reason, or some version of it, is the most attractive conception of public justification.10 Given all of these assumptions, I can restate my initial question as follows: If courts are tasked with measuring the legitimacy of laws in terms of public reason, are there reasons for them to uphold laws even if those laws are not motivated by public reasons?11 An argument for ignoring legislative motivation turns on what might be called the permissibility objection, which holds that whether a law is 6

7

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See, e.g., Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), pp. 119–146; Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), pp. 16–23; Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), pp. 317–327. For a classic statement of this objection, see United States v. O’Brien, 391 US 367, 383–84 (1968); for discussion, see Sadurski, “Motives and Effects,” pp. 7–11. For historical examples stating these concerns, see Caleb Nelson, “Judicial Review of Legislative Purpose,” New York University Law Review, 83 (2008), 1811–1812. The literature here is vast and growing. For surveys of objections, along with responses to them, see Jonathan Quong, “Public Reason,” Stanford Encyclopedia of Philosophy (2013), available at http://plato.stanford.edu/entries/public-reason; Ronald C. Den Otter, Judicial Review in an Age of Moral Pluralism (Cambridge: Cambridge University Press, 2009), pp. 200–230. For an excellent and extended defense of this assumption, see Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011). Although the focus of this chapter is mainly on legislative motivation, the question of whether legal decisions must be motivated by public reason extends to not only legislators but also executive officials, judges, and citizens when they exercise political power. See Micah Schwartzman, “Official Intentions and Political Legitimacy: The Case of the Travel Ban,” in Jack Knight and Melissa Schwartzberg (eds.), NOMOS LXI: Political Legitimacy (New York: New York University Press, 2019), pp. 201–230.

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motivated by public reason is irrelevant to determining its moral permissibility. This objection draws on recent work in moral theory that denies the relevance of motivations or intentions for the permissibility of an agent’s actions.12 The permissibility of actions turns on whether they are justified, not on whether agents are motivated by the relevant justifications. If this objection is correct, then courts may be mistaken when they review legislation for illicit motivation.13 Their focus should be on whether laws are publicly justified and not on whether they are properly motivated. In response to this permissibility objection, I will defend the view that courts can properly engage in judicial review of legislative motivation. First, I will argue that in some cases, legislative motivation is directly relevant to the moral permissibility of laws and thus to their legitimacy. Second, even if legislative motivation is not directly relevant, it may relate to the permissibility of laws in various indirect ways that raise concerns under an idea of public reason. Third, I will consider the possibility of mixed-motive cases and argue that official actions motivated by nonpublic reasons may be permissible under certain conditions. I will conclude that whether legislative motivation matters directly or indirectly to the permissibility of laws, and even in mixed-motive cases, courts have reason to give close scrutiny to laws that are not motivated by public reasons.

II The Permissibility Objection The permissibility objection holds that the motivations of legislators and public officials are irrelevant for determining the moral permissibility, and hence the political legitimacy, of policies, laws, and other forms of state action. The argument for this objection goes something like this: An agent’s motivation, intention, or purpose14 – in other words, the reason for which an 12

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See T. M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (Cambridge, MA: Harvard University Press, 2008); Deborah Hellman, When Is Discrimination Wrong? (Cambridge, MA: Harvard University Press, 2008), pp. 138–168; Judith Jarvis Thomson, “Physician-Assisted Suicide: Two Moral Arguments,” Ethics, 109 (1999), 497–517. For discussion of earlier variants of this objection, especially among consequentialists, see Steven Sverdlik, “Motive and Rightness,” Ethics, 106 (1996), 328–332. For a recent argument along these lines, see Richard Fallon, “Constitutionally Forbidden Legislative Intent,” Harvard Law Review, 130 (2016), 523–589. For a reply to Fallon, see Michael C. Dorf, “Even a Dog: A Response to Professor Fallon,” Harvard Law Review Forum, 130 (2016), 86–94. Much of the recent literature on moral permissibility focuses on intentions rather than on motivations or purposes. I will use these concepts interchangeably to describe the reasons that legislators, public officials, and citizens understand themselves to be acting upon

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agent understands herself to be acting – does not determine whether that action is permissible, in the sense that the agent is allowed, morally speaking, to take the action in question.15 The permissibility of an action, such as enacting or applying a law, is determined by moral principles that specify the conditions under which that action may be taken. Those conditions may sometimes make an agent’s motivations relevant, but often they will not. And even if they do, motivations would then be relevant only indirectly or derivatively. They cannot directly or fundamentally determine whether an action is morally permissible.16 If motivations cannot function in this way, then the reasons that move legislators and public officials to enact or apply laws cannot directly affect the permissibility of those actions. Moreover, if the permissibility objection holds, it may make a law’s motivation irrelevant to moral evaluation of the law’s legitimacy.17 To the extent that a law’s permissibility is a condition of its political legitimacy – whether the state has a moral right to require compliance with the law – the motivations for the law are not directly relevant to determining whether that condition has been satisfied. And if the motivations for a law are not relevant in this way, and if they are not otherwise made indirectly or derivatively relevant by some set of moral principles (such as those specified by an idea of public reason), then courts tasked with reviewing the legitimacy of laws may ignore the motivations for them. The permissibility objection is consistent with the view that laws must satisfy the conditions of moral permissibility established by the idea of public reason. For laws to be legitimate, it must be possible to offer public justifications for them. But the upshot of the objection is that unless the idea of public reason includes independent motivational requirements (an issue I address in Section V), the motivations of public officials in

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when advocating, enacting, and applying the law. I realize, of course, that these concepts can be used in different ways and that they have been analyzed with a great deal of sophistication in the philosophical literature. But to the extent that proponents of the permissibility objection have applied it to intentions, motivations, and purposes, nothing in the argument above turns on distinctions between these concepts. For further discussion on this point, see Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011), p. 139; Hellman, When Is Discrimination Wrong?, pp. 140, 162. Scanlon, Moral Dimensions, pp. 52–56; Hellman, When Is Discrimination Wrong?, pp. 62–67; Thomson, “Physician-Assisted Suicide,” 516; F. M. Kamm, “Failures of Just War Theory: Terror, Harm, and Justice,” Ethics, 114 (2004), 666. Scanlon, Moral Dimensions, pp. 13, 40. For more on the role of intentions in theories of political legitimacy, see Schwartzman, “Official Intentions and Political Legitimacy.”

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advocating for, enacting, and applying legislation are not otherwise relevant to determining the permissibility or legitimacy of those laws.

III Motivating the Permissibility Objection This sketch of the permissibility objection raises many questions. The first, and most important, is this: Why are motivations not directly relevant to permissibility? Then, what is the argument for that claim? Another important question involves how moral principles that specify conditions of permissibility can make motivations indirectly or derivatively relevant. But to start with the claim that motivations are not directly relevant, and to get a better sense of the permissibility objection, it will be useful to consider some examples. Proponents of the view that intentions are irrelevant to permissibility often focus on cases involving the Doctrine of Double Effect (DDE), which can be formulated as holding that an action that harms others is permissible only if (1) an agent does not intend the harm18 but rather merely foresees it, and (2) the good effects of the action are proportional to its harmful or bad effects.19 This doctrine invites criticism in part because it makes an agent’s motivations or intentions necessary for the permissibility of harmful actions. If DDE is mistaken, as the permissibility objection implies, showing why may help to clarify the relationship (or lack thereof) between motivation and permissibility. A standard example used both to illustrate and criticize DDE involves a comparison between the actions of a “tactical bomber,” who destroys military targets while foreseeing but not intending the death of noncombatants, and a “terror bomber,” who takes the same actions while intending to kill noncombatants for the purpose of terrorizing the civilian population.20 According to proponents of DDE, the tactical bomber’s actions may be permissible, provided the benefits of destroying military targets are proportional to the harms caused to civilians. But the terror

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In place of “does not intend the harm,” we could say “is not motivated by causing the harm.” There is no canonical formulation of DDE, but for similar versions, see Scanlon, Moral Dimensions, pp. 1–2, 28–29; Hellman, When Is Discrimination Wrong?, pp. 151–152; Thomson, “Physician-Assisted Suicide,” 510. Scanlon, Moral Dimensions, p. 28; Hellman, When Is Discrimination Wrong?, p. 152; see also Matthew Liao, “Intentions and Moral Permissibility: The Case of Acting Permissibly with Bad Intentions,” Law & Philosophy, 31 (2012), 704–705.

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bomber’s actions are morally forbidden because he intends, rather than merely foresees, the bad effects he causes. In response to this example, critics have argued that it is implausible to think that the intentions or motivations of the two bombers can determine the permissibility of their respective actions.21 Suppose the two bombers are copilots. They undertake precisely the same bombing mission, so the effects of their actions are identical. All that differentiates them are what they understand to be the reasons for their actions. One acts from military duty to degrade the enemy’s destructive capacity, while the other aims to kill civilians in order to spread terror. After the pilots have returned from their bombing run, does it make sense to say it was permissible for one pilot to fly the mission but not the other? Although critics of DDE argue that this example shows that intentions are fundamentally irrelevant to permissibility, they agree that intentions matter in evaluating the moral character of those who act for different reasons. The pilots were allowed to fly their mission because, whatever their intentions or motivations, it is sometimes justifiable to use lethal force to achieve military gains, provided those gains are proportional to harms imposed on civilians. But even if we recognize that both pilots were allowed to fly the mission, we can still adopt different understandings about the meaning or significance of their actions. If one pilot tells us that he flew his mission in order to kill civilians, or that he was motivated by the aim of terrorizing noncombatants, we should condemn that pilot for acting on reasons that do not justify his actions. But, as Thomas Scanlon argues, the fact that the pilot had bad intentions does not mean that his actions were impermissible.22 What he did was allowed, even if he did it for the wrong reasons. Of course, a person who acts on the basis of such reasons may deserve moral criticism. But according to proponents of the permissibility objection, criticizing the pilot for acting on bad reasons is consistent with saying that he was nevertheless morally justified in flying the mission. Consider a second common example, also drawn from the DDE literature in discussions of physician-assisted suicide.23 A doctor has a patient who is terminally ill and in a great deal of pain. The patient asks the doctor to prescribe medication to relieve the pain, and the doctor complies, foreseeing but not intending that the prescribed medication 21 22 23

Scanlon, Moral Dimensions, pp. 28–29. Ibid. Here I follow Scanlon, Moral Dimensions, p. 153; Thomson, “Physician-Assisted Suicide,” 513–515.

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will hasten the patient’s death. There is wide agreement that the doctor’s actions here are morally permissible. But what if the doctor intends the patient’s death? Worse yet, what if the doctor wants to take revenge on the patient by killing him?24 It would be absurd, argues Judith Thomson, to believe that the permissibility of administering the drug turns on the doctor’s intentions.25 If intentions matter, hospitals could allow doctors to administer drugs to relieve the pain of terminally ill patients while hastening their deaths, but only if the doctors who administer the drugs first confirm that they are acting for the right reasons. And if that result seems wrong – if hospitals can allow doctors to administer drugs under those circumstances without regard to their intentions – then intentions must be irrelevant to the permissibility of their actions. The examples of the terror bomber and the vengeful doctor may seem far away from concerns about whether laws must be motivated by public reason. To bring things back around, and to take a more mundane example, consider what might seem like a typical failure to act on the basis of public reason. Suppose a local school board passes a policy prohibiting school dancing.26 A majority of board members share a religious conviction that dancing is sinful, and motivated by that conviction, they enact a regulation forbidding any future dances at public schools within their jurisdiction. At the same time, a school board in a neighboring town also bans school dances, not because of any religious conviction but because of concerns about alcohol abuse and inappropriate sexual behavior. Suppose, further, that the actions of this neighboring school board are publicly justified. There are, in fact, legitimate concerns about student safety that justify the prohibition on school dances, concerns that apply equally to all the surrounding jurisdictions. If the prohibition is justifiable, which is to say morally permissible, then again, according to the permissibility objection, the religious motivations of the local school board are irrelevant to whether its action is permissible. All that matters is whether the action is independently publicly justifiable. Before turning to some responses to the permissibility objection, let me make two points about these examples and what they are intended to show. First, they share a common structure in that the actions in question – the bombing mission, giving pain medication to terminally ill patients, and 24 25

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For this example, see Thomson, “Physician-Assisted Suicide,” 516. Ibid. But for a reply to Thomson, see Alec Walen, “Permissibly Encouraging the Impermissible,” Journal of Value Inquiry, 38 (2004), 341–354. This example is based on Clayton v. Place, 884 F.2d 376 (8th Cir. 1989) (rejecting Establishment Clause challenge to prohibition on school dancing).

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prohibiting school dances – are assumed to be independently justifiable. That is, if undertaken by someone without a morally questionable motivation, those actions would be permissible. The point of all three examples is to isolate an agent’s motivations and to determine what contribution, if any, that motivation makes in a moral assessment of the agent’s action. More specifically, the question in all the examples is whether motivation alone can change an action that is otherwise permissible into one that is not.27 As we have seen, those who accept the permissibility objection believe that these examples demonstrate that motivations cannot play this role. Second, the permissibility objection denies only that motivations are directly relevant to permissibility. The point is that the motivations themselves are not sufficient to change whether actions are justifiable. Of course, agents who act with different motivations may produce different effects as a consequence. And bad motivations may lead to actions with effects that are not independently morally justifiable. The moral principles that make such effects unjustifiable may also prohibit, derivatively, acting for reasons that lead to those effects. Under those circumstances, an agent’s motivations do not make actions impermissible, but to the extent that acting with certain motivations will lead agents to take actions that are impermissible, agents may not be permitted to act on those motivations.28 In the next section, I argue that the permissibility objection is mistaken because motivations can be directly relevant in making actions impermissible, at least in some cases. But after raising some doubts about the objection, I will then turn to some ways in which the idea of public reason makes motivation indirectly or derivatively relevant to the permissibility of laws.

IV The Direct Relevance of Motivations The argument for the permissibility objection draws its force from examples in which agents’ motivations do not determine the justifiability 27

28

To defeat the permissibility objection, it is not necessary to show that illegitimate motivations are sufficient to make an otherwise permissible act impermissible. All that is necessary is to show that motivations are relevant to that determination, though showing that motivations are sufficient to convert an act from permissible to impermissible is perhaps the clearest way to demonstrate their relevance. Scanlon, Moral Dimensions, pp. 29–32; see also Alec Walen, “The Doctrine of Illicit Intentions,” Philosophy & Public Affairs, 34 (2006), 39–67. For a consequentialist defense of judicial review of legislative motivation based on the bad effects of illegitimate motives, see Gordon G. Young, “Justifying Motive Analysis in Judicial Review,” William & Mary Bill of Rights Journal, 17 (2008), 191–261.

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of their actions. But even if some examples, such as the terror bomber or the vengeful doctor, support the objection, the philosophical literature contains others in which agents’ motivations are relevant in ways that the objection denies.29 Here I want to focus on one subset of such examples involving cases of race discrimination. I focus on these cases because, like the school board example discussed in Section III, they involve agents acting for reasons that clearly contravene the idea of public reason. If agents’ motivations are directly relevant to permissibility in these cases, then there is good reason for concluding that when legislators and public officials are similarly motivated, courts should be concerned about the permissibility of their actions. Consider the following standard case of employment discrimination: Racist Employer: An employer has a choice to hire one of two equally qualified candidates. One candidate is a member of a racial minority, and the other is not. The employer, acting on racist grounds, hires the nonminority candidate.

In this example, the employer could decide between the candidates for any number of reasons, including on the basis of chance. But what she may not do is act on the basis of her racist prejudice to reject a candidate solely because that candidate is a member of a racial minority. Acting on the basis of racist motivations is impermissible. For that reason, this case looks like a counterexample to the permissibility objection. It shows that an agent’s intentions can make impermissible an action that would otherwise be independently justifiable. To explain away the relevance of motivations or intentions in discrimination cases, such as Racist Employer, proponents of the permissibility objection argue, first, that racist motivations are not necessary to show that racial discrimination is impermissible. Such motivations are unnecessary because employers can discriminate impermissibly against racial minorities without them. Consider: Racist Employer 2: Identical to Racist Employer, except that the employer acts from an unconscious bias against racial minorities rather than on the basis of racist intentions or motivations.

In this case, the employer’s action is no more permissible than in the case of the employer who acts consciously on the basis of racist prejudice. The 29

See, e.g., Tadros, Ends of Harm, pp. 158–159; Liao, “Intentions and Moral Permissibility,” 715–719.

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reason is that acting from unconscious bias harms minority candidates. They are denied equal opportunities arbitrarily and in ways that may systematically disadvantage or deprive them of access to important social or public goods. The argument here is that these harmful effects on racial minorities are sufficient to establish the impermissibility of discrimination, even when agents do not act consciously from racist motivations or intentions.30 And if discrimination is impermissible when agents lack illicit motivations, it is equally impermissible when they have them. Thus, if the employer’s decision in Racist Employer 2 is wrong, then the same holds for Racist Employer, in which case there is no counterexample to the permissibility objection. The problem with this argument is that even if racist motivations are not necessary to establish the impermissibility of discrimination, they are nevertheless sufficient. To see this, consider an example offered by Adam Slavny and Tom Parr in which an agent acts on racist motivations without harming racial minorities: Racist Voter: A firm appoints new staff by taking a vote among existing members. One voter wants to reject a particular applicant because of her skin color. He knows that his vote will not affect the result because his coworkers have already agreed to appoint her. Nevertheless, he votes for rejecting the candidate.31

Slavny and Parr argue, rightly I think, that this is a case of harmless discrimination, and yet that the racist voter has acted impermissibly. Even though the voter is not responsible for denying access to any opportunities or goods, it is morally unjustifiable for him to vote on the basis of racial prejudice. If that is correct, then his motivations are directly relevant to the permissibility of his action, which of course contradicts the permissibility objection. Here one might object that the racist voter acts badly but not impermissibly. Although his vote reflects a morally defective character, his action is nevertheless permissible because it had no effect on the outcome. Consider another example along these lines from Deborah Hellman: Orchestra Director: The orchestra of a large city is hiring new musicians. The musical director aims to keep as many Asian and Asian Americans out of the orchestra as possible. Unfortunately for her, the orchestra auditions 30

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See Scanlon, Moral Dimensions, p. 73; Hellman, When Is Discrimination Wrong?, pp. 141–156. Adam Slavny and Tom Parr, “Harmless Discrimination,” Legal Theory, 21 (2016), 107.

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mica h schwartzman musicians behind a screen, to protect against this and other kinds of bias. To achieve her aim, the musical director picks musicians by preferring passion over technique, an approach she believes (mistakenly) will screen out as many Asians as possible. As it turns out, the musical director bases her action on an inaccurate generalization. Asian musicians are not less passionate and more technically skilled than other musicians. As a result, the orchestra selected is one in which passionate musicians outnumber highly technical ones, but one that has the same racial composition (let us suppose) as would have been the case had the director adopted a different hiring policy. Ought her bare desire to harm invalidate the hiring procedure?32

Hellman concludes that it should not. Because the hiring procedure does not work in the way that the director intends, no Asian musicians are harmed by it. And because no one is harmed, the procedure is permissible. But this conclusion is dubious because Hellman’s question of whether the director’s intent should invalidate her procedure is ambiguous. The question might mean: Before the director carries out the procedure, is it permissible for her to adopt it? But Hellman might also be asking: Now that the procedure has been applied, should we reject it along with its results? In my view, the answer to the first question is that, ex ante, it is impermissible for the director to adopt the procedure. And it would be impermissible for her to adopt that procedure even if she knows that it would not work. That is because she should not act on the basis of motivations or intentions that deny the equal moral status of others. But once she has acted, and once a set of musicians has been selected, other considerations come into play, including concerns about fairness to those who are selected. The results of a procedure adopted for illegitimate reasons, and that does not work to anyone’s disadvantage, might nevertheless be accepted based on the interests of those selected. Harmless discrimination cases show that motivations are relevant even when they do not produce actions that disadvantage others impermissibly. The cases in this section focus on denials (or attempted denials) of equal opportunity for employment, but the same point holds for expressive harms. One reason why discrimination may be impermissible is because it insults or demeans racial minorities (or other groups or individuals).33 Discriminatory acts often express the view that minorities are inferior to others, that they have less value or moral worth, or that 32 33

Hellman, When Is Discrimination Wrong?, p. 163. Scanlon, Moral Dimensions, p. 72; Hellman, When Is Discrimination Wrong?, pp. 1–58. For a more general discussion of expressive harms, see, e.g., Elizabeth S. Anderson and Richard Pildes, “Expressive Theories of Law: A General Restatement,” University of Pennsylvania Law Review, 148 (2000), 1527–1531.

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they are not entitled to equal treatment or respect. When agents act in ways that demean others, that fact is obviously relevant to the permissibility of their actions, especially under an idea of public reason that places great importance on respecting the freedom and equality of all members of society. But in the cases discussed, it is not clear that any of the discriminatory acts generate expressive harms. If the employers in Racist Employer and Racist Employer 2 show a pattern of discrimination over time, then perhaps their actions would send a message that they believe minorities are inferior. But if those examples are limited to a single instance, and if the employers’ motivations or unconscious biases are never revealed, there might be no expressive harm. And yet the actions of those employers would still be impermissible. The same holds for the other examples, Racist Voter and Orchestra Director, where the motives of the actors are neither expressed by the actors nor perceived by those affected by their actions. The most straightforward explanation of what is wrong in all these cases is that agents have acted on the basis of illegitimate reasons. But an act may, of course, be impermissible for more than one reason. In some cases, an agent may act wrongfully by acting on improper reasons and also harm others as a result of doing so. Racist Employer is an obvious example in which the employer acts from a racist motive and harms a minority candidate by denying that person an opportunity to be employed without respect to race. The employer’s act is thus wrong for (at least) two reasons: It is based on an illegitimate reason and it harms others. Both reasons are directly relevant to whether the act is permissible, and indeed either would be sufficient to determine its impermissibility. Similarly, consider again the example of the local school board that prohibits dancing for religious reasons. In that case, the board members act for reasons that cannot be justified to other reasonable citizens who do not share their religious perspective. The board’s action is wrong because exercising power on the basis of nonpublic reasons is to act on the view that others are not entitled to be treated as free and equal citizens. Just as the racist employers, voter, and orchestra director act on the belief that racial minorities are inferior and not entitled to equal respect, the school board members are motivated by beliefs that disvalue the interests of others in their community. Their motivation to act in that way is wrongful, and it is sufficient to make their action morally impermissible. But that conclusion is consistent with holding that the board’s

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action may be wrong for other reasons as well. If the board announces its motivation, or if the religious basis for its action is otherwise clear to those affected, the decision to prohibit school dancing may generate expressive harms by signaling the exclusion of religious minorities and others from the political community. Such harms may be sufficient to determine the impermissibility of the board’s action, but that is consistent with the view that the board’s motivations are also directly relevant to that determination. At this point, let me step back from particular examples to make a few more general observations about the permissibility objection. First, because the objection is motivated by examples that are designed to test intuitions about the relevance of motivations for permissibility, it is also vulnerable to counterexamples. But the stringency of the objection – holding that intentions are never directly relevant to permissibility – means that even a few counterexamples should raise concerns about its general plausibility or at least questions about the range of cases to which it applies. Second, and relatedly, unlike the bombing and physician-assisted suicide cases, the discrimination examples have features that should give them greater salience in arguments about whether laws must be motivated by public reasons. These cases not only involve decisions based on nonpublic reasons, as mentioned above, but they also describe agents who have time to deliberate about their actions, who are likely to be repeat players, and whose actions involve the discretionary distribution of goods and opportunities. All of those features will often be the case for legislators and public officials. By contrast, the standard DDE cases, involving trolley problems, terror bombers, and assisted suicide, often have built into them a sense of urgency, requiring time-pressured decisions. This is what Matthew Liao has perceptively described as the “must act” factor. In these cases, something must be done, and it must be done right now.34 But while public officials and legislators must sometimes act urgently, there will often be time to sort out motivations and intentions as well as to argue about and test different reasons for actions, especially with respect to enacting and applying legislation. Thus, even if the discrimination cases described above are limited in their scope, they may provide better guidance than the type of emergency decisions presented in other examples. Lastly, one might object that the permissibility objection raises fundamental questions about the deep structure of morality. And since 34

Liao, “Intentions and Moral Permissibility,” 713.

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reasonable people disagree about the objection, public officials should avoid making decisions that turn on whether laws are motivated by legitimate ends. Although I have some sympathy with this response, my answer is, first, that these arguments appeal to intuitions that do not depend on any particular comprehensive doctrine. They can be shared by those with a wide range of ethical, philosophical, and religious views. The examples that motivate opposition to the permissibility objection are also easily accessible and draw on common experience. So even if there are reasonable disagreements about how to respond to actions that are impermissibly motivated, it may be possible to resolve those disagreements on the basis of public reason. A further and perhaps more fundamental response is this: The idea of public reason is based on the notion that when private individuals act in their public capacity, whether as citizens or public officials, they have a responsibility to make decisions on the basis of reasons that others can reasonably accept. Satisfying this demand for public justification requires respect for others as rational and reasonable agents, who are also free and equal members of a fair system of social cooperation. To respect others in this way means exercising power, or at least one’s share of it, on the basis of public reason. This is how citizens fulfill their “duty of civility.”35 If we accept this much, as I believe we should, then holding that motivations can be relevant to whether acts are permissible seems like a fairly natural extension of a commitment to treating others on the basis of reasons that they can reasonably accept.36

V The Indirect Relevance of Motivations The permissibility objection holds that motivations cannot be directly relevant to the permissibility of actions, but as we have seen, it allows that motivations may be indirectly relevant. Although there are various ways in which motivations can be indirectly relevant,37 I will mention only two 35 36

37

Rawls, “Idea of Public Reason Revisited,” p. 576. To say that motivations can be relevant does not mean that an idea of public reason must find that motivations are always relevant. I pursue this point below in Section VI. Scanlon discusses another form of indirect relevance, what he calls “expectation” cases, in which “someone enters into a certain relation with an agent . . . only because he or she assumes . . . that the agent has certain intentions, or is moved by certain reasons and not others.” See Scanlon, Moral Dimensions, pp. 39–40. In such cases, intentions are relevant to permissibility but in a derivative way, Scanlon argues, because their relevance depends on a “more basic moral requirement not to mislead others or to take advantage of their mistaken beliefs about one’s intentions.” Ibid., p. 40.

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that are especially significant in the context of courts reviewing the actions of public officials: First, as noted previously, motivations can change the meaning of actions in ways that make those actions impermissible, and second, they can create a risk that public officials will act in ways that are impermissible. First, there is widespread agreement that an agent’s motivations or intentions can alter the meaning or significance of an action.38 To take a simple example, suppose the government bans pork. The meaning of that action can vary considerably depending on the government’s reasons. If the government were responding to a dangerous contagion in the nation’s pork supply, then the prohibition can be reasonably understood as a measure to protect public health and safety. But if the prohibition is motivated by a religious injunction against eating pork, then its action may be reasonably understood by others as the political majority’s legal imposition of its religious doctrine. Thus, the same legal action – the prohibition of pork consumption – can have widely divergent meanings depending on why public officials have undertaken it. Government actions that manifest or express a motivation to treat citizens in ways that are not consistent with their freedom and equality are prima facie impermissible. As we have seen, the motivations for such actions may be directly relevant to their permissibility, even when they are hidden or not expressed by an agent’s actions. But when such motivations are apparent to others, whether or not an agent intends to communicate them, there is an added dimension of expressive harm.39 And to the extent such harms are inconsistent with an idea of public reason, which presumably would prohibit them on the grounds that they demonstrate a failure to treat citizens with equal respect, actions that generate such harms are therefore impermissible. The motivations that produce such actions are thus relevant to their impermissibility in part derivatively, that is, because they cause harms that are independently prohibited by applicable moral principles, here the conditions established by the idea of public reason. A second way in which motivations can be indirectly relevant to moral permissibility is by creating a risk that agents will act in ways that are independently impermissible. Scanlon calls this the “predictive significance” of an agent’s intentions.40 For instance, in the terror bomber 38

39 40

See, e.g., ibid., pp. 52–56; Thomson, “Physician-Assisted Suicide,” 515–516; Hellman, When Is Discrimination Wrong?, pp. 166–167. See Anderson and Pildes, “Expressive Theories,” 1527. Scanlon, Moral Dimensions, pp. 30–32.

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example, a pilot may be morally justified in bombing military targets even though doing so will harm noncombatants. But if the pilot aims at harming noncombatants for the purpose of terrorizing civilians, the pilot may have a propensity to harm noncombatants in ways that are not otherwise morally permissible. A military commander who knows that a pilot intends to harm civilians might predict that the pilot poses an additional risk of unjustifiable harm and, for that reason, conclude that it is impermissible to allow the pilot to fly bombing missions. Or consider the role of predictive significance in some of the other cases mentioned in Section III. If we know that doctors want to take revenge on their patients, we should be concerned that they will treat those patients in ways that are morally unjustifiable. The same goes for the local school board that acts for religious reasons. It might be morally permissible to prohibit school dances. Maybe there are, in fact, sufficient public reasons for adopting such a policy. But the fact that the school board does not act on the basis of those reasons should raise concerns about whether the board is willing to act on religious grounds even if there are no public justifications available to support its actions. The more general concern here is that when agents act for illegitimate reasons, there is no reason to expect that they will constrain themselves to act in ways that are permissible. In the standard DDE examples, agents who act from improper motives just happen to produce results that are independently justifiable. The terror bomber is seated next to the tactical bomber, and together they fly an otherwise permissible mission. The vengeful doctor does exactly what a benign doctor would do. But the moral constraints that exist within these examples are entirely artificial – deus ex machina.41 In the world as we know it, the reasons for which agents act often provide us with guidance about the likely effects of their actions. And when their reasons are illegitimate, that should raise concerns about whether their actions will have effects that are not morally justifiable.42

VI Mixed-Motive Cases So far, I have argued that motivations can be directly and indirectly relevant to the moral permissibility of an agent’s action. But how should 41 42

Ibid., p. 31. For application of this point in the context of President Donald Trump’s travel ban, see Schwartzman, “Official Intentions and Political Legitimacy,” 222–223.

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we think about an agent who has multiple motivations or reasons for action, where one reason is legitimate and the other is not? For example, suppose the members of the local school board believe that (1) dancing in public is sinful, and (2) public school dances are dangerous because students drink too much and are prone to risky behavior (e.g., drunk driving, sexual assault, etc.). When asked why the board is banning school dances, they offer both reasons. Should the fact that one of those reasons is not sufficient to justify the ban be a reason to reject the policy? If the school board’s public reasons are indeed sufficient to justify the policy, then my answer is that the policy is generally permissible. The reason is that according to the idea of public reason, public officials are only required to offer public reasons that they sincerely believe are sufficient to justify their actions. And the school board members have met that demand. They may have other, nonpublic reasons that support their policy, and some citizens may also find those reasons persuasive. But others who reject their religious views are nevertheless in a position to understand and accept that the board’s policy is supported by a sufficient public justification. Now those citizens who reject the board’s view might have other reasons to complain about its action. They might claim that its public health and safety arguments are insincere and that its public reasons are merely ex post rationalizations for a ban motivated on religious grounds.43 Indeed, if the proffered public reason is, in fact, not sufficient to support the ban, there might be some evidence that the policy is improperly motivated and therefore impermissible. In mixed-motive cases, judicial scrutiny of public justifications may be called for to discern whether they are merely pretexts for policies that would not be adopted except for improper motivations.44 Another objection might be that even if the board’s public reasons are sincere, and even if they have merit, the board’s public expression of religious convictions to justify its policy raises concerns about the predictive significance of those convictions. In other words, others might worry that the board would be disposed to support policies even if there are no public justifications for them. Again, this might be a reason for careful review of the board’s policy decisions, but the fact that publicly justified policies happen to overlap with religious injunctions is not, in itself, a basis 43

44

For an argument that the idea of public reason requires public officials to offer others sincere public justifications, see Micah Schwartzman, “The Sincerity of Public Reason,” Journal of Political Philosophy, 19 (2011), 375–398. See, e.g., McCreary County v. ACLU, 545 US 844 (2005).

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for invalidating them.45 Many criminal laws – for example, the prohibitions on theft and murder – are overdetermined in this way. That officials are motivated on the basis of a multiplicity of reasons, both public and nonpublic, is not a problem under the idea of public reason. Indeed a virtue of that idea is that it allows legitimate legislation to draw support from a wide diversity of reasonable ethical, philosophical, and religious perspectives. My claim up to this point is that laws, including those supported by mixed motives, are permissible when they are motivated by at least one sufficient public justification. But here I want to consider a further objection, which is that a law need not be motivated by public reason, provided that citizens and public officials believe the law is justified by a sufficient public reason. This objection stems from previous work in which in I have argued that the idea of public reason does not entail a motivational requirement.46 The duty of civility is satisfied when officials sincerely believe that the policies they support are justified by sufficient public reasons. Believing that a reason is sufficient to justify a policy is not the same as being motivated by that reason. If a reason is motivational only when it is the actual cause or basis of one’s action, then one might believe that a reason is a sufficient justification without being moved by it.47 45

46 47

See, e.g., Harris v. McRae, 448 US 297, 319–20 (1980) (“Although neither a State nor the Federal Government can constitutionally ‘pass laws which aid one religion, aid all religions, or prefer one religion over another,’ it does not follow that a statute violates the Establishment Clause because it ‘happens to coincide or harmonize with the tenets of some or all religions’.”) (internal citations omitted). See Schwartzman, “Sincerity of Public Reason,” 387–390. For example, Martin Luther King Jr. advocated for dismantling racially discriminatory laws on the grounds that such laws were unjust. And he defined an “unjust law” as one that “does not square with the law of God.” But when challenged to defend his actions to those who are not religious, King responded as follows: Well, somebody says that that does not mean anything to me; first, I don’t believe in these abstract things called moral laws and I’m not too religious, so I don’t believe in the law of God; you have to get a little more concrete and practical. What do you mean when you say that a law is unjust, or a law is just? Well, I would go on to say in more concrete terms that an unjust law is a code that the majority inflicts on the minority that is not binding on itself . . . . Another thing we can say is that an unjust law is a code which the majority inflicts upon the minority, which that minority had no part in enacting or creating, because that minority had no right to vote in many instances, so that the legislative bodies that made these laws were not democratically elected. Martin Luther King Jr., “Love, Law, and Civil Disobedience,” in James M. Washington (ed.), A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (New York: HarperCollins, 1986), p. 49.

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To be sure, and as previously noted, when public officials offer public reasons that do not motivate them, they may need to alleviate concerns about their sincerity and about the sufficiency of their reasons.48 With respect to sincerity, they should avoid advancing reasons that they believe are insufficient to justify their actions. If public officials do advance such reasons, perhaps in order to persuade others, they should disclose that they believe those reasons to be insufficient. And they should supplement insufficient reasons with sincere public justifications. Furthermore, if officials are not motivated by those justifications, they should test them for sufficiency by asking whether they would be motivated by them if they were not moved by other reasons. Another way to formulate this counterfactual test would be to ask whether others who do not share their motivations could be moved by the public justifications offered to them. If not, that would be a reason to doubt the sufficiency of those justifications.49 But even if officials are sincere, and even if they satisfy a counterfactual test for the sufficiency of their public justifications, an idea of public reason that lacks an actual motivational requirement might seem to be in tension with the claim that motivations or intentions can be relevant, both directly and indirectly, to the moral permissibility of an agent’s actions. There are, however, ways to reconcile these positions. The most promising, I think, is by recognizing that although public officials need not be motivated in any particular case by public reasons, they should have a more general motivation to abide by the idea of public reason. This second-order motivation may serve to constrain official actions by excluding first-order motivations that are inconsistent with the demands of public reason. Public officials who are motivated to fulfill their duty of civility will be disposed to treat others in a manner consistent with their status as free and equal citizens. They will also be less likely to generate expressive harms and to raise concerns about the predictive significance

48

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Perhaps these arguments from democratic reciprocity and fair political representation were part of King’s motivation for opposing racial segregation. But it is also possible that he was motivated by religious convictions and, at the same time, sincerely believed that those political arguments were sufficient to justify opposition to racist laws. In other words, without being motivated by public justifications for his political views, he nevertheless could have believed that others could reasonably accept and indeed be motivated by those justifications. For responses to concerns that those acting on nonmotivating reasons may be insincere or manipulative, see Schwartzman “Sincerity of Public Reason,” 387–389; see also Micah Schwartzman, “The Ethics of Reasoning from Conjecture,” Journal of Moral Philosophy, 9 (2012), 521–544. See Schwartzman, “Sincerity of Public Reason,” 395.

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of motivations based on nonpublic reasons, since those would be constrained, at least for public purposes, by the requirement that they be accompanied by sufficient public reasons. Thus, a general or secondorder motivation to abide by a duty of civility should alleviate concerns that nonpublic reasons might count, either directly or indirectly, against the permissibility of public actions.50

VII Conclusion The question that I have been asking is whether courts have reason to invalidate laws that are not motivated by public reason. One answer to that question, premised on the permissibility objection, is that courts should focus on whether laws are justified by public reasons and not on whether they are motivated by public reasons. Part of the answer to this objection is to say: Of course, courts should focus on whether laws are publicly justified, but how laws are motivated can also be relevant, in direct and indirect ways, to their justification. That is consistent with saying that legislative motivation is not always relevant. To defeat the permissibility objection, it is only necessary to show that the motivations of public officials can be directly relevant in some cases. And even when motivations are not directly relevant, they may have expressive and material effects that matter for determining whether officials’ actions are permissible. In those cases, courts may be morally, and perhaps legally, justified in taking into consideration the reasons for which public officials have enacted and applied the law. 50

As a practical matter, it may be impossible to know whether officials are motivated by public reasons or whether they sincerely believe that such reasons are sufficient to justify their actions. But this merely reflects a more general epistemic problem for the relevance of motivations in judicial decision-making, and I will not attempt to address that objection here, except to say that courts are sometimes confronted with easy cases in which public officials openly flout these requirements. And in such cases, epistemic difficulties are no bar to evaluating the relevance of motivations. See Sadurski, “Motives and Effects,” 7–11; Kendrick and Schwartzman, “Etiquette of Animus,” 168–169.

3 The Importance of Constitutional Public Reason ronald c. den otter*

Despite the growth of scholarship on John Rawls’s idea of public reason over the last two decades, most American legal scholars have been slow to recognize its significance for law.1 A public reason approach to constitutional adjudication could supplement well-known constitutional interpretive methodologies – like originalism, moral reading, structuralism, perfectionism, living constitutionalism, pragmatism, judicial minimalism, and representation reinforcement – or it could stand on its own as an alternative.2 This failure on the part of American legal scholars is not only surprising, given the applicability of public reason to American constitutional theory, doctrine, and practice; it is also unfortunate inasmuch as constitutional theorists are not availing themselves of one of the most interesting ideas found in contemporary political philosophy literature. The main purpose of this chapter is to explain why American legal scholars should develop a conception of public reason that suits the particulars of the American legal system.3 I will call such reason “constitutional public reason” (hereinafter, CPR) to distinguish it from legal

*

1

2

3

I would like to thank Andrew Lister and especially Silje A. Langvatn, whose thoughtful comments were invaluable. One notable and early exception to this lack of scholarly attention is Lawrence Solum, who has developed what he refers to as an ideal of “legal public reason,” which is a “subset of the ideal of public reason” that serves as “a normative standard for the practice of justification by lawyers, judges, and other officials.” Lawrence B. Solum, “Public Legal Reason,” Virginia Law Review, 92 (2006), 1453; See also Wilfrid Waluchow, “On the Neutrality of Charter Reasoning,” in Jordi Ferrer Beltran, Jose Juan Moreso, and Diego M. Papayannis (eds.), Neutrality and Theory of Law (Netherlands: Springer, 2013), pp. 203–224. For example, public reason is not even mentioned in one of the best edited volumes of American constitutional theory: Michael J. Gerhardt, et. al., Constitutional Theory: Arguments and Perspectives, 4th ed. (Danvers, MA: Matthew Bender, 2013). For my initial explanation of this concept, see Ronald Den Otter, Judicial Review in an Age of Moral Pluralism (New York: Cambridge University Press, 2009), pp. 139–171.

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public reason more generally and to put it in the context of constitutional adjudication and judicial review. The other purpose is to address an obvious objection to CPR, namely that it would be too shallow to provide much normative orientation when judges must answer the most challenging constitutional questions.4 I call this objection the “indeterminacy objection.” The objector alleges that even if judges were to endorse the same conception of CPR before deciding hard constitutional cases, it still might be indeterminate; that is, even under the best of circumstances, CPR would generate a plurality of public reasons in support of different constitutional conclusions without a procedure for deciding where the balance lies. As such, a judge might have no choice but to resort to nonpublic reasons to break ties, thereby defeating the very purpose of public reason: to eschew controversial reasons that reasonable people would be warranted in rejecting. This objection to CPR cannot be put to rest once and for all. My strategy is to take some of the sting out of it by illustrating how one can raise the same concern about any plausible approach to judging in hard constitutional cases, particularly those that allow or encourage judges to rely upon nonpublic reasons. While some indeterminacy cannot be avoided in constitutional adjudication, nobody should assume that every single conception of CPR would be unambiguously worse in this regard than the alternatives, at least prior to its specification. As it turns out, CPR probably is no more prone to indeterminacy than any other theory of constitutional adjudication. Indeed, such reason may generate more determinacy when the pool of reasons that judges may draw from is considerably smaller. This chapter is divided into the following sections. First, I give an overview of public reason, especially for readers who are not well acquainted with the concept, by articulating its meaning in John Rawls’s later work on political liberalism. I proceed to describe how it is supposed to operate in a constitutional democracy, like that of the United States, and explain why proponents of public reason are preoccupied with keeping nonpublic reasons out of politics. Second, I elaborate on the appeal of public reason by showing how it could improve constitutional adjudication. In sharing my own preliminary take on what a conception of CPR could look like, I hope to alert scholars 4

As Rawls writes, “Public reason often allows more than one reasonable answer to any particular question.” John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 240.

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to the importance of working out the details of such a conception. Third, I address some aspects of the indeterminacy objection to CPR. Finally, I respond to this objection and conclude with some thoughts on the future of CPR, suggesting where future points of contention are likely to emerge.

I Public Reason 1 The Role of Public Reason in a Constitutional Democracy For Rawls, the need for public reason arises in the first place due to the fact of reasonable pluralism of conceptions of the good and religious, moral, and philosophical doctrines in contemporary constitutional democracies (hereinafter, reasonable pluralism).5 The breadth and depth of such pluralism poses a serious political challenge for any political community that wants its most important political decisions to be legitimate in the eyes of its reasonable citizens and noncitizens. Public reason is meant to function as the shared reason of a society where the citizens do not have the same deeper doctrinal beliefs, but where the society must still make collective decisions that are supposed to bind everyone.6 A political community that is not diverse in this way would be beyond the kind of public reason that Rawls envisages in his later work. The philosophical literature concerning the scope, audience, content, application, structure, fora, and psychology of public reason continues to grow. At a theoretical level, different versions of public reason – strong consensus, weak consensus, and convergence versions – compete for adherents.7 Those who want to see the idea appropriated for constitutional purposes can no longer default to Rawls’s conception of public reason. Instead, they must take sides in theoretical debates as they formulate a normative theory of CPR that is conducive to judging in hard constitutional cases within the limits of the American constitutional tradition. The kind of CPR that best serves this end could differ, perhaps 5 6

7

Rawls, Political Liberalism, p. 4. For Rawls’s view of public reason, see Rawls, Political Liberalism, pp. 212–254; John Rawls, “The Idea of Public Reason Revisited,” in The Law of Peoples (Cambridge: Harvard University Press, 1999); The concept of public reason first appears in John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971) under the name of “publicity.” Charles Larmore, “Public Reason,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (New York: Cambridge University Press, 2003), p. 368. Jonathan. Quong, “Public Reason,” in Edward N. Zalta (ed.), The Stanford Encyclopaedia of Philosophy (2013), available at https://plato.stanford.edu/entries/public-reason/.

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dramatically, from the kind of public reason that would be most appropriate for citizens or their elected representatives when they exercise political power. At most, Rawlsian public reason is a starting point for the formulation of a conception of CPR. Rawls’s conception of (inclusive) public reason, with the proviso permitting the introduction of nonpublic reasons under certain conditions, is but one possible version. Rawls anticipates the variance of public reason by stating that its content is not given by a single conception of political justice.8 The content of public reason will reflect the reasonable political conception of justice that it is predicated upon, and those conceptions are bound to differ from well-ordered society to well-ordered society.9 The inspiration for the public reason approach comes from the fundamental liberal idea that it is wrong for the state to wield its power without offering adequate justification. It follows that the elected representatives and other public officials must attempt to provide sufficiently public reasons for coercion, constitutional essentials and matters of basic justice, and according to some scholars all political decisions. When the state can publicly justify its laws and policies in this manner, then individual laws can be legitimate, despite intractable disagreement at a deeper level of comprehensive doctrines. As Samuel Freeman puts it, “Public reason is supposed to achieve a kind of impartiality among free and equal citizens in [their] political judgments of justice and in the reasons for laws.”10 On this view, justification must come in the form of public reasons, and justifications based on any reason that a reasonable person believes to be true, right, and relevant will not necessarily be sufficient. An ideal of public reason is thus in practice a “reasons-restricting device.”11 At the outset, some reasons for political acts – and for judicial decisions as well – are disqualified because they derive from a comprehensive doctrine. In the absence of the kind of actual unanimity that might exist in a small community of ideologically like-minded anarchists, the practice of abiding by an ideal of public reason prevents legislative majorities from simply imposing their will on legislative minorities or individuals without a rationale that those on the losing side could see as sufficient. 8 9

10 11

Rawls, “The Idea of Public Reason Revisited,” pp. 140–141. See also Martha C. Nussbaum, “Introduction,” in Thom Brooks and Martha C. Nussbaum (eds.), Rawls’s Political Liberalism (New York: Columbia University Press, 2015), p. 34. Samuel Freeman, Rawls (New York: Routledge, 2007), pp. 414–415. Wojciech Sadurski, “Legitimacy of Law in a Liberal State: The Contours of Public Reason,” Sydney Law School Research Paper, 14/08 (2014), 2.

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The idea of public reason may seem counterintuitive, particularly when it comes to political debate in a democracy. After all, why shouldn’t everyone be able to say whatever they want to say in their public deliberations and vote their preferences or deepest convictions? The answer is simple: Their doing so would not be so problematic if the political association of the state had been a voluntary association. But it is not and never will be. The state exercises its authority with a monopoly of force and coercion. The ambition of public reason is nothing less than to ensure that the use of political power is legitimate from all reasonable points of view. As Andrew Lister puts it, “The general idea of public reason . . . is that we should exercise political power only in ways that it is reasonable to expect everyone to accept, despite the fact that reasonable people will disagree about many important religious, philosophical, and ethical questions.”12 Each member of the political community is entitled to more than a mere explanation of why government did what it did or plans to do. A government that does not produce a satisfactory justification, which a reasonable person could accept, or at least not reasonably reject, has not treated those who are subject to its authority with the respect that they deserve. The failure to do so may imply that the law in question does not bind everyone who is supposed to comply with it. Above all, treating people as free and equal means offering them adequate justification for coercing them through public laws and acts.

2 Reasonableness as a Civic Duty All proponents of public reason, whatever their differences, believe that the restraints of public reason are necessary, because they offer a promising response to reasonable pluralism in modern democracies. Rawls claims that using public reason when exercising public power should be seen as part of what it means to be reasonable in a pluralistic democracy, and that such reasonableness is a crucial civic duty for public officials, citizens, and especially for judges who exercise the power of judicial review.13 As Ronald Dworkin writes, “Rawls’s doctrine of public reason is devoted exactly to defining the kinds of arguments that are permissible for officials in a politically liberal community.”14 As a kind of behavior, this reasonableness is not simply a matter of how one evaluates 12 13 14

Andrew Lister, Public Reason and Political Community (London: Bloomsbury, 2013), p. 8. Rawls, Political Liberalism, p. 216. Ronald Dworkin, “Rawls and the Law,” in Thom Brooks (ed.), Rawls and the Law (Burlington: Ashgate, 2012), p. 1397.

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evidence or makes inferences; it also captures how persons are supposed to think about and interact with the other members of their political community in the name of civic friendship. In Rawls’s view, an unreasonable person is “unwilling to honor, or even propose, except as a necessary public pretense, any general principles or standards for specifying fair terms of cooperation.”15 Fundamentally, being unreasonable is to refuse to engage in the self-restraint that public reason calls for in the political context, undermining the reciprocity that makes the practice of public reason possible in a community of free and equal persons. Being unreasonable is not just to refuse to offer fair terms of cooperation, but also to assume that everyone else really agrees with their specific basis for claiming what these fair terms of cooperation amount to (or that they would agree, had it not been for their ignorance, flawed reasoning, or poor judgment). For Rawls, citizens are under the same civic duty to use public reason as public officials when they deliberate and vote with respect to certain matters, namely constitutional essentials and matters of basic justice. When each of them only relies on their own nonpublic reasons, like religious reasons or secular ones rooted in comprehensive doctrines, they fail to be reasonable in the sense that they are unwilling to offer others, with whom they share the same political space, fair terms of social cooperation, or are unwilling to see that other reasonable persons also may have different but equally valid views. Those who are unreasonable are inappropriately relying on their own reasons in political life when they ought to be looking for reasons that other reasonable persons, who do not share their deeper convictions, might find more acceptable. According to Lister, “Those who reject public reason exclude everyone but themselves from the constituency of justification.”16 The recognition of the need to be reasonable and strive toward public reason and publicly justifiable laws and policies helps the community exercise political power in a way that can be seen as legitimate by all. On this view, a democratic majority cannot legitimately impose its laws and decisions on the minority, if there is no process of public reasoning ensuring that the law or act can be justified in a way that it also is reasonably acceptable to the minority. Because unreasonable persons do not count as part of the justificatory constituency, it is not illegitimate to impose political 15 16

Rawls, Political Liberalism, p. 50. Andrew Lister, “The Coherence of Public Reason,” Journal of Moral Philosophy, 15 1 (2017), 3.

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decisions on those who are seen as unreasonable.17 Their objections should not be seen as a reason to reject something as unacceptable to the political community. This raises the question of what makes a person unreasonable: For a person to affirm one unreasonable belief or even a bizarre comprehensive doctrine does not necessarily make a person fall outside the justificatory constituency. What matters is whether persons are politically reasonable, or willing to treat others as free and equal, and with reciprocity, in the sense of being willing to offer them reasons that they can see as reasonable even when not sharing the same deeper doctrine. While it may seem unfair to exclude the unreasonable from the constituency of justification, it is not evident what more is owed to them when they refuse to play by the rules that others are willing to follow, and collective decisions must be made. To demand that the state’s rationale for its actions be acceptable to the most ignorant or dogmatic individual is to ask far too much. Therefore, proponents of public reason qualify their respective conceptions by maintaining that only reasonable persons are entitled to such a justification without having to give up their reasonable comprehensive doctrine.18 So, what counts as public justification or public reasons? Personal justification based on private intuitions or revelations are neither accessible nor acceptable to all as a basis of collective decisions and are thus seen as nonpublic reasons in the context of politics. Reasons that come from, or rely on, specific comprehensive religious, moral, or philosophical doctrines that reasonable individuals do not have in common are similarly nonpublic. Importantly, reasons that conflict directly with the most basic ideas of a liberal democracy, such as the idea that all persons are free and equal, are also seen as nonpublic reasons. To be a reasonable person and respect the idea of public reason is to ensure that one only supports laws and decisions – especially those that touch on constitutional essentials and matters of basic justice – that one sincerely believes that others, who have different conceptions of the good or comprehensive doctrines but are equally reasonable, would find good enough. If she does not believe that adequately public reasons exist, or that the balance of public reasons19 count in favor of the law, then she must not impose that law on her fellow citizens. To do so would be unreasonable. In reflecting in this way, she 17 18

19

Lister, “The Coherence of Public Reason,” 19. On this point, see Steven Wall, Liberalism, Perfectionism and Restraint (Cambridge: Cambridge University Press, 1998), pp. 110–111. Rawls, Political Liberalism, p. 241.

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must try to imagine what it would be like to be a reasonable dissenter. Indeed, next time, she may be the reasonable dissenter. If the law in question is based on sufficiently public reasons, then an “ideal reasonable dissenter” would accept it. Such a person is willing to be persuaded by the better argument, assumes that reasonable disagreement characterizes difficult constitutional cases, and will conclude that the legislation in question is publicly justified only when the state has produced sufficiently public reasons on its behalf. A legitimate decision convinces the ideal reasonable dissenter that the reasons that support the law in question are sufficiently public, even though she has a sincere belief that her own personal reasons better support the opposite result. The idea of public reason can thus be formulated in the following way: Members of the political community should cast their political justifications in ways that target reasonable dissenters and only support laws and decisions that can be justified in this way (again, the laws and decisions we are talking about here are constitutional essentials and matters of basic justice). In order to be sufficiently public, justifications must therefore be designed to be neutral with respect to a wide range of existing reasonable conceptions of the good and normative political ideologies, increasing the odds that an ideal reasonable person could not reject them. Moreover, justifications cannot conflict with the basic ideas of a constitutional liberal democracy. Yet, even if a reasonable dissenter rejects the reasons as the best public reasons, legitimacy still may be possible in a minimal sense. As Wil Waluchow points out, legitimacy could come in the form of “a decision based on a good faith attempt to strike a reasonable balance of what are sincerely taken to be the relevant public reasons.”20 An ideal reasonable dissenter might not accept the public reasons her fellow reasonable citizens offer as being superior to hers, yet she might see them as at least reasonable when the attempt of those who are trying to publicly justify the law in question reflects a genuine effort on their part to respect them by avoiding patently nonpublic reasons. In such circumstances, a reasonable dissenter might give the benefit of the doubt to the reasons put forth in the name of public justification. The justificatory effort itself, or the process of public reasoning, may suffice for all reasonable persons to accept the decision as legitimate, even when some of them do not see it as the best argument of public reason, all things considered, and even when the reasons do not yield the result that they would prefer. 20

Waluchow, “On the Neutrality of Charter Reasoning,” p. 224.

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II Constitutional Public Reason 1 Overview In the United States, judicial review serves as a check on the other branches and the states, meaning that judges monitor lawmakers and other public officials to ensure that they adhere to constitutional limits. One may reject public reason as an appropriate ideal in the democratic domain of voters and their elected representatives, but it seems less plausible to reject public reason as an appropriate ideal in the context of judicial review, where American judges are not supposed to act on their own best reasons. Rather, they delineate the constitutional limits of the power of the state, defend individual rights, and protect vulnerable minorities from invidious discrimination by expounding the Constitution. A normative theory of constitutional interpretation must explain not only when lawmakers have gone too far, but also when judges themselves exercise their power inappropriately. In the language of public reason, one way that judges can do their jobs in constitutional cases is for them not to rely on the wrong kinds of reasons in their own majority, concurring, and dissenting opinions. Abiding by an ideal of public reason, I believe, also requires judges to strike down laws that are predicated upon the wrong sorts of reasons, that is, nonpublic ones. In the context of American constitutional theory and practice, public reason may make sense as a method of constitutional adjudication in hard constitutional cases, although there will be substantial disagreement among scholars about how the constitutional public reasoning should be done, who should be doing it, with respect to what matters, with what audience in mind, and so on. Indeed, there are similarities between public reasoning and constitutional reasoning from the outset. As a government of limited powers, the US government can only exercise its authority when the Constitution provides adequate reasons for such action. The reasons could be found in the constitutional text itself, in the case law glossing its meaning over time, or in other conventional sources of constitutional law. Either the Constitution gives lawmakers permission to do what they want to do, or it does not. If lawmakers do what they want without finding adequate basis for doing so in the Constitution, they are acting unconstitutionally. For instance, they may want to legislate morality in personal matters, treat gays, lesbians, and other sexual minorities unequally, or advance a specific religion at the expense of others. No doubt, they probably sincerely

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believe that their reasons are the best ones that anyone could come up with. But as far as the Constitution is concerned, what they happen to think about the quality of their own reasons is beside the point. After all, they have taken an oath to uphold the Constitution; they can only act on reasons that the Constitution makes admissible. In this way the requirement of constitutionality is itself a kind of requirement of public reason, and it rules out nonpublic reasons in both the legislative and judicial processes.21 Both forms of reasoning are designed to limit actors, who have political power, to only a certain class of reasons when it comes to justification of laws and political acts. Rawls too draws a connection between constitutional reasoning and public reasoning when he characterizes supreme courts with judicial review as the “exemplar[s] of public reason” in Political Liberalism.22 The most obvious interpretation of this famous statement is that he wants citizens and their elected representatives to behave more like judges – emulating their impartiality – with respect to constitutional essentials and matters of basic justice. The justices are exemplary by eschewing certain kinds of reasons when they reflect on political decisions, deliberate with others, and vote, but also in striving to give a coherent interpretation of the basic constitutional ideas across a range of issues.23 In Rawls’s scheme, judges are supposed to set an example for everyone. The nine US Supreme Court justices rarely agree on any issue of importance, but ideally the highest court could not only model proper judicial behavior, in restricting themselves to constitutionally permissible reasons, but also inspire citizens to do likewise. At a minimum, the justices exemplify such reason when they remain mindful of the fact that they are not free to do whatever they happen to want to do on the basis of whatever reasons they happen to have. The text of the Constitution contains many “majestic generalities” and is often indeterminate.24 This means that in almost any important constitutional case, the text does not provide sufficient guidance. A public reason approach could provide further guidance and determinacy by offering an extra check on the public justifiability of the reasons relied on, and on which reasons to reject because they are nonpublic. According 21 22

23 24

Sadurski, “Legitimacy of Law in a Liberal State,” 1. Rawls, Political Liberalism, p. 231. Rawls subsequently states that public reason applies more strictly to judges. John Rawls, “The Idea of Public Reason Revisited,” pp. 133–134. Rawls, Political Liberalism, p. 235. The term “majestic generalities” is found in West Virginia State Board of Education v. Barnette, 319 US. 624, 639 (1943).

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to the public reason approach, one should not see a law in a constitutional democracy as constitutional when it is predicated upon nonpublic reasons – even if these nonpublic reasons are compelling in other contexts – and a judicial decision should likewise ensure that it avoids relying on nonpublic reasons. An alternative approach, which enables judges or lawmakers to rely on nonpublic reasons, might produce more justice, or better consequences, yet such an approach does not generate legitimate decisions under conditions of reasonable pluralism, decisions that all reasonable citizens can see as at least acceptable, even if they prefer other outcomes. The advantage of putting public reason at the center of the American constitutional tradition is that each of the different constitutional traditions can inform the others, in a kind of dynamic reflective equilibrium, as scholars work out the details of how they can make their constitutional approach compatible with the public reason approach. In well-known constitutional decisions, the language of public reason can account for why the respective laws in question are (or are not) upheld, particularly in equal protection and fundamental rights cases. A viable conception of CPR cannot be too distant from how real judges decide constitutional cases. Nor can CPR be an esoteric idea that proponents of public reason try to impose on practitioners who never have, and never will, read any of Rawls’s work. Rather, constitutional scholars must adapt it so that it coheres with what judges and lawyers already more or less do in constitutional cases that involve freedom and equality. Fortunately, Americans are already in the habit of invoking such political values, even if they do so crudely and selectively. As Stephen Macedo puts it, “Even in the non-ideal conditions such as our own, ideas and norms of public reason are discernible in practice.”25 A further step in the direction of public reason would be to invoke such political values while trying to have a coherent conception of the relation between them, or while trying to formulate what one sees as the most reasonable and coherent political conception of justice for a constitutional democracy. This also means that one invokes these ideas as explicitly political ideas that belong to the constitutional tradition and the public political culture as well as eschews deeper religious and philosophical doctrinal foundations of these ideas as inappropriate for political justification vis-à-vis other members of the political community. 25

Stephen Macedo, “Why Public Reason? Citizens’ Reasons and the Constitution of the Public Sphere” (2010), 6, available at http://ssrn.com/abstract=1664085.

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In the United States, constitutional reasoning provides input to public reason, to what can be the shared, or publicly acceptable basis for political and legal decisions that affect everyone. It also provides a model for how one can reason in a way that is publicly justifiable to a broad set of persons with different views. A Rawlsian ideal of public reason also offers further guidance to constitutional reasoning itself. A society that does not constitutionalize so many issues of political morality, and that does not delegate so much power to judges to make such important decisions for them, would not need a judge-centered conception of CPR like the one that I have sketched here. Indeed, a society could opt for a more democratic and populist conception of CPR that would be suited for citizens and their elected representatives. That is yet another question that legal scholars need to address. One can imagine that in a different institutional division of labor scheme, different varieties of the ideal of public reason might be more appropriate for ordinary citizens, their elected representatives, and unelected federal judges, respectively. As noted, Rawls hopes that citizens can be more like judges when exercising their political powers.26 Yet, in reality, ordinary Americans and their elected representatives are not always up to this task, and the justices do have wide constitutional review powers. Unless one prefers to eliminate the justices’ review powers, it seems that almost any conception of CPR, as an ideal of judging, ought to have broad appeal. It is much more realistic to conceive of judges adhering to some kind of conception of CPR in deciding real cases than to conceive of most elected politicians and ordinary voters abiding by public reason.

2 An Alternative Nonpublic Reason Approach to Judging: Dworkinian Moral Reading It can be clarifying to contrast a generic public reason approach to constitutional adjudication with the approach of a well-known legal scholar, Ronald Dworkin, who famously calls for a moral reading of the US Constitution. In my view, a judge who subscribes to CPR would be committed to this principle in two senses: First, public reason would inform her reasoning in all hard cases, including how she writes her opinions. She would only use sufficiently public reasons as premises in her legal argument without a proviso that would enable her to offer her own nonpublic ones if she runs out of public reasons. In writing her 26

Rawls, “The Idea of Public Reason Revisited,” p. 168.

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opinion, she would address what I call an “ideal reasonable dissenter,” someone who does not share her deeper doctrinal beliefs but still is reasonable. Additionally, in the second sense, she would assess the justification of the law in question that has been offered by the lawmaker. The second sense is not necessarily what Rawls has in mind, but it makes sense to include this as part of CPR inasmuch as constitutionalism is about limits on the authority of the state, meaning that lawmakers may not act on the basis of some reasons, even if their constituents want them to do so. It would be odd for Rawls to embrace judicial review but let judges be indifferent to the kind of justifications and reasons offered by lawmakers. I shall not attempt to offer anything like a comprehensive overview of Dworkin’s theory of moral reading, which he formulated and tweaked over many years, but only attempt to give the reader a sense of why Dworkin believes judges should make constitutional choices without searching for public reasons or being concerned with how reasonable dissenters might react. As an interpretive strategy, Dworkin maintains that “constitutional integrity” constrains the moral reading of the ideal Dworkinian judge, Hercules, when he decides cases.27 This imaginary judge is not free to decide a case by drawing upon her deepest moral convictions, say, to mandate a more equitable distribution of wealth or to endow nonhuman animals with constitutional rights. Some principles are simply not a part of the constitutional morality, text, and tradition of the American people. Yet, within the limits of constitutional integrity, the judge must rely on her own best understanding of the moral principle(s) or conceptions that render the American constitutional tradition most coherent and morally attractive. For Dworkin, the most coherent and morally attractive overarching moral principle is a distinctly antiutilitarian, liberal egalitarianism that requires government to treat all persons with equal concern and respect.28 Dworkin thinks that two or more judges can have different understandings of this liberal moral conception or disagreements about what it implies in real cases.29 To assert that there is a right answer to a hard case is not to guarantee that everyone will recognize it as such. Within a range of plausible answers, judges must do their best to pick the conception of liberal equality that strikes them as being most compelling, and to act 27

28 29

Hercules first appears in Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 105–130. Dworkin, Taking Rights Seriously, pp. 272–273. Ronald Dworkin, Freedom’s Law (Cambridge: Harvard University Press, 1997), p. 11.

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accordingly. While the distinction between reliance on one’s own deepest moral convictions, and reliance on them within the bounds of constitutional integrity may be thin, he believes that judges who act in good faith are not free to do whatever they please. After all, new constitutional decisions must cohere with old ones. As Dworkin has written, the judge should think of herself as being a part of the collective enterprise of writing a chain novel, where in writing the next chapter, she is constrained by what happens in the preceding chapters.30 In his view, judges are both authors and critics of the American constitutional story.31 From a public reason perspective, the problem with Dworkin’s adjudicative ideal is not the problem that his conservative critics make so much of: that Hercules can make the Constitution mean whatever he wants it to mean in order to achieve whatever political outcome he desires, namely progressive ones. According to Lawrence Solum, the problem with Dworkin’s adjudicative ideal is rather that it sets no limit to conceptual descent when the judge tries to give a coherent interpretation of the moral idea of the Constitution.32 On Dworkin’s account, a judge can base his interpretation on a comprehensive liberal doctrine, and Dworkin himself favors a Kantian one. For Rawls, this is to go too deep; the judge’s interpretation would not be publicly justifiable and hence not permissible within in his ideal of public reason. The problem is that Dworkin thinks that the judge’s interpretation of the Constitution based on a liberal comprehensive doctrine yields public reasons when it does not. Put differently, Dworkin fails to recognize the implications of reasonable pluralism. Dworkin’s orientation is toward the full moral truth, and not toward what could persuade a reasonable dissenter of the legitimacy of the decision, and he therefore fails to restrict Hercules’ reasons to public reasons. This would be less problematic if Americans already subscribed to the same reasonable comprehensive religious, moral, or philosophical doctrine. But under conditions of reasonable pluralism, legal scholars should resist any move that would allow judges to introduce anyone’s nonpublic reasons into their opinions, including their own. If anyone at all ought to be under such a constraint, it should be constitutional judges. The judges are not supposed to be speaking for themselves. 30 31 32

Dworkin, Law’s Empire (London: Bloomsbury Publishing, 1998), pp. 229–238. Ibid., p. 229. Solum, “Public Legal Reason,” 1474–1475. I thank Silje A. Langvatn for bringing this citation to my attention.

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From a liberal egalitarian standpoint, just about anyone left of the center of the American political spectrum will find that Hercules’ approach to judging usually leads to a constitutional result that pleases them. As I see it, the trouble with Dworkin’s moral reading of the Constitution lies not with the adjudicative results but with the reasoning that supports them. The Dworkinian moral reading approach forces a judge to be most concerned with where the best argument of morality leads, instead of with the kinds of reasons that would be most appropriate as justification in a pluralistic society. In searching for the right answer, Hercules minimizes the breadth and depth of moral disagreement that characterize America and misses an opportunity to find a rationale for his decision that all reasonable persons can live with. In his pursuit of moral truth, Hercules mistakenly proceeds without worrying about what others can reasonably accept. Ultimately, Dworkin fails to recognize the importance of the fact that the right answer could be rejected by reasonable people if the opinion itself does not incorporate adequately public reasons. There is world of constitutional difference between Hercules’ being right, say, with respect to the moral permissibility of abortion, and not reversing Roe v. Wade or Planned Parenthood v. Casey, and a judge who reaches the same result but provides reasons – or makes a good faith effort to do so – that would persuade an ideal reasonable dissenter.33

3 A Conception of CPR Specific conceptions of CPR will have different practical implications. As legal scholars develop conceptions of CPR, they will probably disagree about something as fundamental as its structure. Taking a (strong or weak) consensus approach to CPR, for instance, would produce different constitutional arguments and results than, say, the convergence approach, which defines public reasons quite differently.34 An important part of the research agenda, for those who are interested in the implications of public reason for constitutional theory and practice, must involve figuring out which conception of public reason is most appropriate for American constitutional adjudication. Initially, my own preference was for a more exclusionary conception of CPR.35 The rationale was that lawmakers and judges must rule out 33 34

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Roe v. Wade, 410 US 113 (1973); Planned Parenthood v. Casey, 505 US 833 (1992). For the convergence approach, see Gerald Gaus, The Order of Public Reason (New York: Cambridge University Press, 2012). Den Otter, Judicial Review in an Age of Moral Pluralism, pp. 109–138.

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nonpublic reasons that are not found in the Constitution, regardless of their place in a traditional theory of right action like deontology, consequentialism, or virtue ethics. I saw the whole point as trying to stay away from this danger zone of nonpublic reasons. A strong consensus conception of public reason entails that all reasonable persons must accept the same public reasons or the same constitutional argument in support of the conclusion in order for it to be truly publicly justifiable. By contrast, a weak consensus conception makes room for the possibility that reasonable persons can accept a different constitutional argument, like a concurring opinion, as long as it is infused with sufficiently public reasons.36 Usually, judges have a wide range of options when it comes to formulating a constitutional argument in a hard case. One judge could favor a substantive due process approach for recognizing a constitutional right for a man to marry another man and a woman to marry another woman. Another judge could write a concurrence that leads to the same conclusion, but on equal protection grounds (and there is more than one way of making such an equal protection argument). Under a weak consensus approach to CPR, reasonable persons could accept one or the other constitutional argument as generating adequate public justification. They could form something like an overlapping consensus on the ultimate answer even when they do not see the same public reasons as the most important. As Macedo points out, one advantage of the consensus approach, as opposed to a convergence approach to public reason, is that it is suited to reassure everyone about each other’s reasonableness and willingness to rely on reciprocally acceptable reasons.37 In making transparent the reciprocity inherent in public reason, reasonable persons will not be as tempted to be insincere by disguising nonpublic reasons as public ones. At least on its face, a convergence view would be less appropriate for a judge who is tasked with deciding a constitutional case because such an approach does not require shared reasons. Instead, it requires that all affected have some sufficient reason (public or nonpublic) to accept the law or act in question. As I see it, such a view threatens to open constitutional reasoning to the charge that it is politics or personal morality by other means. Such a view, where what is public is relative to the person, may be fine when citizens engage in politics. Yet a judicial 36

37

Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011), pp. 261–273. Macedo, “Why Public Reason?,” 32–37.

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opinion does not have this luxury. It must articulate, as candidly as possible, what the public justification is for deciding an important constitutional case one way rather than the other, so that everyone knows why the judges did what they did. Recall that reasonable persons do not have to agree with the outcome of a case in order for the decision to be legitimate. They can conditionally accept it as legitimate when the reasoning that appears in the majority opinion is good enough, even if they would have preferred a different outcome. When the public reasons in the majority opinion cross the threshold of plausibility, the judge has achieved her objective: to make a good faith attempt to ensure that dissenters have been given more than nonpublic reasons. This way, constitutional reasoning can be made more accessible and acceptable, and those who follow the practice of constitutional law would know what the rationale is for, say, a constitutional right to same-sex marriage.

III The Indeterminacy Objection In philosophical terminology, the application of public reason on the part of judges to real fact patterns may be either inconclusive (uncertainty due to not knowing where the balance of public reasons lies) or indeterminate (a tie or very close, where there are no more reasons that speak to the issue).38 Ultimately, CPR cannot settle certain constitutional controversies, if “settle” means answering hard constitutional questions to the satisfaction of everyone in the legal community. Public reason is not designed to identify a unique public reason or a unique balance of public reasons in such situations, much less an uncontroversial answer.39 Rather, the objective is to establish a discursive framework for judges when they deliberate in hard constitutional cases and where the only admissible reasons are those that are sufficiently public. Within this framework, judges have the responsibility of making multiple choices as they try to bridge the gap between their conception of CPR and the facts of the case that they must decide. The issue of how and when judges are supposed to use such reason needs more scholarly attention. For some scholars, “Public reason is exercised in those spaces, which are left underdetermined by the argument from text, precedent, etc.”40 In such circumstances, what 38 39 40

Quong, “Public Reason,” section 7.4 “Incompleteness.” Sadurski, “Legitimacy of Law in a Liberal State,” 10. Sadurski, “Legitimacy of Law in a Liberal State,” 18.

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H. L. A. Hart calls the “penumbra of uncertainty,” judges could use CPR to legislate from the bench if they decide not to exercise judicial restraint.41 When the law is underdetermined, because the rules have run out, a judge would be making law, but not in exactly the same way that a legislator does. That is not to say that any conception of CPR or how a judge applies it in a given case would be beyond controversy. A reasonable person does not always know a public reason when she sees it. Nor will she necessarily know when one public reason should trump another public reason in cases of conflict. Public reasons may run out. Thus, competent judges, even those acting in good faith and utilizing the same conception of CPR, may not single out the same reasons as being sufficiently public or give them the same weight. Those who agree about which reasons are sufficiently public still may rank them differently, producing different outcomes, each of which appears to be publicly justified.42 The same conception of CPR, then, may produce equally strong public reasons that support different conclusions. This situation poses a problem only for those who have unrealistic expectations about what a normative theory of constitutional adjudication can do. As Micah Schwartzman writes, “We demand too much of public reason if we expect it to have answers waiting in the wings.”43 Despite the appeal of formalist approaches that promise more certainty, legal reasoning never has been, and never will be, strictly deductive. The harder the constitutional case, the more discretion judges must exercise. Constitutional principles – like the free speech, equal protection, and due process clauses – are abstract and, therefore, either indeterminate or underdetermined in hard cases. Because even more determinate constitutional rules still can be “open textured,” reasonable people can be expected to dispute their precise meaning and application from time to time. Fortunately, many cases are easy in the sense that the conventional sources of constitutional law yield a determinate answer.44 But the kinds of cases that the US Supreme Court puts on its docket tend to be hard enough that reasonable 41 42

43

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H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 125–127. Gerald F. Gaus, Contemporary Theories of Liberalism: Public Reason as a PostEnlightenment Project (Thousand Oaks, CA: Sage Publications Inc., 2003), p. 12. Micah Schwartzman, “The Completeness of Public Reason,” Politics, Philosophy, and Economics, 3 (2004), 207. In my view, same-sex marriage is an easy case, whereas abortion and race-conscious affirmative action cases are much harder. See Den Otter, Judicial Review in an Age of Moral Pluralism, pp. 231–290.

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disagreement about not only the outcome but also about the rationale will be the norm. In such situations, by looking for reasons that all reasonable persons can accept, or at least not reject, judges fill gaps in constitutional law with reasons that reasonable persons can accept, notwithstanding their disagreement with the result. There could be something for everyone in a judicial decision that is written with this end in mind. Another related concern is that public reason, on its own, is too shallow to settle the most important constitutional controversies. According to David Reidy, public reason will not be able “to resolve all or nearly all fundamental political questions” without recourse to nonpublic reasons.45 It may seem that a proponent of public reason must widen her principle of public reason to include some nonpublic reasons to improve the probability of resolving the most difficult issues. Reidy worries that when citizens, their elected representatives, and judges are limited to a principle of public reason that is too exclusive, they will not have the resources to publicly justify the most important laws. If the proponent of CPR widens her principle of public reason any further, however, she may have to concede that public reason is of little help when it is needed the most, namely when it comes to the most vexed constitutional questions.46 According to this view, allowing citizens, lawmakers, or judges to introduce supplementary nonpublic reasons – keep in mind that Rawls was not unsympathetic to this possibility – the stalemate could end. At worst, the deliberators would be no worse off than before they expanded the pool of reasons to include nonpublic ones like religious or philosophical ones. Indeed, people can be convinced by various arguments, including those that have nonpublic reasons as premises. When certain kinds of arguments, such as those limited to premises based on public reasons have failed, it stands to reason that another route toward public justification may provide adequate support for the outcome, whatever it turns out to be. When judges have fewer reasons to draw upon, they have less ammunition, in a manner of speaking. The decision to restrict the kinds of reasons that can break the tie only increases the likelihood of having no reasons at all, leaving the final decision to an arbitrary judgment by the judge. 45

46

David A. Reidy, “Rawls’s Wide View of Public Reason: Not Wide Enough,” Res Publica, 6 (2000), 52, 64. Ibid., 72.

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IV Response to the Indeterminacy Objection Rawls was aware of the possibility of a stand-off in public reason.47 In the context of constitutional adjudication among judges, even the same version of CPR could produce a plurality of different answers that would seem to be equally warranted. As Waluchow puts it, “The fear is that there are far too many plausibly good reasons . . . and no means of adjudicating among them in a way that appears neutral.”48 Yet, most proponents of public reason see its shallowness as a distinct advantage. It is not evident why deeper reasons stand a better chance of breaking the deadlock. In other words, there is little reward and too much risk. To introduce nonpublic reasons is to invite trouble under conditions of reasonable pluralism when judges are supposed to convince those who are reasonable yet disagree with the outcome. The very idea of public reason was developed by Rawls as a response to the intractable reasonable pluralism that characterizes contemporary liberal democracies. To appeal to deeper religious, moral, and philosophical reasons, or intuitions and revelations, is to draw upon reasons derived from comprehensive doctrines that are a main source of disagreement, conflict, and mistrust in the first place. Anyone who is convinced that nonpublic reasons might be admissible is basically arguing that judges may look deeper every now and then with the hope that a nonpublic reason will be able to save the day. But those are exactly the kinds of reasons that reasonable persons can reasonably reject. At the very least, there ought to be a very strong presumption against resorting to nonpublic reasons, even when they have some probative value. It would be hard to conceive of a situation where a judge’s doing so would be called for, with perhaps the exception of trying to save the country from an imminent constitutional crisis. After all, human psychology is what it is. Even the most reasonable people tend to find their own deepest reasons to be more compelling than they would be in the eyes of others who are equally reasonable yet do not have the same worldview or comprehensive religious, moral, or philosophical doctrine. From any public reason perspective, nonpublic reasons should never be doing any heavy lifting in a constitutional argument that attempts to publicly justify a constitutional conclusion. If we accept 47

48

Rawls, Political Liberalism, p. liv; Rawls, “The Idea of Public Reason Revisited,” p. 168 (emphasis in original). Waluchow, “On the Neutrality of Charter Reasoning,” p. 213.

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Rawls’s assumption of reasonable pluralism, then we accept that the authority of nonpublic reasons comes from sources that people may reasonably reject. Rawls deliberately does not fix the content of the conception of public reason once and for all, but he does leave some of that determination to be developed in an actual process of trial and error between citizens and officials. Under the best of circumstances, sincere, reasonable, and perhaps intractable disagreement about whether the reasons advanced by the state count as public reasons may remain. In the end, restricting the reasons of all reasonable persons does not obviously increase the odds of indeterminacy. They still would face the same or even greater indeterminacy when the relevant nonpublic reasons are tied. Indeed, the imposition of a constraint like CPR may generate greater determinacy, insofar as the disagreement among reasonable judges concerns the nature of a much smaller subset of reasons, making the discourse under time constraints more manageable. In the case of an apparent stand-off, in Andrew Williams’ words, deliberators can try “to identify the most [his emphasis] reasonable political conception [of justice].”49 In the United States, the most reasonable conception would involve what one thinks the Constitution ought to mean, normatively. In fleshing out its meaning in real cases, judges could offer what they take to be the most compelling account of a conception of CPR without invoking their or anyone’s comprehensive doctrines. Although the most appropriate balance of public reasons may be nearly impossible to ascertain in hard cases, it does not follow that judges must revert to nonpublic reasons to break ties. It most likely would be a mistake to panic and resort to deeper metaphysical or moral reasoning in the face of a stalemate. A particular conception of CPR may be able to get the job done well enough, particularly in light of the difficulty of predicting how large the pool of potentially public reasons will be in a given case.50 The pool may turn out to be much larger than judges and lawyers anticipate when they know that they may not cross the border into the forbidden territory of nonpublic reasons and for that reason know that they must work within the limits of CPR alone. 49

50

Andrew Williams, “The Alleged Incompleteness of Public Reason,” Res Publica, 6 (2000), 203. On this point, see Jonathan Quong, “The Scope of Public Reason,” Political Studies, 52 (2004), 244.

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Some hard constitutional cases may be more amenable to CPR than others. For the most part, I suspect that defending a constitutional position with nonpublic reasons would be counterproductive (and needlessly divisive) when the overarching aim is to find common ground among those who are reasonable. Like other theories of constitutional adjudication, CPR does not provide anything like a decision procedure. After judges have done their best to separate (inadmissible) nonpublic reasons and (admissible) public ones and weighed the public ones to try to ascertain where the balance lies, they still might reasonably disagree about how the case ought to come out.51 In such situations, as they do now, they will vote, and a simple majority will determine the outcome.52 Oddly enough, this sort of indeterminacy is not necessarily the worst of all bad situations because it can make it easier for an ideal dissenter to accept the court’s decision. Even though she would have decided the case differently, she can focus on whether the reasons offered by the state, and then vetted by the judges, are satisfactory in the sense of being good enough under conditions of reasonable pluralism. The outcome is not true or correct, as Rawls puts it, but is for the moment reasonable.53 This is where legitimacy can be found despite continued disagreement over outcomes and deeper doctrines. A genuine commitment to CPR on the part of judges could reinforce the notion that Americans share the same constitutional morality, despite their deeper differences, and that constitutional adjudication is not simply politics by other means. The kinds of reasons that a judicial opinion incorporates will determine whether that opinion is legitimate. True, at its best, CPR can be underdetermined in its application, meaning that such reason may not provide a balance of reasons that unambiguously supports the outcome. In their opinions, judges will exclude nonpublic reasons, weigh the remaining public ones, and defend their view that the balance of public reasons supports one constitutional outcome instead of the other. No conception of CPR could do that for them. When legal scholars focus too much on the outcome, which in a hard case could go either way, they miss the chance to find legitimacy elsewhere. The only indeterminacy objection that could be devastating would be if all conceptions of CPR were comparatively worse than their nonpublic reason rivals. And at least for now, there is no reason to think that is the case. 51 52 53

Rawls, Political Liberalism, p. lv. Cf. Rawls, Political Liberalism, pp. lv–lvi. Rawls, Political Liberalism, p. lvi.

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V Conclusion There is a growing pluralism of conceptions of public reason, and thus less and less agreement among political philosophers and theorists about how best to understand and conceptualize the idea of public reason. This pluralism is a problem, or at least a challenge, for American legal scholars who would like to adopt the idea in the context of constitutional adjudication. They need to formulate a conception of CPR that comports with American-style judicial review. Different conceptions of CPR will have different practical legal consequences. At the most abstract level of theories of constitutional interpretation, constitutional theorists who try to adopt the idea of public reason would reasonably disagree about certain aspects of CPR. Yet, over time an overlapping consensus of different conceptions of CPR could develop, to the point where most judges would endorse something like the same conception. If that were to take place, judges from different constitutional traditions would not be at cross-purposes before encountering the fact patterns of constitutional cases. Alternatively, the attempt to adopt the idea of public reason in constitutional reasoning could result in an extremely wide range of conceptions, where advocates of CPR have little in common but a frustratingly vague name. Or the result could be a family of related conceptions, where proponents of CPR are close enough to how they understand such reason that judges and other practitioners can apply it consistently. Ultimately, CPR may be able to do what rival theories cannot do nearly as well, namely provide adequate support for controversial judicial decisions in the absence of a shared conception of the good or comprehensive doctrine. When it comes to theories of constitutional adjudication and hard constitutional cases, sincere and reasonable disagreement about the outcome and its rationale is inevitable, making the process of judging much more controversial than it otherwise would be. No plausible theory of constitutional adjudication can avoid such disagreement; the only issue is how to deal with it. A CPR approach is predicated on the very existence of deep and enduring disagreement, and this gives it distinct advantages over its competitors, at least to the extent that these other approaches do not even try to take into account reasonable dissenters’ views. Disagreement, including reasonable disagreement, about matters of constitutional morality is not a feature of American political life that will disappear. In this context, a widely shared conception of CPR could reduce the bitter partisanship that undermines public confidence in the

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integrity of the judiciary. Adherence to CPR might not produce the most just results, or the best consequences as seen from a particular person’s point of view, yet it might maintain the rule of law, clarify the limits of the authority of the state, and perhaps most importantly make the legitimacy of controversial judicial decisions possible.54 54

What this view – where judges use public reason to fill gaps – may understate is how constitutional fundamentals like due process and equal protection already provide public reasons, like political values of personal freedom and equality, whose meaning may be more or less obvious in easy constitutional cases.

4 The Question of Constitutional Fidelity: Rawls on the Reason of Constitutional Courts f r a n k i . mi c h e l m a n

I Introduction and Overview* In a democracy, let us broadly say (not haggling over details) that powers of state rule – laying down laws and seeing to their enforcement – originate with the people and remain always under their more or less proximate command.1 In a constitutional democracy, whoever takes a share in the day-to-day exercise of such powers does so under constraint of fidelity to a set of prior-established, publicly recognized terms for their direction and control. That simply is a part of what it means to call the democracy constitutional, as all perforce must agree. Where we nevertheless divide is over how stringent that constraint of constitutional fidelity is or ideally ought to be.2 Here, I look into the possible bearing on our debates of the political-philosophical work of John Rawls. I take a special interest in a proposition from Rawls that a stricter constraint of constitutional fidelity *

1

2

I am indebted to Richard Fallon, Silje A. Langvatn, and Mark Tushnet for extremely helpful comments on prior drafts of this chapter. “Political power,” writes John Rawls, “is always coercive power applied by the state and its apparatus of enforcement,” and in a democracy such power “is regarded as the power of free and equal citizens as a collective body.” J. Rawls, Justice as Fairness: A Restatement, Erin Kelly (ed.), (Cambridge: Harvard University Press, 2001), p. 40. See, e.g., “Fidelity in Constitutional Theory: Editors’ Foreword,” Fordham Law Review, 65 (1997), 1247–1248; M. Klarman, “Antifidelity,” Southern California Law Review, 70 (1997), 381–415 (questioning the value of constitutional fidelity); S. Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988), pp. 666–667 (equating constitutional fidelity in the United States with a commitment to the conduct of politics through “conversation” for which the Constitution provides a starting point or “common language”); M. Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999), pp. 11–14 (distinguishing a “thin” constitution of abstract “fundamental guarantees [respecting] equality, freedom of expression, and liberty” from the thick constitution of “specific provisions,” and treating the former as the proper object of fidelity).

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applies to judges in a constitutional democracy than to citizens at large engaged in political action. I raise and then try to answer a question about this proposition’s fit with others of Rawls’s political ideas.

1 Constitutional Fidelity under Public Reason In the view of Rawls, constitutional fidelity falls under a larger ideal of public reason for the conduct of politics in a modern, democratic society.3 It is thus with that larger ideal that our exposition begins. Rawls locates his philosophical inquiry within a certain “public political culture” – that of “a democratic society, and . . . the traditions of interpretation of its constitution and basic laws.”4 He reads this culture and that tradition through a moral-contractual lens, as a quest for fair basic terms of cooperation among populations of citizens conceived as individually free and equal.5 “Reasonable persons,” Rawls posits, living within the political tradition of constitutional democracy, “desire a social world in which they, as free and equal, can cooperate with others on terms all can accept.”6 Yet a democratic society, Rawls further posits, inevitably is a home to persons and groups holding to a clashing plurality of moral, philosophical, and religious orientations.7 There arises, in the argument of Rawls, a resulting political-moral constraint on the reasoning of democratic citizens engaged in the exercise of coercive political power over one another “in enacting laws and amending their constitution.”8 At least, Rawls maintains, when actions in those modes affect “fundamental” values and questions, an ideal of public reason says they are to be settled 3 4

5

6 7

8

See Section II in this chapter. Rawls, Justice as Fairness, p. 5; See J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 13–14, 223. See ibid., pp. 299–304; Rawls, Justice as Fairness, pp. 18–19 (connecting a “fundamental” political idea of separate persons each endowed with “moral powers” to “have, to revise, and rationally to pursue a conception of the good” and to “understand and . . . act from . . . principles of justice” to a fundamental political idea of society as a scheme of cooperation). Rawls, Political Liberalism, p. 50. See Rawls, Political Liberalism, pp. 36–37 (positing a “fact of reasonable pluralism”); ibid., p. xviii (taking as a premise that “a plurality of reasonable yet incompatible doctrines is the normal result of the exercise of human reason within [a] framework of . . . free institutions”). Ibid., p. 214. In a democracy, writes Rawls, “political power” – the coercive power applied by the state though its regime of laws – is “citizens’ power, which they impose on one another as free and equal.” Rawls, Justice as Fairness, pp. 40–41.

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by “political” or “public” values only – meaning values that are familiar from the public political culture and that any reasonable and rational citizen can accept as potentially decisive for the matter at hand.9 At least in those cases, lawmakers and citizens should ideally exercise their shares of political power in accord with what they sincerely find to be the right balances of applicable public values, and not on the basis of their selfinterests or on the basis of their comprehensive religious, moral, or philosophical doctrines.10 The public reason ideal applies to judges, officials, and citizens at various stages of what we can call constitutional time. At the stages when democratic citizens notionally assemble to choose the contents going forward for their country’s body of basic or constitutional laws – those contents as they are to stand from now until the next event of constitutional revision – the public reason ideal requires of each participating citizen a choice in line with what he or she can sincerely find to be a reasonable weighing and ordering of public values (and only such values).11 At the times when citizens and officials have in view political actions less foundational (say, day-to-day enactments of ordinary legislation) but still affecting fundamental concerns, the public reason ideal demands from them (inter alia) a due regard for the country’s constitution as it currently stands. At the times when judges or other legal authorities address doubts and disputes over correct constitutional applications, the ideal requires those authorities to decide by search for the most reasonable balances of the applicable public values for which they read the constitution-in-force to speak.12

2 “Stricter” for Judges than for Citizens The public reason ideal thus applies widely not only to judges and other officials but also to citizens acting in the public political forum. Rawls says, though, that the ideal applies “in a special way” to “judges in their decisions” and especially to the supreme court in a constitutional 9

10

11 12

Rawls, Political Liberalism, p. 214. See ibid., p. 218 (“As reasonable and rational, and knowing that they affirm a diversity of reasonable religious and philosophical doctrines, [citizens] should be ready to explain the basis of their actions to one another in terms each could reasonably expect the others to endorse as consistent with their freedom and equality.”). See J. Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review, 64 (1997), 773–774, 797. See Section IV in this chapter. See Rawls, “Public Reason Revisited.”

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democracy. The ideal applies “more strictly,” Rawls writes, to the supreme court judges in their adjudicative capacities than to democratic citizens engaged in political action.13 It is, of course, a commonplace of constitutional-democratic thought that we grant to citizen bodies an exclusive moral title to bring about changes to their country’s body of basic or constitutional laws. That is a title in which judges, as such, have no part; rather, judges acting in their judicial capacities are expected to apply in good faith the constitution as it currently stands. No doubt Rawls shares this view. But I detect also in his thought an endorsement of a further, less obvious sort of difference in the constitutional fidelities respectively owed by citizens and by judges – a difference, I mean, in the strictness of fidelities owed to the constitution as it stands during the periods between legally cognizable events of constitutional alteration by citizen action. Rawls envisages, for those periods, a fidelity constraint that is stricter for judges deciding disputes at law than for citizens acting as litigants, voters, political organizers, and otherwise as agitators for political causes. The difference takes hold when applications of the undoubted scriptural terms of the constitution-in-force come under dispute. It will help to have before us an illustrative case. Say, the state has recently extended its antidiscrimination statutes to make it a punishable offense for commercial purveyors of goods and services to vary their terms of dealing according to the buyer’s sexual orientation. Say further that the country’s constitution, written well in the past, contains guarantees respecting liberties of “conscience,” “association,” “expression,” and “religion” as well as for “the equal protection of the laws.” Does the combination of those guarantees prohibit application of the new law to purveyors of wedding-related goods and services engaged in faith-based refusals to serve or supply same-sex lawful weddings? Democratic citizens in our times, all adhering conscientiously to the listed set of constitutional guarantees, are fated to disagree about the true or best answer to that question. The same holds for judges likewise all conscientiously adhering. In the view of Rawls, anyone’s properly considered answer will have to ground itself in some broader conception of political right ordering that the answerer finds the constitution’s 13

Rawls, Political Liberalism, p. 216; Rawls, “Public Reason Revisited,” 767–768. A country’s supreme court, Rawls also writes, serves as its “exemplar” of public reason. Rawls, “Public Reason Revisited,” 231.

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guarantees in combination to express or represent.14 It is in their constructions of proposals for that wider organizing conception that Rawls (as I here will be reading him) allows citizens more leeway than judges. Such constructions will hardly ever arise on a blank slate. Readers of the country’s legal history to date will usually find therein a prior establishment of certain constructions bearing on the case under dispute, which have held the upper hand in constitutional-legal argument over a stretch of time leading up to now. While Rawls’s judges do, of course, retain some license to revisit those prior prevailing constructions, I read him also to say that citizens are freer in that regard than judges are. A citizen is to guide her actions affecting matters of constitutional import by reference to her country’s extant constitution, yes, but construed so far as possible to instantiate whatever broader justice conception, within a fairly spacious family of conceptions that can reasonably claim a place in the constitutional-democratic tradition, would bring the constitution closest to the one that she finds the country, in its conditions, most reasonably ought to have.15 A judge does not have that same latitude for selection among guiding larger conceptions of justice. For a judge, the guiding conception is to be one she honestly reads out of – not into – the constitution now in place in the country. It is to be the most reasonable rendition of the conception that the judge, upon inspection of that constitution’s text, its prior history of applications, and so on, can find it to instantiate.16 In the terms introduced by Ronald Dworkin, we might say that Rawls’s judges are more tightly bound than are his citizens to the dimension of “fit” (to concrete past constitutional practice) in constitutional interpretation.17 Such, at any rate, will be the reading I here advance as the one that works best – or, we might aptly say, most reasonably – after pulling together all of 14

15 16

17

See Section IV in this chapter. This is a view that, interestingly, Rawls believes himself to share with Ronald Dworkin; see ibid., 236–237, n. 23. F. I. Michelman, “Israel’s ‘Constitutional Revolution’: A Thought from Political Liberalism,” Theoretical Inquiries in Law, 19 (2018). See Section IV in this chapter. See Rawls, Political Liberalism, pp. 236–237 (remarking that judges are to give the constitution “the best interpretation . . . they can, using their knowledge of what the constitution and precedents require”). Rawls here is evidently favoring an approach to constitutional adjudication most typical of common law systems, in which prior judicial applications of the constitutional text acquire a presumptive binding effect on future applications. See R. Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), pp. 230–231.

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Rawls’s writings, earlier and later, that touch upon the topic. “Earlier and later” is the key. In Political Liberalism, first published in 1993, Rawls proposed his “liberal principle of legitimacy,” according to which a country’s constitution figures as a public procedural pact by appeal to which citizens justify to each other their exertions of the coercive political powers that they hold as citizens in a democracy. In Section II and Section III of this chapter, my aim will be to show how such a conception of the constitution’s place and function in a country’s politics seems not to allow for any gap at all between the constitutional fidelities respectively required of judges and citizens. It is only in Section IV, with a later set of Rawlsian writings also before us, that my eventual reading comes finally into focus.

3 The Constitutional Pact as Fixture and as Project Here, in briefest summary, is how the full reflection will run. First, Rawls holds that democratic citizens, acting in support of a coercive law with which others disagree, incur an obligation of civility to justify their actions to those others on terms those others as co-citizens can accept. In Rawls’s constitutional conception of 1993, supporters fulfill that obligation by showing that the contested law after all does comply with the country’s constitution-in-force. The constitution is ideally supposed to be such as citizens reasonably can call upon each other to accept as setting the basic terms for their political order, even as all understand that some resulting coercive laws will be ones that they or others will find deeply repugnant. As shown by Section III, however, not even that ideal supposition can fully suffice to settle the matter. Inevitably, there will be disagreements about the very question of the constitutional compatibility of the contested laws. In order that every such occasion will not signify to the political losers a rupture of the constitutional pact, the pact must itself be understood by citizens to allow for a range of conflicting views over correct applications of its terms. Yet, in order to serve at all as a public pact on political justification, the constitution’s prescriptions must be seen by all as settled in advance of their applications. Section III develops the resulting dilemma and Rawls’s response, and it concludes by suggesting how that response appears closed against any difference in the strictness of constitutional fidelities required of judges and of citizens. Section IV then takes up a related but further dilemma. In order to serve as a public pact on political justification, the constitution, as we have said, must figure in the minds of citizens as settled in advance of its

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applications. Yet it must also figure for citizens as fit to the country’s current historical situation. That situation includes a distribution within society of political opinions that will count as reasonable in the here and now of our country, and that distribution will change from period to period over the country’s history. The constitution thus, as I shall say, must figure for citizens both as “fixture” and as “project.” These two aspects, of fixture and project, both essential to the constitution’s service as a pact of mutual justification, may nevertheless at any moment be working as dialectical opposites. A stable political practice must have some way or ways of holding them in equipoise over the longer term. The difference I see in the strictness of the constitutional fidelities respectively imposed by Rawls on judges and citizens is conceived by him – such will be my suggestion in this chapter – as one of those ways. To the judges (as I shall conclude) Rawls mainly assigns the responsibility to maintain the constitution’s image as a fixture, while to citizens he gives the lead in keeping it up as a project. Recapitulating, then, the program: In Section II to follow, I recount Rawls’s extension of the public reason idea to his proposition for a justification-bearing constitutional pact, in what he calls “the liberal principle of legitimacy.” My focal text there will be the first (1993) edition of Political Liberalism. Section III then develops the resulting necessary element of fixture in constitutional law. It explains how Rawls would use economy and abstraction in the casting of constitutional guarantees to bridge between this need and the need to accommodate ongoing, everemergent moral disagreement among citizens. Section III further shows how the resulting scheme apparently must argue against allowance of a difference in the strictness of demands for constitutional fidelity imposed on judges and on citizens. Section IV then suggests how further reflection by Rawls on the permanent condition of democratic disagreement, and hence on the “project” aspect of the constitution’s justificatory function, may have led him, in writings subsequent to the first edition of Political Liberalism, to differentiate between the constitutional fidelities owed by judges and by citizens.

II From Democracy to Constitution via Public Reason: The Liberal Principle of Legitimacy (LPL) In a democratic regime, Rawls writes, political power “is regarded as the power of free and equal citizens [acting] as a collective body,” which they

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“impose on themselves and another as free and equal.”18 But then how (Rawls poses the question) could democratic citizens possibly hope to justify to each other as free and equal their coercive impositions – political majorities over dissenters – by votes touching fundamental matters over which the citizens are morally, philosophically, and religiously divided?19 As of 1993, in Political Liberalism, Rawls answered as follows (subject to variations of wording that do not reach to our concerns in this chapter): Our exercise of political power is proper and hence justifiable [to others as free and equal] only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational. This is the liberal principle of legitimacy.20

This “liberal principle of legitimacy” (or LPL as we will call it for short) presents us with an institutional object-class “constitution,” of which some members do and some do not, in certain essential respects, meet a test of hypothetical reasonable acceptability spelled out (more or less) by the LPL. The LPL then lets justification ride on the back of an actual constitution that meets the test. By hypothesis, in a well-ordered society, the constitution actually now in force in the country does meet the test. Majorities thus justify to protesting dissenters their exertions of political power by pointing to that constitution, with which those exertions can be seen to comply. Citizens severally engaged with their shares in this power – through, say, their votes on ballot questions and in elections of officials – thus claim to be acting with that constitution in view. The supreme court acts as institutional protector of that extant constitutional pact, to which citizens thus point by way of justification for their votes (and so on).21 The court thus obviously must, by force of its protective role, act under strict obligation to apply the prescriptive content of that particular, extant pact. The judges “must be, and appear to be, interpreting the same constitution.”22 But then must not the same hold equally for the citizens who point to that same extant pact by way of justification for 18 19

20 21 22

Rawls, Justice as Fairness, p. 41. See Rawls, Political Liberalism, pp. 136–137, 216–217; Rawls, Justice as Fairness, pp. 40–41 (all posing the same question in essentially identical terms). Rawls, Political Liberalism, p. 217. See ibid., p. 237; Rawls, Justice as Fairness, p. 41. See Rawls, Political Liberalism, p. 233. Ibid., p. 237.

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their own political acts? In order for this scheme for justification to hold together, must not the citizens be pointing at the exact same constitutional pact as the one the judges protect? And how, then, could citizens enjoy a wider license than the judges have to construe that pact as what they variously hold it best might be, as opposed to what they all commonly see that it historically is? Must not the “constitution” of the LPL, in order to perform its work of justification of subordinate exertions of political power, be treated by all as one and the same fixture in the country’s political affairs? Pursuit and confirmation of that query, in the face of certain complications, will be the business of Section III.

III The Constitution as a Procedure, Necessarily Fixed in Advance 1 Constitution for the Reasonable According to the LPL of Political Liberalism, a finding of a contested law’s compatibility with a country’s constitution supplies justification for a citizen’s acts in support of that law. It does so by virtue of that constitution’s own supposed reasonability as a pact on justification. By hypothesis, the constitution’s prescriptive content is such that those who accept and resort to it for such a purpose can conscientiously see their way clear to deeming it thus acceptable to everyone else in sight, or at any rate everyone for whose acceptance they have good moral reason to care. That might not include literally everyone, but it would have to include (say) everyone deemed reasonable. We can see pretty well what “reasonable,” here, would mean. Rawls falls back on a set of perceptions that everyone supposedly could and should share: a perception, first, of the very great moral and practical benefits to everyone of having some decent regime of law effectively in force;23 a – perception, second, of the persisting facts of conflicts of interests and value-laden disagreements that might be tolerably understandable on all sides; and then a perception, third, of the commanding moral logic of a reciprocity of respect for everyone’s quest for a life lived in dignity, according to aims and values that a person affirms for herself or himself 23

See ibid., p. 301 (“There is no alternative to social cooperation except unwilling and resentful compliance, or resistance and civil war”); Rawls, “Public Reason Revisited,” 782 (“A democracy necessarily requires that, as one equal citizen among others, each of us accept the obligations of legitimate law”).

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in conditions of freedom. With that set of perceptions on board, we then posit the possibility of a publicly established test for the continued wide acceptability of the regime in force, such that each citizen can in good conscience – each treating the others as equals in dignity and freedom – point to that test as a basis for reciprocating demands for a general disposition to comply with laws that issue in accordance with its terms. When someone takes exception to a given policy to be carried out by law, reasonable citizens feel themselves morally entitled to respond that the law or policy in question might be right or it might be wrong, it might be just or it might be unjust, but it is not outside the constitution and so it is in good moral order for us to call on you for compliance with it.

2 Constitution as Procedural Pact Thus, to the challenge from reasonable political disagreement, Rawls offered an institutional response, and one that chimes neatly with the strain of proceduralism that courses through his political philosophy from A Theory of Justice onward.24 Procedures are a resort for groups of persons who find themselves divided over policies for their group but who even so prefer (or see no choice but) to stick together rather than go their separate ways. In the philosophy of Rawls, “society” (within a given territory) names such a group.25 Faced with disagreements about their group’s proceedings that could force their unity apart (do these laws or these policies merit the respect or rather the contempt of a right-thinking person?), the members find they still can agree on a deflection to a different question (are these laws or these policies constitutional?), for which they expect a publicly certifiable answer to be more readily at hand. That deflection is what we mean by a “procedure.” The initial question is what we label the “substance” of the disagreement. The substitute question then is the procedure the group accepts for getting 24

25

See, e.g., J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 198 (“In the case of a constitution . . . [the] best attainable scheme is of one of imperfect procedural justice”); ibid., pp. 85–86 (explaining how where there is a procedureindependent criterion for correct outcomes but no feasible procedure sure to lead to them, we may settle for an “imperfectly just” procedure – meaning one that is reasonably expected to yield the right results “not always but . . . most of the time”). For a more extended treatment of the continuity of the LPL of Political Liberalism with Rawls’s treatment of the constitution in A Theory of Justice, see F. I. Michelman, “‘Constitution (Written or Unwritten)’: Legitimacy and Legality in the Thought of John Rawls,” Ratio Juris, 31 (2018). See Rawls, A Theory of Justice, pp. 109–112 (on “the circumstances of justice”).

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past it.26 (A group of friends above all committed to spending the day together agree to decide by coin-flip between the beach and the ball game.) In the LPL of Political Liberalism, society’s regnant body of constitutional law serves, in that sense, as the stipulation of the terms of a procedure.

3 Proceduralist Incorporation of Constitutional “Substance” Serving as a procedure does not mean the terms deal only with political processes (we vote and the majority rules) as opposed to political outcomes (abridgments of the freedom of speech are disallowed). Compliance with certain outcome-constraining terms can constitute a part of the procedural (deflected-to) replacement for the primary questions on which agreement cannot be found. So it is with Rawls. “The political system,” he writes, “would not be a just procedure if it did not incorporate [certain] liberties.”27 His “essentials” for a justificatory load-bearing constitution are accordingly of “two kinds,” comprising provisions for “the . . . structure of government and the political process . . . and equal basic rights and liberties of citizenship that legislative majorities are to respect.”28 Responding to a call from Jürgen Habermas for a more rigorously “procedural” defense of liberal constitutional democracy than Habermas thought he could see in Rawls’s writings,29 Rawls later would defend both his conception’s proceduralist credentials and that conception’s incorporation of substantive basic rights and liberties. Those come, he said, to one and the same thing: Democratic laws are “legitimate, not because they are just but because they are legitimately enacted in accordance with an accepted legitimate democratic procedure”;30 but also, in politics (unlike in gambling), the legitimacy of the procedure depends “on the justice of its likely outcome, or on substantive justice.” “Any liberal view,” Rawls wrote, must, in that way and to that extent, “be substantive.”31 26

27 28 29

30 31

See F. I. Michelman, “Dilemmas of Belonging: Moral Truth, Human Rights, and Why We Might Not Want a Representative Judiciary,” UCLA Law Review, 47 (2000), 1234–1236 (explaining this sense of procedure and its application to problems of legal controversy). Rawls, A Theory of Justice, pp. 197–198. Rawls, Political Liberalism, p. 227. See J. Habermas, “Reconciliation through the Public Use of Reason,” Journal of Philosophy, 92 (1995), 116, 126–127. J. Rawls, “Reply to Habermas,” Journal of Philosophy, 92 (1995), 175. Ibid., 170.

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4 “Constitution” as Positive-Legal Code By “constitution” in the LPL of Political Liberalism, Rawls quite unmistakably has in view a body of laws within a country’s positive-legal system and practice. Context makes that clear beyond a possibility of doubt. In a seventeen-page sequence in Lecture VI of Political Liberalism (entitled “The Idea of Public Reason”) Rawls, in the following order, lays down the constitution-centered principle of legitimacy; defines the constitutional essentials; remarks that he speaks of “a constitutional regime with judicial review”; endorses the idea of constitutional democracy as legally “dualist” (sustaining both a “higher law of the people” and an “ordinary law of legislative bodies”); and calls the supreme court of a country an “institutional device to protect the higher law.”32 “Constitution” here plainly signifies a body of laws that are (1) basic, differing in that respect from some other laws in the system, while having in common with all other such laws that they are (2) scriptural, (3) ascertainable, and (4) institutionally settleable (with apologies for that ungainly coinage).33 “Basic” means that the laws of the constitution (or at any rate the parts of the constitution that count as “essentials” for the LPL) set terms of validity – of recognition as binding law by courts and other legal authorities – for any further legal operations of the state and its legislative organs. “Scriptural” means that everyone can point to one and the same collation of canonical prescriptive sentences – fixed (so to speak) in the public space – and agree that that is what is presently and for some indefinite future to count as is this country’s set of constitutional essentials.34 “Ascertainable” means that correct applications of the essentials are “more or less visible on [their] face” and will not too often be “open to wide differences of reasonable opinion.”35 “Institutionally settleable” means that a designated institutional body’s answers to interpretative questions carry the force of law unless and until duly institutionally revised. These elements of publicity, objectivity, fixity pro tempore, ascertainability, and institutional resolvability of constitutional terms are what enable the constitution to serve us procedurally to justify controversial exertions of political power that conform to its terms. 32 33

34 35

See Rawls, Political Liberalism, pp. 216–220, 227–240. For more extended and detailed support of the conclusion that Rawls had dominantly in view, as the “constitution” of the LPL of Political Liberalism, for the American model of a canonically scripted fixture in a country’s system of positive prescriptive law, see Michelman, “Legitimacy and Legality.” See ibid., 232 (“The citizen body fixes once and for all certain constitutional essentials”). Ibid., 229 (explaining why, therefore, in the view of Rawls, a general obligation to the pursuit of social justice cannot be a justification-bearing constitutional essential).

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In sum, then: “Constitution” in the LPL brings to mind a body of laws whose terms, both structural and substantive, are such that (1) citizens see in common what are those terms, and (2) any citizen reasonably disposed can find those terms acceptable by all so disposed as a procedural framework for politics going forward, despite a virtual certainty that from that framework there will be some outcomes that one or another fraction of reasonable citizens will find to be morally, philosophically, or religiously repugnant. As long as – so the thinking goes – outcomes are guaranteed to fall within bounds of a good faith adherence to those terms, none should be such as to warrant cessation of cooperation by any reasonable and morally conscientious citizen.

5 “Central Ranges of Application” The LPL’s project of justification by constitutional-procedural pact sets up a Goldilocks dilemma. A justification-bearing constitution’s terms of substantive assurance cannot be too thin, but neither can they be too thick. In order to sustain the regime’s acceptability to all reasonable and rational citizens, those terms will have to carry a core of common meanings sufficient to render coherent the claims of citizens to each other of the worthiness of any conforming regime for continued support (“not too thin”). The terms will also, however, have to stop short of express and permanent foreclosure of questions over which reasonable citizens divide (“not too thick”). Rather, those questions must be left for future continuing examination in the democratic political venues of daily life, with the hope of conducting those resolutions in ways that all reasonable and rational citizens can find acceptable. The aim, in sum, must be for a sufficiency at all times, but never at any time an excess, of publicly settled meanings for the constitutional essentials. The terms at all times have to say something beyond trivial, but they cannot at any time say too much. To that end, in the view of Rawls, the roster of justificationsupporting constitutional essentials is to be kept short and its items cast at accommodating levels of abstraction.36 That strategy comes with its price. The resulting thinly stated body of substantive constitutional law cannot then always, over the run of 36

See Rawls, Political Liberalism, p. 232 (“The principled expression of higher law is to be widely supported,” and so “it is best not to burden it with many details and qualifications.”).

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disputed cases, be immediately self-applying (that being the very point of keeping the statement thin). Apparently reasonable judgments will differ, sometimes markedly. But a procedural device for getting past groundlevel divisions has as its premise that questions of compliance with the procedure will not themselves be so exposed to divisive disagreement as to render bootless a deflection from the one set of issues to the other. A procedural deflection from divisive disagreements must, after all, consist of terms that are markedly less open to divisive dispute than are the deflected substantive disagreements. The Goldilocks dilemma seems indeed quite a serious one. Recall, now, our illustrative case from this chapter’s Introduction and Overview. The constitution stipulates expressly for guaranteed liberties of “conscience,” “association,” “expression,” and “religion,” as well as for “the equal protection of the laws.” Each term is sufficiently thin that each reasonable and rational citizen can find in it a signification such that the combination of them makes up a procedural deal (so to speak) that each can find acceptable to anyone reasonable. But how do these terms, in combination, apply to pleas for faith-based exemptions from antidiscrimination laws that would have the effect of prohibiting refusals of wedding-related commercial services to gay weddings? Citizens in pluralist conditions as posited by Rawls, none of them forswearing his or her allegiance to the thinly stated procedural pact, are going to disagree, and over matters that will surely count for some as fundamental. The Goldilocks dilemma is full upon us. How does Rawls deal with this dilemma? We can find some suggestions in Lecture VIII of Political Liberalism on “The Basic Liberties and Their Priority.”37 We have seen that, in the view of Rawls, any reasonable underlying conception of justice, which the justificational load-bearing constitution instantiates, will include guarantees respecting certain liberties under abstract names, such as those in our illustrative case. Since the liberties thus named can all without strain be extended in ways that will sometimes bring them into conflict, “the institutional rules which define these liberties,” as Rawls writes, “must be adjusted so that they fit into a coherent scheme of liberties secured equally for all citizens.”38 The “scheme,” then, will have to be unified by some accepted criterion that can consistently guide the adjustments (of which guarantees? in which 37

38

See Rawls, Political Liberalism, pp. 294–299. To be clear, I offer this account not as a sure or the best reading of Rawls’s relevant thoughts, but rather with a view to suggesting why Rawls cannot finally have meant this as his solution to the problem. Ibid., p. 295.

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particular respects?) as the needs become evident. It seems that this criterion, then, will itself, in effect, compose a term of the constitutional pact. According to an underlying conception of “justice as fairness” defended by Rawls in Political Liberalism, the preferred guiding aim would be that of securing for all citizens the conditions of a full and adequate development and exercise, over a complete life, of certain moral powers of the “reasonable” and the “rational.”39 Other liberal-minded thinkers might take a different view. The crucial point for now, though, is that the liberties listed in justice as fairness were never, from the start, reasonably to be understood as “absolute”; rather they all stand subject to being institutionally adjusted as experience may show is required to hold them together as a unified expression of political ends and values. Exposure to such institutional adjustment of the named liberties thus becomes itself a key clause in the deal. But then we have a problem. As one horn of our Goldilocks dilemma (we say), the substantive terms of a justification-bearing constitution in the LPL must at all times carry a core of commonly agreed meanings, sufficient to render coherent the claims of citizens to each other of the worthiness of any conforming regime for continued support. Can that requirement live together with our importation into the constitutional deal of a “subject to institutional adjustment” clause? Well, yes, but only if we assume that (1) there resides within each abstract liberty-idea of the underlying conception some “central range of application” such that there is always “a practicable scheme of liberties . . . in which the central range of each liberty is protected”;40 and (2) this set of mutually compatible, core significations of the abstractly named liberties is one on which all reasonable views converge. With those conditions satisfied, we can understand the justification-bearing constitution of the LPL to include, as one further stipulation, a guarantee that all institutional adjustments of the extensions of the liberties will aim to “preserve intact” the central range of application of each.41 The problem then would stand solved. Thus let it stand – for now, while we work out more details of the LPL of Political Liberalism.42 39

40 41 42

Ibid., pp. 289–290, 331–333. For a closer look at the Rawlsian ideas for a scheme of guaranteed liberties, see F. I. Michelman, “The Priority of Liberty,” in T. Brooks and M. Nussbaum (eds.), Rawls’s Political Liberalism (New York: Columbia University Press, 2015), pp. 175–202. Ibid., 297–298. Ibid., 296. But see Section IV.1 in this chapter.

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6 The Supreme Court as Referee Especially in the pluralist conditions posited by Rawls, but also owing to the intrinsic reasonable debatability of the issues,43 we must expect, on sundry occasions, disagreements among citizens over the contents of the central ranges and hence over satisfaction of the stipulation for good faith adherence to the terms of the constitutional-procedural pact. (See our exemplary case.) The LPL’s scheme of procedural justification will require a further convergence of citizens on an institutional service whose judgments regarding such questions they trust to fall within the bounds of reasonable acceptability. It is with a view to fulfilling this role of trusted procedural agent that Rawls defends the use of courts as authoritative public arbiters of compliance with the constitutional essentials.44 It is not that Rawls assumes, on the level of theory, an absolute need for an institution specially deputized to such a service, or that any serving institution must necessarily be a law-court conducting its deliberations in the forms of a proper adjudication. Rather, Rawls in this work finds no cause to upend such an arrangement when once it has become a settled part of a country’s political practice. He takes that choice to be a reasonable one in line with his constitution-centered proposition on legitimacy.45 In summation, then, of the argument up to here: The LPL of Political Liberalism posits a scheme in which citizens justify contested laws to free and equal dissenting fellow citizens by claiming the compatibility of those laws with a certain constitutional-procedural pact, which (by hypothesis) merits acceptance as such by every reasonable citizen. A supreme court acts as designated institutional “protector” of that pact. Our conclusion from Section II still holds: In order for this scheme for justification to hold together, it would seem that the pact the judges act to protect must be the exact same one as that to which the citizens point by way of justification. But how, then, do we reconcile that deduction with an allowance – as I have suggested Rawls make – of a looser license to citizens than to judges to stretch the envelope of constitutional interpretation? The answer comes, as I will suggest, from a later, further set of reflections from Rawls on the problem of liberal legitimacy in pluralist conditions. 43

44 45

See Rawls, “Public Reason Revisited,” 804–805 (“Conflicts arising from the burdens of judgment always . . . limit the extent of possible agreement”). See Rawls, Political Liberalism, p. 237. See ibid., p. 234.

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IV “Constitution” Decentered Political Liberalism appeared in paperback form in 1996, with its main text unchanged from the 1993 edition. Rawls did, however, see fit to include, along with the original “Introduction” of 1993, a new “Introduction to the Paperback Edition.” He also included (as an additional ninth “lecture” to the eight comprising the 1993 edition of Political Liberalism) his contribution – “Reply to Habermas” – to an exchange between the two philosophers in the pages of the Journal of Philosophy.46 Later versions of the paperback edition also include Rawls’s 1997 article “The Idea of Public Reason Revisited.” Taken together, the added materials carry new emphases, or new departures, on three fronts that we shall take up one by one: first, the idea of a “family” of somewhat conflicting but all of them reasonable liberal conceptions of justice; second, a proposition tying political legitimacy to the diligence of citizens in assessing the public reasonableness of their actions (compare: tying legitimacy to judgments of constitutional-legal compliance); and third, the idea of the constitution as an ongoing project.

1 Liberal Justice Conceptions as a “Family” (Trouble for the LPL?) The new Introduction highlights a point that Rawls apparently felt had not come through with sufficient clarity in the main text of the book.47 It is this: Within bounds of the constitutional-democratic tradition, a society can be well ordered while reflecting, in its political arrangements, any one of an indefinitely numerous “family” of underlying conceptions of justice. The family members have in common that they pick out certain “rights, liberties, and opportunities” to which they assign a special priority.48 But there can be “different and incompatible” reasonable such conceptions, and so public reason cannot demand more of you or of me than to draw our resolutions of fundamental political matters from reasons consorting with that member of the family that is for you or for me “the most (more) reasonable.”49 For John Rawls, that member is the conception he calls justice as fairness, as represented by the famous 46 47

48 49

See Habermas, “Reconciliation through Public Use of Reason.” See S. Langvatn, “Legitimate but Unjust; Just, but Illegitimate: Rawls on Political Legitimacy,” Philosophy and Public Affairs, 42 (2016), 132–153, for a more extended discussion. Rawls, Political Liberalism, p. lviii. Ibid., pp. lvix–lvx.

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two principles of justice; but other liberal-minded thinkers, as Rawls now expressly allows, can and do reasonably disagree.50 This new emphasis on reasonable disagreement within the liberal fold, not just at the level of constitutional-legal application but at the level of a constitution’s underlying conception of justice, would seem initially to spell trouble for the LPL of Political Liberalism (first edition). Recall our pending solution to the problem posed by the insertion of a “subject to institutional adjustment” clause into the load-bearing constitution of the LPL.51 We could insert, we say, a further clause to the effect that no such adjustment would invade a “central range of application” of the liberties guaranteed by the constitution. That solution would depend on fulfillment of two conditions: (1) that there is a practicable scheme of aptly adjusted liberties that protects the central ranges of each, and (2) that the ranges treated as central by this scheme are ones on which all reasonable views converge. Rawls’s Lecture VIII in Political Liberalism on “The Basic Liberties and Their Priority” suggests we can draw from historical experience some confidence in the possibility of satisfaction of the first of those two conditions.52 The Lecture does not, however, nail down the second condition, and the new Introduction’s admission of a family of reasonable but conflicting underlying liberal justice conceptions opens, in regard to it, a space for doubt. The hitch comes with the need, affirmed by Rawls, to supply an underlying criterion by which to guide reciprocal adjustments of the ranges of the liberties listed in a constitution, as required to maintain them as a unified, coherent scheme.53 As we have noted, the criterion advanced by Rawls in the Lecture is to keep the scheme of liberties as a whole conducive to the development and exercise by citizens of certain powers of moral agency.54 Thus, for example, the basic liberty to hold property will have as its core mission the assurance to each citizen of “a sufficient material basis for a sense of personal independence and self-respect” to allow for the development and exercise of these agency powers.55 That liberty, then, will be open to possible institutional curtailments in respects deemed to fall outside that core (but to which other liberal views of the moral basis for property rights 50 51 52 53 54 55

See ibid., lvix. See also, on these same points, Rawls, “Public Reason Revisited,” 773–775. See Section III.5 in this chapter. See Rawls, Political Liberalism, pp. 297–298. See Section III.4 in this chapter. See Rawls, Political Liberalism, p. 293, 297. Ibid., p. 298.

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might take exception) – for example, denial of inheritance rights or socialized ownership of the means of production.56 The troubling question is whether any guiding criterion that you or I or John Rawls might propose will not be subject to reasonable intraliberal disagreement in conditions of pluralism. If we ask from whence Rawls draws the agency powers criterion, the answer will be from a certain conception of the person “as political,” or “as citizen,” embedded in an idea of justice as the pursuit of fair terms of social cooperation, put forth and defended by Rawls in Political Liberalism under the name of justice as fairness.57 Defended by him, that is to say, as “the most reasonable” conception, for such a purpose, within bounds of the broad tradition of constitutional democracy, the most reasonable, that is (as we now must add), among other, conflicting but still reasonable conceptions within those bounds.58 That last concession must dent, at least, any shield of confidence in the second of our two stated conditions for a “central ranges” kind of solution for the Goldilocks dilemma: that is, that all reasonable views can converge on the central ranges of the listed guarantees, in a constitution sufficiently thick with guarantees to sustain the claims of citizens to each other of the worthiness of support of any conforming regime. And that leads us, then, to a second, possibly related innovation in the Introduction to the paperback edition.

2 A Criterion of Legitimacy Based on Reciprocity (CLBR) Rawls’s 1996 “Introduction to the Paperback Edition” revisits the question of legitimacy – the same question as before, of the conditions on which our exercise of coercive political power is justifiable to free and equal others. It offers a response in terms differing noticeably from those of the LPL of 1993 – which still, however, is preserved in the main text of the paperback of 1996. “Our exercise of political power,” Rawls now writes, is proper only when we sincerely believe that the reasons we would offer for our political actions are sufficient, and we also reasonably think that 56

57

58

See ibid. See, generally, W. A. Edmundson, John Rawls: Reticent Socialist (Cambridge: Cambridge University Press, 2017). See Rawls, Political Liberalism, pp. 18–19, 29, 34; Rawls, “Public Reason Revisited,” 799–800; F. I. Michelman, “The Subject of Liberalism,” Stanford Law Review, 46 (1994), 1815–1816. See Rawls, Political Liberalism, p. xlviii–xlix.

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other citizens might also reasonably accept those reasons. This criterion [of reciprocity] applies on two levels: one is to the constitutional structure itself, the other is to particular statutes and laws enacted in accordance with that structure. Political conceptions to be reasonable must justify only constitutions that satisfy this principle.59

Rawls later, in “The Idea of Public Reason Revisited” of 1997, gave this newer formulation its own separate name as “the idea of political legitimacy based on the criterion of reciprocity.”60 We shall hereinafter sometimes call it, for short, Rawls’s CLBR (for Criterion of Legitimacy Based on Reciprocity). Rawls wrote, in the new Introduction, that the CLBR “gives the liberal principle of legitimacy” – citing, there, to a page in the book where the prior formulation appears in the main text – “as it applies to constitutions and statutes enacted under them.”61 A little work is required to see exactly what this means. Comparing the first sentences, respectively, of the LPL of 199362 and the CLBR of 1996, we see that the CLBR has displaced constitutional compliance from its justificational load-bearing position in the LPL. That load now rests not on the assertible conformance of a political action to the guarantees of a certain constitution, but rather on the action’s being one that those supporting it can and do reasonably and sincerely see as having sufficient support from reasons other citizens can reasonably accept. Say, the action is support for a piece of legislation. The criterion of reciprocity applies directly; no mention – yet – of any “constitution.” From the text immediately following in the CLBR, we see that Rawls does normally expect or anticipate, as a part of a well-ordered society’s political practice, the presence therein of a higher-law type of constitution complete with substantive guarantees. But still the plot has thickened. The upshot now would seem to be that the LPL of Political Liberalism is to be read, despite its sweeping language (“is justifiable only when”), as a proposition for a limited (if supposedly typical) class of cases: those in which, as it historically has happened, a society does have in place, as a part of its overall political practice, a higher-law type of constitution in which a set of substantive guarantees figures as an essential component. 59 60

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Rawls, Political Liberalism, p. xlvi. Rawls, “Public Reason Revisited,” 771. A line of development of Rawls’s texts and thoughts on legitimacy is carefully traced by Langvatn, “Legitimate but Unjust,” to which work I am much indebted. Rawls, Political Liberalism, p. xlvi. See Section II in this chapter.

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To that reading, it seems some further conclusions would attend. First, when citizens weigh in politically on the design or contents of their country’s constitution (voting, say, in a constitutional referendum), they are, of course, to act in accord with reciprocity. So, for example, Rawls in Political Liberalism had expressly allowed that a bill of justiciable, substantive constitutional guarantees is not necessarily required as a part of any reasonably acceptable political regime within bounds of the constitutional-democratic tradition. For some countries, as he wrote, a regime of parliamentary supremacy might provide “firmer support for the values that [inclusion of a bill of rights] tries to secure.”63 Thus, a citizen might sometimes reasonably throw the weight of her political actions against inclusion of a higher-law bill of constitutional rights as a part of her country’s political practice. Rawls’s CLBR would require that her choice to that effect should meet the criterion of reciprocity, and so of having its basis in what she sincerely finds to be the most reasonable balance of values in a reasonable political conception of justice. But now suppose the country’s choice goes the other way, in favor of inclusion of a bill of rights. Then, as long as our citizen takes that also to be a choice that is reasonable (although it is not, in her view, the best choice), it is an aspect of her own reasonability as a citizen that she will accept this choice as settled in her country’s public reason going forward. We have, in the result, a modestly hedged affirmation of the LPL of 1993, complete with its supposition of substantive guarantees among the constitutional essentials. But now let us carry on with the case of our reasonable citizen. Legislation is proposed to flatly prohibit commercial discrimination on grounds of sexual orientation, with no faith-based exemptions. This proposal has, in her considered view, the support of the most reasonable balance of applicable public values, now including values of compliance with the constitution’s substantive guarantees. Assume, though, that this law is found to be blocked by currently prevailing judicial constructions of the scheme of scriptural constitutional guarantees.64 These blocking constructions reflect what our citizen admits being a reasonable balance of constitutional and other applicable public values, but not the best or most reasonable balance. Does Rawls’s CLBR mean to dissuade her from any further campaigning (or litigating) in support of that view? I read Rawls to answer that question with a “no.” 63 64

Rawls, Political Liberalism, pp. 234–235. See Section I.2 in this chapter.

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3 Constitution as “Project” That reading carries us to the third of the new emphases to be found in Rawls’s Introduction to the 1996 edition of Political Liberalism. Not only is the substantive content of public reason – “the principles, ideals, and standards that may be appealed to” – allowed to be that of any one of a family of reasonable political conceptions of justice, but also “this family changes over time.” Conceptions within the family being not in all respects compatible, “they may be revised as a result of their debates with one another” – as, for example, “social changes over generations . . . give rise to new groups with different political problems.”65 A justificational load-bearing constitution, in other words, is not armored against temporal stress. Over the course of historical time, as a country’s conditions undergo change, so may widespread societal understandings of the cores of constitutional guarantees. New legislative initiatives call forth new and possibly modulated judicial responses. Those responses may themselves then exert a steering effect on the next run of legislative initiatives. The process over time may end in a somewhat reconfigured consolidation of core understandings of substantive constitutional guarantees, and of attendant constitutional doctrine, from where the courts and the country had left them sometime back. Again we face a dilemma, this time between fixture and learning in the substantive essentials of a justification-bearing constitutional pact. That pact has to carry meanings fixed in time in the public space.66 Yet it cannot be static and still bear the final weight of justification, because reasonable understandings of the point of constitutional guarantees undergo modulation in the sweep of time and change. Perhaps, then, it is by way of combined response to not just one challenge but two of them – the challenges from reasonable disagreement (even at the level of underlying justice conceptions) and from temporality – that, as I now suggest, one might understand Rawls to have endorsed the fine distinction I have suggested between the constitutional fidelities required of judges and citizens, respectively, in a well-ordered society. We would thus read Rawls to envisage an institutional division of labor between a supreme court and the people, in a dialectically structured project of justification-worthy constitutional maintenance over time. Rawls’s reasonable citizens are heirs to a broad constitutional-democratic 65

66

J. Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. lii–liii; see Rawls, “Public Reason Revisited,” 775. See Section III in this chapter.

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tradition. They have an acculturated general sense of when a law or policy begins to grate on a liberal democracy’s scheme of constitutional guarantees. That sensibility is subject to modulation over time. It sees and feels and responds to actions on large public questions, such as same-sex marriage or the license of the police to crack open our cell phones. Rawls wants to have the people, chiming in with pressures and votes directed to such actions, to do so in consideration of their views of the most reasonable balances of the political values that they draw from the historical tradition of constitutional democracy. The idea, I think, is that citizens pressing sundry views within that broad limit can compose a constant force-inwaiting for provocation of updated adjustment of the scheme of constitutional guarantees, so as always to be dragging it toward its fully justification-worthy state.67 A just constitution is never “fully” realized. “In Habermas’s terms,” writes Rawls, “it is a project to be carried out.”68 The people would not be that constant force-in-waiting if required to steer their deliberations formally and strictly by past-established constitutional law and precedent. The judges, by comparison, are to stand somewhat more firmly by that stock because they are the system’s anchor to windward, its representation of the element of fixture that must necessarily inhere at all times in any procedural pact, in order that it be a pact at all. Yet still the judges working under agitation from citizens variously responding, from within a somewhat extended family of political conceptions within bounds of the constitutional-democratic tradition, can sometimes see how the seed of a required new adjustment – one that citizens in pluralist conditions can (now) accept as at least reasonable, if not (all of them) as the most reasonable – is already planted in the previously settled material.

V Conclusion I have been plotting here the rise and workings, within the political philosophy of John Rawls, of the legal-institutional idea of a political society’s constitution. 67

68

See Rawls, “Public Reason Revisited,” 774–775; Langvatn, “Legitimate but Unjust,” 145–146. Rawls, “Reply to Habermas,” 152. Rawls responds here to a complaint from Jürgen Habermas that justice as fairness puts “the philosopher” into the people’s rightful place, in a democracy, as constitutional author; see Habermas, “Public Use of Reason,” 119–121, 128. As Langvatn rightly points out, having in force a justification-worthy constitutionalprocedural pact is not ever, in the view of Rawls, in itself a sufficient condition for a political regime’s legitimacy. Additionally required by him is an element of authorship of that pact by the people subject to it. See Langvatn, “Legitimate but Unjust,” 137.

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The rise, in my rendering (Section II), starts out from a normative conception of democracy. If, in a democratic regime, political power is a power that citizens collectively “impose on themselves and on another as free and equal,”69 we need to understand how democracy is possible in pluralist conditions. How, in such conditions, can democratic citizens ever hope to justify their collective, coercive exertions of power against themselves and each other as free and equal?70 In answer to that question, circa 1993, came the idea of the constitution. There could be, so Rawls proposed in the LPL of 1993, a higher-law pact, whose terms for the regulation of all subsequent political actions and outcomes in that country any citizen might reasonably call upon all reasonable fellow citizens to accept, even as all would understand that some outcomes authorized by those terms – not excluding outcomes affecting fundamental matters – would be repugnant to some fraction of the citizens. Now, in order thus to serve procedurally, as a ground for freely agreeable settlements of otherwise intractable political disagreements among citizens, the constitution (as argued in Section III) would have to be a compendium of norms commonly cognized by all citizens, fixed in advance of their applications, which all as free, equal, and reasonable could reasonably be expected to accept. By way of confirming a realistic possibility of meeting these conditions, we see Rawls explaining (1) how an expectation of a convergence by reasonable citizens on a set of core meanings for a short list of essential constitutional guarantees could suffice to meet them, and (2) how a constitutional judiciary could be enlisted and trusted by citizens to grasp and share in those convergent core meanings so as to ensure their prevalence in practice. Accepting provisionally that account of the matter, I ended Section III with a claim that it seemingly must commit the constitutional judiciary and the citizenry to the same strictness of fidelity to one and the same body of constitutional law-in-force. That stood in seeming tension, though, with suggestions I had found in Rawls’s writings that the fidelity obligations of the judiciary are somehow stricter than those attaching to citizens at large. In search of further resolution, I then turned, in Section IV, to the 1996 paperback edition of Political Liberalism and writings allied to it. In those writings we find, in the form of Rawls’s CLBR, a partial shift in the stated, decisive ground of liberal political justification. That ground is no longer, as in the LPL of 1993, a reasonably assertible compliance of 69 70

See Rawls, Justice as Fairness, p. 40; Rawls, Political Liberalism, p. 216. See Rawls, Justice as Fairness, p. 41; Rawls, Political Liberalism, pp. 216–218.

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political outcomes with the terms of a suitable higher-law constitution. The ground has rather become an assumption of a certain motivational input to political actions, that of reciprocity. The shift in the ground of justification remains partial only, though, because – as shown in Section IV.2 – fulfillment of reciprocity will most typically, in the view of Rawls, still entail a commitment of fidelity to a set of substantive constitutional essentials. This partial shift in the stated basis of justification comes, in my telling, along with some other thickenings of Rawls’s plot. These include an intensified perception of the reach of intraliberal reasonable disagreement, now to depths that allow for reasonable disagreement (1) over the inclusion (or not) of justiciable substantive guarantees as parts of a justificational load-bearing constitution, and (2) over a set of core meanings for such guarantees, when the public judgment has historically gone in favor of including them.71 I find Rawls – Section IV.2, again – responding differently to these two allowances. Regarding the first, I read him to hold that reasonable citizens will accept, as binding on public reason going forward, a choice by the country to include a constitutional bill of rights, as long as they can find that choice supportable by a reasonable balance of public values, even if not the balance they find most reasonable. Regarding the second allowance, by contrast, I read Rawls to give citizens a license to agitate against judicial assignments of core meanings that they admit lie within the bounds of reasonability but that they do not accept as finally correct or the most reasonable. That extra allowance I find – Section IV.3 – to reflect a necessity, perceived by Rawls, for any justificational load-bearing constitution to figure simultaneously for citizens as both a fixture and a project. In the end, then, we find the LPL of 1993 still surviving. It does so by the understanding that the constitution at its fulcrum includes a set of guarantees not only respecting political outcomes but also respecting an ongoing dialectical process of adjustment of that set of guarantees, in which the people, disagreeing, have their part. 71

See Sections IV.1 and IV.2 in this chapter.

5 The Challenges of Islamic Law Adjudication in Public Reason mohammad h. fadel

I The Idea and Ideal of Public Reason and the Problem of Islamic Law Adjudication John Rawls explains his turn to political liberalism1 as motivated by the need to give a more satisfying account of what he comes to see as a defining sociological feature of a democratic society governed by free institutions: the enduring “fact of reasonable pluralism.” The fact of reasonable pluralism is based on the assumption that when a well-ordered society is governed by free institutions that guarantee the familiar liberties, including freedom of thought, even reasonable citizens will be divided by incompatible religious, moral, and philosophical doctrines. Accordingly, the central question posed in Political Liberalism is how a well-ordered constitutional democracy, one that is effectively regulated by fair principles of justice guaranteeing both democracy and individual liberty, such as Rawls’s own principles, could endure over time, given the persistence of these deep doctrinal divisions.2 Rawls argues that such a society can only be well-ordered and stable if the citizens, despite their doctrinal divisions, share a common political conception of justice that governs their basic structure. In order for such a political conception to arise and endure, however, Rawls argues that it must be a free-standing conception of political justice. By this, he means that the political conception cannot be justified by reference to the terms of any particular comprehensive doctrine, such as comprehensive liberalism; rather, it must be appropriately limited, both in its scope and its metaphysical claims, so that the adherents of any reasonable comprehensive doctrine could endorse it, using resources internal to their own comprehensive doctrines. 1 2

J. Rawls, Political Liberalism (New York: Columbia University Press, 1996). Ibid., p. xx.

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The free-standing nature of the political conception flows from the requirement that the basic structure of the well-ordered society must be reasonably acceptable to all reasonable citizens. Rawls himself thinks that the best way to specify the content of this free-standing political conception would be to determine what principles of justice, and terms of cooperation, representatives of free and equal citizens would agree to in an original position from behind a veil of ignorance. Insistence on the veil of ignorance ensures that the parties cannot privilege themselves or their preferred comprehensive doctrines in the basic structure of the political conception. Given this condition, Rawls argues that they would only choose principles of cooperation that all reasonable persons could endorse and would reject any political conception derived from, and acceptable to, only a particular comprehensive doctrine. Such an agreement would not amount to a full rational consensus, but would result, in Rawls’s analysis, in a political conception supported by an “overlapping consensus” of the citizens. Where an overlapping consensus on a political conception of justice exists, a majority of the politically active members of the citizenry adhere to the principles of justice, either because they see the principles of justice as continuous with their respective comprehensive doctrines or, at a minimum, not in conflict with them. Justification based on this overlapping consensus, Rawls argues, makes it possible for political justification to be based on reasons that no reasonable citizen could reasonably reject, in spite of the persistence of reasonable pluralism.3 The overlapping consensus accounts for why the political conception can remain stable despite continued disagreements on ultimate questions, and why it is sufficient to generate enduring trust and civic friendship among the otherwise divided citizenry. The sociological balance of power among the followers of different doctrines becomes a matter of political indifference because a critical mass of citizens endorses the principles of justice for moral reasons internal to their own conceptions of the good. The polity’s principles of justice will not change if the balance of power among society’s different comprehensive doctrines changes. In this chapter I show that Rawls’s political liberal idea of public reason offers a way of thinking about what the place of Islamic law can be in the judicial system of a democratic society. When Muslims endorse 3

Rawls refers to this mode of political justification, in the abstract, as “the idea of public reason,” and when citizens and public officials manifest it in their political practice, he refers to it as “the ideal of public reason.” J. Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review, 64 3 (1997), 768–769.

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conceptions of Islam that are reasonable from a Rawlsian perspective, or at least as reasonable as adherents of other religious and nonreligious comprehensive doctrines, Muslims and non-Muslims will see that Rawlsian political liberalism provides an important framework for showing how Islam can be compatible with liberal democracy and thus counter irrational fear of Islam and Muslims that has spread in many democratic societies. The compatibility of Islam and Rawls’s interpretation of liberal democracy may not seem obvious. Rawls’s conception of a well-ordered democracy requires it to be effectively governed by principles that all reasonable citizens can reasonably endorse. Only some citizens in a well-ordered society governed by Rawls’s principles of justice, however, will be Muslims. Yet, orthodox Islam sees Islamic law as the true measure of justice that, from a moral perspective at least, binds all of humanity. Yet, under the conditions of a well-ordered society, it is unreasonable to expect that every citizen would agree to be bound by the entirety of Islamic law. Religion, even when reasonable, is for Rawls a paradigmatic case of a controversial doctrine that cannot be used for political justification because its doctrines are not shared by all reasonable citizens. It seems obvious, therefore, that there cannot be a political or legal place for Islamic law in a liberal democracy in Rawls’s ideal theory,4 except to the extent that Islam and Islamic law may play a legitimate role in the personal and associational lives of Muslim citizens of a well-ordered society. It is an empirical fact, however, that numerous states incorporate elements of Islamic law in their formal legal systems. Some states do so as part of their constitutional law, while others may adopt elements of Islamic law in particular statutes. Even courts in liberal democracies without a Muslim majority are sometimes required to apply Islamic law norms, such as in cases involving principles of private international law, or when the parties appearing before the court have incorporated Islamic law norms in their private agreements. This chapter explores, from the perspective of nonideal theory, how a public reason–minded judge should approach issues of Islamic law. I argue that Rawls’s idea of public reason can play an important role in guiding how public reason–minded judges should apply Islamic law when the rules of their legal system require them to do so. When they resolve legal questions related to Islamic law in this fashion, their decisions will manifest the ideal of 4

Rawls, Political Liberalism, p. 213 (describing public reason as an ideal, representing “how things might be”).

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public reason and, in the context of nonideal theory, will serve to resolve or reduce any tensions, real or perceived, between the substantive requirements of public reason and historical doctrines of Islamic law. The chapter proceeds as follows: I begin with a discussion of the content of public reason, its relationship to the judiciary in nonideal theory generally, and Rawls’s claim that the judiciary has a special duty to uphold the principles of public reason. I then discuss the relationship between public reason and Islamic law, understood as a historical body of metaphysical principles and substantive legal rules. I will then argue that because Islam as a comprehensive doctrine distinguishes between metaphysical commitments and the political values vindicated by particular rules of law, courts can legitimately distinguish between Islamic theological commitments and the political values implicit in the substantive rules of Islamic law. Moreover, I argue that coercive application of a substantive rule of Islamic law is consistent with public reason if the political value vindicated by Islamic law is otherwise consistent with the norms of public reason. I then proceed to discuss, briefly, a series of cases from different jurisdictions where courts, when called on to construe either particular rules of Islamic law, or Islamic law generally, failed to manifest the ideal of public reason in their decisions, with negative results. A brief conclusion follows.

II Public Reason and the Role of the Judiciary in Nonideal Theory In Rawls’s ideal theory, reasonable citizens are motivated to limit themselves to arguments that satisfy the requirements of public reason. However, in the real world, the world of nonideal theory, citizens and politicians frequently stray from the ideal of public reason. Rawls is not always clear as to whether the idea of public reason applies only to “constitutional essentials and matters of basic justice”5 or whether it applies also to “ordinary” political decisions and ordinary citizens in the polling station.6 Whatever ambiguity Rawls presents with respect to 5 6

Ibid., p. 214 (describing limits of public reason as applying only to “political essentials”). Ibid., p. lvi (stating that “the outcome of a vote is to be seen as reasonable provided all citizens of a reasonably just constitutional regime sincerely vote in accordance with the idea of public reason) (emphasis added); Rawls, “The Idea of Public Reason Revisited,” 769 (stating that citizens realize the ideal of public reason when they vote as though “they were legislators and ask themselves what statutes, supported by what reasons satisfying the criterion of reciprocity, they would think it most reasonable to enact”).

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the scope of public reason’s applicability, he is absolutely clear that judicial bodies are duty-bound to manifest the ideal of public reason in their decisions interpreting the constitution,7 and that the idea of public reason thus applies in a special way to supreme court judges with constitutional review powers.8 Constitutional democracies distinguish between a higher constitutional law and ordinary law, which must be made in accordance with the procedures and values of the constitution. Rawls characterizes this type of regime as a dualist democracy that distinguishes “the higher law of the people from the ordinary law of legislative bodies.”9 The written constitution of a constitutional democracy is seen as an expression of the will of a particular people and the political ideas and values that they share at a particular moment in time. It provides the specific content for the basic structure of their regime. Moreover, it also sets the conditions for the ordinary laws that govern society. Actual written constitutions, however, may not fully reflect the idea of public reason, either because some of its express provisions are inconsistent with the idea of public reason,10 or because certain basic liberties are insufficiently specified.11 It is therefore of particular importance that supreme court judges who interpret and apply a written constitution that emerged from an actual constitutional bargain, rather than the original position, do so in a fashion that manifests the ideal of public reason.12 According to 7 8

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Ibid., 767–768. Rawls, Political Liberalism, p. 231 (a supreme court in a constitutional democracy is “the exemplar of public reason”). Rawls briefly mentions, but does not consider in any depth, the alternative models of Westminster parliamentary democracy, or German constitutional practice. Ibid., pp. 234–235. Ibid., p. 233. The bicameralism of the US Constitution, for example, is inconsistent with public reason’s requirement that all citizens have an equal share in sovereignty insofar as it affords each state two votes in the senate, regardless of the state’s population. The Bill of Rights of the US Constitution, from the perspective of public reason, is also deficient insofar as it underspecifies both certain political liberties by relying on vague references to concepts such as “due process of law,” and is indifferent to issues of distributive justice. The differing approaches to the judicial understanding of “liberty” in the US Constitution makes this problem clear: Conservative justices such as the late Antonin Scalia insist on delimiting vague constitutional provisions, such as the notion of “liberty” or “cruel and unusual” to the historical uses of such terms at the time the relevant provision was first adopted, while a justice motivated by the idea of public reason would instead interpret such terms by consideration of the reasonable balance of political values such terms might mean from the perspective of parties in the original position rather than adopting solely the perspective of the provisions’ authors.

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Rawls, supreme court judges should appeal only to what they sincerely see as the most reasonable political values, values that they also “believe in good faith . . . that all citizens as reasonable and rational might reasonably be expected to endorse.”13 Rawls thinks that supreme court judges are well equipped relative to other branches of the government to manifest the ideal of public reason: Institutionally, their role is to give a coherent interpretation of the constitution and to protect its integrity, unlike other public officials who must incorporate in their decisions a range of other political considerations, and are more susceptible to the logic of power politics and electoral pressure. Accordingly, they must be conscious of deciding cases and controversies solely on the basis of legal rules and political values acceptable to all reasonable citizens, not on the basis of nonpublic reasons, be they sincerely held comprehensive doctrines or venal, corrupt ones.14 If the ideal of public reason does not constrain ordinary citizens and politicians in day-to-day retail politics, it must be because if their exercise of political power strays beyond constitutional limits, construed in conformity with the idea of public reason, a properly motivated judiciary will invalidate their actions.15 When supreme court judges reliably and regularly decide cases and review ordinary laws in this fashion, they help realize the ideal of public reason, establish and deepen a reciprocally acceptable basis for the constitutional regime, and act as “exemplars” of public reason.16 Rawls’s description of the role of supreme courts makes most sense as part of his nonideal theory. Yet, his use of public reason to anchor the duties of courts makes it clear that, in Political Liberalism at least, he envisions courts as playing a crucial role in adopting, extolling, and entrenching, over time, reasonable political values among a constitutional democracy’s actual citizens, at least as compared to elected politicians. By publicly defending the political values of public reason, courts simultaneously protect the integrity of the constitutional order and instruct the citizens about the values of public reason. Even so, however, Rawls admits that even the most publicly motivated judiciary cannot stand in the face of a democratic majority determined to undermine one or more facets of public reason.17 The content of public reason, therefore, always exists beyond the practice of 13 14 15 16 17

Ibid. Ibid., pp. 231–234. Ibid., p. 235. Ibid. Ibid., p. 233.

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ordinary politics, serving as a normative anchor to guide citizens and public officials moved by its values, but with no guarantees that even in constitutional democracies its values will actually prevail.18 I discuss my conception of the relationship between Islamic law and public reason in the context of judicial practice in the next section. My argument assumes a normative determinacy to public reason as determined by ideal theory, but also that this content is modulated in nonideal theory as a result of the unique constraints facing judges who operate in distinctive judicial systems where actual constitutional bargains force certain departures from the idea of public reason.

III Islamic Law, Courts, and Public Reason Rawls’s ideal theory clearly excludes religious reasons as admissible justifications for public law. Even though nonreligious reasons may also be inadmissible from the perspective of public reason due to their complexity or esoteric nature, it is nevertheless the case that religious reasons represent a paradigmatic case of what Rawls calls nonpublic reason. Religious reasons are nonpublic for at least two reasons: First, because of the comprehensive nature of many religions, Islam included, their claims go far beyond the domain of the political;19 and second, 18

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Ibid. Rawls’s account of the relationship of public reason to judicial practice in constitutional democracies, even if it is accepted that it is part of his nonideal theory, entails an understanding of public reason as essentially invariable and whose positive content is understood from the perspective of ideal theory. His discussion of public reason in “The Idea of Public Reason Revisited” seems to allow, however, for a certain kind of pluralism in the precise manifestations of public reason in different democratic polities. Rawls, “The Idea of Public Reason Revisited,” 773–775. While he is careful to limit the possible plurality within public reason to political conceptions that satisfy the “criterion of reciprocity, viewed as applied between free and equal citizens, themselves seen as reasonable and rational,” ibid., 774, his inclusion of Israel and India as examples of states governed in a fashion broadly consistent with public reason is puzzling. See, e.g., Y. Peled and D. Navot, “Ethnic Democracy Revisited: On the State of Democracy in the Jewish State,” Israel Studies Forum, 20 1 (2005), 3–27, 4 (arguing “that the Israeli state has been evolving from a state resembling non-democratic ethnocracy, through ethnic democracy, toward non-democratic majoritarianism”); O. Yiftachel, “Democracy or Ethnocracy,” Middle East Research and Information Project, 28 (1998), available at www.merip.org/mer/mer207/democracy-or-ethnocracy; and A. Mishra, “India’s Non-Liberal Democracy and the Discourse of Democracy Promotion,” South Asian Survey, 19 1 (2012), 35 (arguing that although India had liberal democratic aspirations at independence, its subsequent political evolution has produced a nonliberal democracy). Rawls describes moral/philosophical conceptions as comprehensive when they include conceptions of what is valuable in human life, ideals of personal character, etc., with the limit being the entire range of values in human life. Rawls, Political Liberalism, p. 13. As

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even when a religion’s claims are properly political, they are likely to be justified on metaphysically controversial grounds that are not reasonably accessible to all reasonable citizens.20 For these reasons, liberal theorists tend to be particularly vigilant with respect to the possible intrusion of illegitimate religious reasons into the public sphere, even though nonreligious comprehensive moral and philosophical doctrines, including political ideologies, can also undermine the liberal public sphere.21 Political liberals’ historical wariness of religion in the political sphere makes it that much more difficult to situate Islamic law in a judicial system that Rawls expects to act as the final barrier against unreasonable politics. Whatever objections public reason might raise to the public enforcement of Islamic law in ideal theory, however, Islamic law has historically been one of the most important of the world’s legal systems, and has been recognized as such.22 Islamic law continues to be salient in various Muslim-majority23 and non-Muslim-majority jurisdictions

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noted by Andrew March, Islam might be considered, in Rawlsian terms, a “‘comprehensive ethical doctrine’ par excellence.” A. March, “Islamic Foundations for a Social Contract in Non-Muslim Liberal Democracies,” American Political Science Review, 101 2 (2007), 236; See, also, Ibn Khaldūn, An Introduction to History: The Muqaddimah, translated by F. Rosenthal, abridged and edited by N. J. Dawood (London: Routledge and Kegan Paul, 1967), p. 155 (contrasting the regime of the Islamic caliphate to one based on rational politics in that the caliphate secures human happiness in both this life and the one to come, while a regime based on rational politics aims to secure human happiness only in this life). R. Audi, “The Separation of Church and State and the Obligations of Citizenship,” Philosophy and Public Affairs, 18 3 (1989), 276 (quoting John Locke on the temptation to claim revealed authority in support of a position when attempts at rational justification fail). For a more nuanced taxonomy of religious reasons, and their relationship to political liberalism, see A. March, “Rethinking Religious Reasons in Public Justification,” American Political Science Review, 107 3 (2013), 523–539. Indeed, nonreligious comprehensive doctrines, e.g., market fundamentalism or ethnic nationalism, may today be a much greater threat to liberal democracy than religious politics. E. Hill, “Al-Sanhūrī and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ʿAbd al-Razzaq Ahmad al-Sanhuri, Egyptian Jurist and Scholar, Part II” Arab Law Quarterly, 3 1 (1988) 35; G. A. Bermann, et al., “Comparative Law: Problems and Prospects,” American University International Law Review, 26 4 (2011), 951 (noting that the First Hague Congress of Comparative Law in 1932 adopted a resolution recognizing Islamic law as a source of comparative law). T. Stahnke and R. C. Blitt, “The Religion-State Relationship and the Right to the Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries,” Georgetown Journal of International Law, 36 (2005), 947–1078. Even where Islamic law is not formally enshrined in a constitution, Islamic law may nevertheless form the basis for important portions of civil law, particularly family law.

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with significant historical Muslim minorities,24 and with increasing Muslim migration and conversion to Islam in western liberal democracies, also in jurisdictions without a long tradition of inclusion of Muslim citizens.25 Nonideal theory, therefore, must come to terms with the existence of Islamic law and its likely continued role in the governance of Muslim communities, whether in majority or minority contexts. While most states that incorporate parts of Islamic law into their legal systems, whether Muslim majority or not, are not liberal democracies, it may very well be that some judges in these states aspire to the ideals of political liberalism and desire to nudge their respective legal systems, even if only on the margins, toward a more politically liberal regime. At the same time, the judiciaries of jurisdictions that have not historically had large Muslim communities, such as Europe and North America (or if they did have Muslim communities, they did not recognize them as equal citizens), are increasingly coming into contact with Islamic law, either in situations where litigants themselves wish to have Islamic law apply to their disputes voluntarily, or by virtue of the rules of private international law (e.g., family law and commercial law), or where the state seeks to regulate some kind of behavior, and the Muslim target of the regulation wishes to avoid the regulation (e.g., controversies regarding appropriate dress at school, or the regulation of the slaughter of animals for consumption). Public reason–minded judges, whether in liberal regimes with relatively new Muslim populations, or in nonliberal regimes with well-established Muslim communities, might also believe that applying Islamic law in a manner consistent with political liberalism – if it can be done – can be a way to reduce religious-based tension within their own jurisdiction. This in turn could advance a broader liberalizing project or 24

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This would include, for example, ethnic Turkish Muslims in Greece, Muslims in India, and Muslims in Singapore, to name only a few. This needs to be qualified to the extent that many liberal states, such as Great Britain and France, governed large numbers of Muslims as subjects of their respective colonial empires, and in that capacity their judiciaries developed some experience with Islamic law. The British judiciary in colonial India, for example, developed a hybrid form of law called Anglo-Muhammadan law, which represented a blend of common law and Islamic law principles. See, e.g., A. A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Delhi: Oxford University Press, 1974). The French colonial rulers of Algeria also developed a codified version of Islamic law that they used to administer the family affairs of Algerian Muslims. O. Arabi, “Orienting the Gaze: Marcel Morand and the Codification of Le Droit Musulman Algérien,” in Studies in Modern Islamic Law and Jurisprudence (New York: Kluwer Law International, 2001), pp. 121–146.

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protect a previously consolidated liberal political culture from populist backlash, stemming, at least in part, from the recent migration of large numbers of Muslims to their societies. Accordingly, giving an account of the place of Islamic law in public adjudication from the perspective of public reason in nonideal theory is a pressing task. What the idea of public reason demands in nonideal settings is contextual and may very well differ depending on the nature of the issue at stake, and whether the issues arise in a constitutional democracy that reasonably approximates the principles of justice, in an authoritarian Muslim or non-Muslim state, or a democratic state governed by a constitutional rather than an overlapping consensus.26 In nonideal theory, this means that the application of the idea of public reason may vary in particular polities as a result of the unique constraints that face judges in the specific jurisdictions in which they operate. In all cases, however, the duty of a public reason–minded judge who is required to apply Islamic law is always the same: to seek to interpret Islamic law in a fashion that reconciles as far as possible its historical rules with the “criterion of reciprocity, viewed as applied between free and equal citizens, themselves seen as reasonable and rational,”27 and thus also with the political values of seeing citizens as free and equal. The public reason–minded judges should resist attempts to apply Islamic law merely on the grounds of its asserted revealed or metaphysical truth, or simply in its historical form without regard to the substantive demands of public reason. On the other hand, such a judge must also refrain from criticizing Islamic law on nonpolitical grounds, regardless of whether or not the judge is a believing Muslim. Cases involving Islamic law, like other cases, must be resolved in a political vocabulary and with reference to political conceptions of justice, while avoiding deeper doctrinal disagreements that separate citizens. This also means refraining from dismissing others as politically unreasonable because they have a different comprehensive doctrine and criticizing these doctrines as long as the political implications of their doctrines are reasonable or can be made to be reasonable if appropriately interpreted. This latter aspect of the idea of public reason is especially crucial in contemporary circumstances where the issue of Islamic doctrines has become a lightning rod for various antidemocratic and xenophobic movements across the globe. 26 27

Rawls, Political Liberalism, pp. 158–159. Rawls, “The Idea of Public Reason Revisited,” p. 774.

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When public reason–minded judges apply and interpret Islamic law, they must first determine the political content of the Islamic rule that is to be applied. If that political value can be applied consistently with public reason, the judge can do so without fear of violating the requirements of public reason. Judges must resist, however, any attempt to adopt a perspective internal to Islamic law that would claim to determine the “true” content of Islamic law as a matter of divine law. Such an effort would cause the judge to go beyond the political and enter the theological. One might object that even properly motivated judges are not capable of distinguishing Islamic law’s public reason–compatible political values from its theological or politically unreasonable (from the perspective of public reason) doctrines. It would be tempting, therefore, for a judge who has the discretion to give, or not give, effect to a rule of Islamic law to adopt an exclusionary strategy, and categorically refuse to give effect to any rule of Islamic law, on the theory that its rules are reflections of a metaphysically controversial doctrine and therefore should never be coercively enforced.28 Alternatively, when the positive legal order requires the judiciary to recognize Islamic law, the public reason–minded judge might conclude that he should interpret the jurisdictional terms authorizing or mandating the use of Islamic law narrowly, but when it does apply, he should assume that the rule reflects the nonpolitical values of religion, and so therefore refuse any call to adjust the historical norm, whatever the consequences may be for Muslim citizens of that particular state. Rawls’s notion of “reasoning from conjecture,” however, suggests another way forward. We reason by conjecture when we adopt the position of another party and then attempt to demonstrate that it can reasonably be made to be consistent with a reasonable political conception, despite an initial appearance of incongruence.29 While it would not be appropriate for a public reason–minded judge to conjecture about the ultimate, theological significance of a particular rule of Islamic law, that 28

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This categorical posture of noninterference has been adopted by some judges in other contexts involving the intersection of religious law and state law. See, e.g., Bruker v. Marcovitz, [2007] 3 S.C.R. 607, 2007 SCC 54 (Deschamps, dissenting). Rawls, “The Idea of Public Reason Revisited,” 783. For more on reasoning from conjecture and its relationship to public reason, see M. Schwartzman, “Reasoning from Conjecture: A Reply to Three Objections,” in T. Bailey and V. Gentile (eds.), Rawls and Religion (New York: Columbia University Press, 2014), pp. 152–169. For the use of conjecture in the particular context of Islamic law and liberal citizenship, see A. March, Islam and Liberal Citizenship: The Search for an Overlapping Consensus (New York: Oxford University Press, 2009).

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judge, having identified the political values vindicated by that rule, should engage in conjecture that seeks to specify how the political value embedded in that rule or case can be appropriately specified or adjusted so as to produce a politically reasonable outcome in the case before him. This more limited form of conjecture can be understood as a good faith attempt to extrapolate from a historical, nonpublic reason–conforming rule, a new rule that vindicates the political value embedded in the historical rule while respecting the strictures of public reason. Some might object that proceeding in this fashion imposes an unreasonably demanding task on judges. But as I shall argue in greater detail in the sections that follow, it is often the case that a judge can successfully identify the political values embedded in a particular rule of Islamic law (even if that requires the assistance of the parties’ counsel and outside experts). When such values are otherwise compatible with public reason, or may become so through extrapolation, the judge should not hesitate to give effect to those rules. I now turn to explain why Islamic law authorizes distinguishing between its political values and its theological claims, and thus enables the political method of conjectural extrapolation described in this section.

IV Islamic Law and the Distinction between the Theological/Metaphysical and the Political The central principle of legitimacy in political liberalism is that all exercises of coercive political power must be justifiable on the basis of political values that can be shared by all reasonable citizens, regardless of their particular comprehensive doctrines. When the political conception is supported by an overlapping consensus among reasonable comprehensive doctrines, citizens can see the political conception as internally supported from within their comprehensive doctrines, or not in conflict with it, or most plausibly, some combination of both.30 The fact that a comprehensive doctrine enshrines a certain rule or standard of conduct as representing a true conception of justice does not disqualify it from being legitimate from the perspective of public reason. But such a rule can only be recognized in public reason if it represents a reasonable balance of political values without regard to its metaphysical truth. In many cases it may be difficult for an external observer to disentangle a doctrine’s political values from its metaphysical ones, and attempts to 30

Rawls, Political Liberalism, pp. 147–148.

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do so might in fact radically distort that doctrine beyond what its own adherents could reasonably recognize. Yet, this is not the case with the Sunni Islamic tradition. This tradition reflects, quite self-consciously, a reasoned attempt to distinguish among its various substantive commitments and rank them according to an internal hierarchy of moral and ethical value. As I have argued elsewhere, this means that we are able, without much difficulty, to distinguish Sunni metaphysical doctrines from political commitments.31 That does not mean that historical Islamic political commitments are reasonable from the perspective of political liberalism; however, it does mean that an external observer is capable of reasonably distinguishing fundamental Islamic theological/ metaphysical commitments from merely political ones through a careful analysis of internal Muslim debates.32 Accordingly, public reason– minded judges need not fear that in adjudicating an issue of Islamic law, they are illegitimately, from the perspective of both Muslims and political liberals, entering the metaphysically contested terrain of truths internal to a comprehensive doctrine, rather than adjudicating political values. It is easy enough to find claims that Islam makes no distinction between political values and theological/metaphysical ones,33 but upon closer inspection, those claims really amount to no more than the recognition that Islam, as a comprehensive doctrine, aspires to provide its followers with an outlook on the entire range of possible human activities. From this perspective, there is no space for human action that is not potentially subject to some kind of moral regulation from the perspective of divine law.34 That aspiration, however, does not mean 31

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M. Fadel, “The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence, 12 1 (2008), 5–69. See M. Fadel, “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law,” Chicago Journal of International Law, 8 1 (2007), 1–20 (giving illustrations of how to resolve tensions between historical norms of Islamic law with public reason on political rather than metaphysical grounds). For purposes of this essay, I am using “Islamic political values” to refer to those rules found in historical Islamic law that were amenable to coercive enforcement, while my reference to “theological/metaphysical commitments” refers to doctrines that make truth claims about God, either with respect to God’s essence (theology) or to God’s command (theological ethics). Islamic ethics recognizes five ethical categories: the obligatory, the prohibited, the recommended, the disfavored, and the indifferent. The default ethical status of human actions, however, is indifference. Accordingly, the category of human actions that are governed by obligatory or prohibitive rules is limited.

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Muslims have historically believed that all rules of divine law have demanded public enforcement. Yet, there is another way in which an outside observer may be confused and conclude that Muslims fail to distinguish between the political and the theological/metaphysical, and that is the direct connection between political justice and divine law: Because a central tenet of Islamic theology is that God, at the end of time, will judge human beings for their actions, and hold those who have violated the rights of others accountable for their unjust acts, just and unjust political conduct have an incidental relationship to the metaphysical problem of salvation. For example, if A misappropriates property from B, A has not only committed a civil wrong giving rise to B’s right to restitution, A’s failure to return to B his property also constitutes a sin for which God will hold him accountable in the next life. The presence of divine judgment in the afterlife, however, means that Islamic jurisprudence prioritizes secular claims between and among human beings over God’s claims against human beings.35 There are other reasons to think that Islamic law distinguishes secular rules from religious ones. I shall briefly mention three structural features of Islamic law to support this conclusion. First, Islamic law is broadly divided into two parts: ritual law (ʿibādāt) and transactional law (muʿāmalāt). These two legal categories are distinguished from one another in fundamental ways. Ritual law, for example, requires the subjective intent to draw close to God (qurba) through performance of an act specified by the revealed law. Transactional law, on the other hand, even if mentioned in revealed texts, may also be derived through creative acts of human interpretation and human convention. This is because, in contrast to ritual law, laws governing human interactions disclose an inner rationality that is instrumentally related to particularly human ends, such as the protection and enhancement of property. These rules can be extended to new cases by virtue of the fact that they are subject to a legal cause (ʿilla), which the properly trained legal mind can extract from revealed texts after careful 35

Muslim theologians and jurists divide obligations into those that are owed to fellow human beings, and those that are owed to God. In many cases, obligations owed to God can be waived on the grounds that the true forum for their vindication is in the next life, while the claims of human beings, if they are not vindicated in this life, will never be vindicated. Accordingly, secular justice for humans is the primary mode of justice, while the just accounting of what we owe God takes place after we die. A. Emon, “Huqūq allāh ˙ Law and and Huqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime,” Islamic ˙ Society, 13 3 (2006), 325–391. See also A. Zysow, “Rights in Islamic Law,” in S. N. Katz (editor-in-chief) and B. Johansen (Islamic law ed.), The Oxford International Encyclopedia of Legal History (New York: Oxford University Press, 2009).

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consideration of both the words of revelation and the ends of the natural persons that are the subjects of divine law. Finally, and unlike the case with ritual law, the validity or invalidity of transactions is not dependent upon a subjective intent to draw near to God. In fact, the actor need not have any specific intent at all, religious or otherwise. Second, according to Muslim jurists, courts only have jurisdiction over disputes involving a secular interest (maslaha dunyāwiyya) between parti˙ whether ˙ cular individuals. They cannot determine specific acts of worship are valid or answer inquiries about the “true” content of divine law, the final resolution of which is a matter for the next life (maslaha ukhrāwiyya).36 ˙ theological/metaphy˙ Third, Islamic law also distinguishes between the sical and the political in connection with defining Islamic law’s jurisdictional limitations. The substantive obligations of Islam as a religion (e.g., prayer, fasting, charity, etc.) and its moral prohibitions (e.g., the prohibition against consumption of intoxicants, adultery, gambling, etc.) apply universally as a matter of divine law. These are matters for which, as a matter of Islamic theology, all humans must account themselves before God in the next life.37 However, the substantive rules of Islamic law (fiqh), particularly as a remedial system, only apply within a properly organized Islamic state to individuals having a rightful relationship with that state. Accordingly, Muslim jurists, and the Hanafis in particular, speak of the sources of the person’s inviolability as being a function of both common belief (dīn) and membership in a common polity (dār). Because of these different grounds for inviolability, non-Muslims could attain the political inviolability that a Muslim enjoys by virtue of entering into a pact with the Islamic state. Because such a pact is solely political, it is necessarily limited to the secular aspects of Islamic law. For that reason, the relationship of protection that regulates the relationship of non-Muslims to the Islamic state proceeds from the assumption that non-Muslims agree to abide by the provisions of Islamic law, but only such provisions that are secular in nature. This means that non-Muslims are not only exempt from Islamic ritual law, but that they are also exempt from Muslim rules that regulate marriage and divorce, among other things, insofar as these are understood to be matters that fall squarely within non-Muslims’ core religious commitments.38 36

37 38

S. al-Qarāfī, The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers, translated by M. Fadel (New Haven: Yale University Press, 2017), pp. 62, 65. Fadel, “The True, the Good, and the Reasonable,” 62, note 254. Ibid., 61–65.

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Because Islamic jurisprudence already distinguishes the theological/ metaphysical from the political and places the former outside the jurisdiction of courts, there is no reason for a court committed to public reason to assume, dogmatically, that any issue of interpretation involving Islamic law represents an interference in an Islamic theological debate. Yet, even if the rule of Islamic law in question is properly understood as reflecting a political value, and could therefore be viewed, at least in a prima facie sense, as consistent with public reason, the court might nevertheless fear that one of the Muslim litigants before it, or both, will see the court as enforcing a rule that necessarily includes resolution of a controversial theological question, even if only incidentally. One can then object that the court will necessarily interfere in a theological dispute between the litigants. Viewed from this perspective, whenever the court gives effect to one interpretation of Islamic law over another, it could be criticized as adjudicating a dispute on the basis of a rule that it knows is not reasonably acceptable to the other party.39 I will try to address this concern in the next section of this chapter.

V Does Application of Islamic Law Always Entail the Application of a Controversial Metaphysical Doctrine? The fundamental principle of legitimacy in political liberalism is that the coercive application of a rule can only by justified by appeal to reasons that one reasonably believes others will find reasonably acceptable. Accordingly, rules justified by appeal to controversial metaphysical doctrines cannot, consistent with this conception of legitimacy, be coercively applied. Islamic law has historically recognized a certain degree of normative pluralism, based on recognition that different jurists have approached the problem of understanding divine law in different ways. From the perspective of Islamic moral theology, these differences take place both at the level of judgment (e.g., one jurist holds that the correct rule is A, while another holds that the correct rule is B) and at the level of method (e.g., when one jurist recognizes one source or method of reasoning as a legitimate argument in support of a rule, while another rejects that method of reasoning).40 In light of this, one might take the position that 39

40

For a version of this argument, see A. A. an-Naʿim, Islam and the Secular State: Negotiating the Future of the Shariʿa (Cambridge: Harvard University Press, 2008). Fadel, “The True, the Good, and the Reasonable,” 43–50.

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a court motivated by public reason cannot apply a rule of Islamic law, even when the rule itself is consistent with the political values of public reason, because it will inevitably give effect to a metaphysically controversial position regarding the “true” content of divine law. In order to see why this argument is ultimately unpersuasive, it is useful to consider the logic of the overlapping consensus. The logic of the overlapping consensus is such that a particular value may, simultaneously, be part of a free-standing political conception and internal to, or at least acceptable to, a particular comprehensive doctrine. Indeed, doctrinal support from comprehensive doctrines is indispensable, at least for an important set of political values, if an overlapping consensus is ever to be achieved, and stability secured under the circumstances of reasonable pluralism. In order to achieve such an overlapping consensus, however, the coercive institutions of the state – in this case, the judiciary – must justify its decision on political grounds, not comprehensive ones. The connection between the political value affirmed in public reason and its grounding in a comprehensive doctrine therefore is to be made only by the citizen who subjectively recognizes that political value as internal to, or at least not in conflict with, his or her own comprehensive doctrine.41 This, however, invites the possible objection that if a judgment is justified only by reference to political values and not by reference to Islamic theological doctrines, it is not really Islamic at all. This objection is rooted in the mistaken assumption that the legitimacy of a judge’s decision in an Islamic system of adjudication depends on the extent that his judgment represents the true content of divine law in a particular case. In fact, while a ruling is not legitimate if it is not an Islamically reasonable understanding of divine law, the substantive theological reasonableness of a rule is not sufficient to make a judge’s ruling valid.42 A legitimate judicial decision also has to satisfy procedural requirements, including jurisdictional legitimacy, and rules of due process, including faithful adherence to the rules of evidence. If any of these procedural and jurisdictional prerequisites are not respected, the outcome would not be a valid judicial decision, even if the content of the decision is a reasonable or true reflection of divine law.43 Just as important, the content of the judicial ruling is seen as limited to the conflict between the parties themselves, which, as previously mentioned, is 41 42 43

Rawls, Political Liberalism, p. 11. Al-Qarāfī, The Criterion for Distinguishing Legal Opinions, p. 109. In such an event, the judge’s statement would be no more than a fatwa, an opinion about the content of divine law that lacks coercive force.

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limited to the secular interest at stake, for example, whether the true owner of blackacre is the plaintiff or the defendant. Accordingly, even where a judge rules, using a controversial rule of substantive or procedural law, or uses a controversial method for the derivation of divine law, the judge, according to Muslim jurists, is not determining what the true content of divine law is, or the proper method for its derivation; rather, the judge is simply making a rule that resolves, conclusively, for this life and the next, the secular dispute between the two parties (e.g., that blackacre belongs to A and not B). That rule, however, does not purport to be the true understanding of divine law.44 Likewise, even adjudication in a fully ideal Islamic state includes an important subjective element, namely the good faith of the parties themselves. Accordingly, a party is not morally entitled to act on a judgment if she either knowingly provides the court with false evidence or advances a theory of the law that she herself does not affirm.45 This means that the validity of a judicial verdict, even in ideal Islamic theory, is a result of a balance of factors, at least some of which are political and some of which are subjective. As is the case with Rawls’s theorization of the relationship between a comprehensive doctrine and an individual citizen’s relationship to political and legal rules, the ideal is that the political or legal rule is justified by a reason that is fully continuous with the individual’s comprehensive doctrine, yet mere noncontradiction suffices.46 Moreover, it is the responsibility of the individual citizen to determine the relationship of his own comprehensive doctrine to the public rule. From a practical perspective, a judge’s ruling in Sunni law is considered a reasonable interpretation of divine law if it is based on a rule of substantive law promulgated by one of the four Sunni law schools: Hanafi, Maliki, Shafiʿi, and Hanbali. This body of law, known as fiqh, represents the systematic conclusions provided by distinct traditions of legal thought to a broad set of paradigmatic legal questions. When a judge applies a rule found in one of these schools of law, he does not engage in 44

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Ibid., pp. 101–102 (a judge’s ruling in a controversial area of law preempts contrary views only with respect to that case) and pp. 109–110 (a judge’s ruling based on a controversial rule of evidence, or based on a rule derived using a controversial method of interpretation, does not amount to a judgment that such methods are valid). See B. Johansen, “Truth and Validity of the Qadi’s Judgment: A Legal Debate Among Muslim Sunnite Jurists from the Ninth to the Thirteenth Centuries,” Recht van de Islam, 14 (1997), 1–26; M. Fadel, “Forum, Exterior (Zahir), and Interior Forum (Batin),” in S. N. Katz (editor-in-chief) and B. Johansen (Islamic law ed.), The Oxford International Encyclopedia of Legal History (New York: Oxford University Press, 2009). Rawls, Political Liberalism, p. 11.

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an act of scriptural interpretation; rather, he adopts a conclusion derived from an attempt to organize the law into a science that strives for consistency, coherence, and predictability and therefore is not simply an exercise in scriptural interpretation. These positive doctrines incorporate numerous political values that are uncontroversially consistent with public reason.47 Were judges asked to engage in a free-wheeling interpretation of Muslim scripture in order to identify the true content of divine law, or to identify the rule of fiqh that represents the true conception of divine law, a public reason–minded judge would be right to object to doing so. But when a judge is asked to apply a rule of substantive law derived from the tradition of fiqh, however, he or she can do so simply by consulting the appropriate treatise explaining the particular rule and then determining whether it applies in the particular circumstance of the pending case, without making reference to scriptural references in the least. Nor should the fact that there are different conceptions of Islamic law give the judge pause: As long as the judge interprets these different doctrines from the political perspective of formal legal doctrine and does not make any theological claims, the judge cannot be reasonably accused of violating the strictures of public reason, either by interfering in the autonomy of religious doctrines or by coercively applying a controversial metaphysical doctrine. In such a case, as is true even in an ideal Islamic regime, it is the responsibility of the individual litigants to determine the connection between the rule applied by the judge and their own subjective understanding of divine law. Consider the following example. In Islamic law, a woman can obtain a divorce by payment of some property to her husband. This procedure is known as a khulʿ. According to Islamic law, a husband is not entitled to accept property in consideration for divorce unless, in fact, he has not violated the terms of the marriage contract. In circumstances where the husband has violated the contract and is either unable or unwilling to perform his obligations toward his wife, he is under a moral duty to dissolve the marriage pursuant to his unilateral power of divorce, talāq. ˙ 47

Fadel, “Principled Reconciliation,” 7–9. Islamic theology affirms an overlapping consensus with respect to many reasonable political values through its theory of the universal purposes of the law (al-maqāsid al-kulliyya), and the theological doctrine that divine law ˙ to the needs of the modal human being. See Fadel, “The is ideally constituted to respond True, the Good, and the Reasonable,” 54–57. See also S. Vasalou, The Theological Ethics of Ibn Taymiyya (New York: Oxford University Press, 2015), esp. Chapter 4, pp. 137–196, “The Aims of the Law and the Morality of God.”

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Where he fails to do so, the wife might be willing to pay him money in exchange for a divorce, even though she is entitled to a divorce without compensation. The jurists refer to such a woman as al-muʿd ala, one ˙ Malikis whose arm has been twisted into paying unjustly for a divorce. and Hanafis, while agreeing as a religious matter that it is sinful for a husband to extort property from his wife in exchange for a divorce, disagree whether such an agreement is enforceable as a valid contract. The Hanafis validate the contractual payment despite its immoral nature, while the Malikis view this contract as invalid and, if performed, authorize the wife to recover whatever property she paid her previous husband under a theory of unjust enrichment.48 The important point from the perspective of public reason, however, is that the dispute between the Hanafis and the Malikis in this case can be comprehended entirely using conventional legal categories such as duress, capacity, and unjust enrichment without invoking a metaphysical conception of divine law. The great twentieth-century Egyptian jurist ʿAbd al-Razzāq al-Sanhūrī bases his project of modernizing Islamic law on the premise that it is possible to distinguish systematically between Islamic jurisprudence conceived as a science, on the one hand, and Islamic jurisprudence as a part of dogmatic theology. Because he understands modern Islamic law to be a scientific – and not dogmatic – project, non-Muslim legal scholars are equal partners in discovering and elaborating the principles of Muslim legal science.49 To the extent we adopt Sanhūrī’s conception of modernized Islamic law, it gives even greater justification to believe that Islamic law, understood as an artifact of juristic reasoning and legal science rather than theology, can be legitimately used by a judge committed to principles of public reason. The next section discusses various contexts in which issues of Islamic law have presented themselves in courts from various jurisdictions. The results in each of these cases would have been more satisfactory had the

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M. Fadel, “Political Liberalism, Islamic Family Law, and Family Law Pluralism,” in J. A. Nichols (ed.), Marriage and Divorce in a Multicultural Context (Cambridge: Cambridge University Press, 2011), pp. 164–199, at p. 177. For more on Sanhūrī, see Hill, “Al-Sanhūrī and Islamic Law, Part I”; E. Hill, “Al-Sanhūrī and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ʿAbd al-Razzaq Ahmad al-Sanhuri, Egyptian Jurist and Scholar, Part II,” Arab Law Quarterly, 3 2 (1988), 182–214; A. Shalakany, “Between Identity and Distribution: Sanhūrī, Genealogy and the Will to Islamise,” Islamic Law and Society, 8 2 (2001), 201–244; and G. Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932–1949) (New York: Brill, 2007).

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court considered more carefully the relationship between Islamic law and the conception of public reason outlined in this chapter.

VI Islamic Law in Modern Courts Islamic law in modern legal systems appears in various political and constitutional regimes. As can be expected, Islamic law has greatest relevance in states with Muslim majorities. Within these states, however, there is great variation with respect to the roles that both Islamic law and political liberalism play in their regimes. At one extreme are regimes that explicitly claim to be perfectionist Islamic regimes, such as the Kingdom of Saudi Arabia and the Islamic Republic of Iran. At another extreme we have had Turkey, which, for much of the past century, was committed to a militant form of laicité with no place for Islamic law. Most Muslimmajority countries, however, lie between these extremes, with legal and constitutional systems that include at least nominal claims to both liberal and Islamic principles of legitimacy, with this hybridity resulting in political tension that may even be reflected in the state’s institutions.50 Islamic law also plays an important formal role in the legal systems of non-Muslim-majority states with substantial numbers of historical Muslim communities. These states include democratic states, such as Greece in the European Union,51 India, and Israel; “partly free” developed states, such as Singapore; and “partly free” developing states such as Kenya.52 In these cases, the continued salience of Islamic law is 50

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See, e.g., M. Fadel, “Judicial Institutions, the Legitimacy of Islamic State Law and Democratic Transition in Egypt: Can a Shift Toward a Common Law Model of Adjudication Improve the Prospects of a Successful Democratic Transition,” Journal of International Constitutional Law, 11 3 (2013), 646–665, 648–649 (discussing hybrid sources of legitimacy of the Egyptian state). Whether Islamic law will continue to have a formal role regulating the personal status of ethnic Turkish Muslims in Greece has been called into question in the wake of a law passed in 2018 allowing Turkish Greek citizens to have their family law disputes resolved in national courts as opposed to Islamic law courts. Christina Maza, “Muslims in Greece, Ruled by Sharia Law for Almost 100 Years, Can Now Go to Secular Courts,” Newsweek (January 11, 2018), available at www.newsweek.com/greece-muslims-sharia-law-secular -778434 (last viewed November 3, 2019), and the 2018 ECtHR decision, Molla Sali v. Greece (Appl. No. 20452/14) (Grand Chamber 2018) (affirming the right of a Greek Muslim citizen to dispose of his estate by testamentary disposition under general principles of Greek civil law in contravention of Islamic law’s limitation of testamentary freedom to one-third of the estate). I am borrowing the concept of “partly free” from Freedom House’s Freedom in the World 2018: Democracy in Crisis report, available at https://freedomhouse.org/report/freedomworld/freedom-world-2018 (last viewed November 3, 2019).

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a concession to historical Muslim communities permitting them a certain degree of self-governance, but it is usually limited to internal communal affairs, including, most prominently, family law. In liberal democracies, questions of Islamic law may arise in connection with private agreements that incorporate one or more provisions of Islamic law by virtue of the norms of private international law, which result in a court being forced to apply Islamic law to a case over which it has exercised jurisdiction, and also in cases of public regulation in which a Muslim citizen seeks an exemption, either from public law or from a condition of employment. Although the challenges arising from Islamic law for a public reason– minded judge differ in their particularities from jurisdiction to jurisdiction, the foregoing analysis suggests that in all cases, public reason counsels judges to proceed in the following manner: First, identify the political value implicit in the relevant historical doctrine; second, determine whether that political value is consistent with a reasonable political conception; and finally, if it is not, propose a new rule using reasonable conjecture and extrapolation from historical doctrines that vindicates both the Islamic political value and public reason.53 Courts, whether they are in a Muslim-majority jurisdiction, reviewing the exercise of self-determination rights of Muslim minorities, or courts in a liberal democratic regime reviewing issues arising out of Islamic law in private law or private international law, have sometimes approached questions of Islamic law as though they are theological/metaphysical questions that the court should answer, not only as if it were doing so from the internal perspective of Islamic law, but also as if it were qualified to answer the ultimate theological question at stake. This tendency to adopt a theological approach to Islamic law often stems from a reformist impulse that seeks to reconcile Islamic law with modernity or liberalism; nevertheless, there are good Islamic reasons, as well as reasons grounded in public reason, for a court, whenever possible, to refrain from proposing theological justifications for its interpretations of Islamic law and instead limit itself to more narrow political interpretations. Egyptian courts’ interpretation of Article 2 of the Egyptian constitution, which states that Islamic law is the principal source of legislation for the Egyptian state, reflects this pitfall. The Egyptian Supreme Court interprets Article 2 so that state legislation is always found to be in conformity with it so long as the legislation does not 53

March, Islam and Liberal Citizenship, p. 78, (proposing a similar approach to analyzing and reconciling historical Islamic doctrines with politically liberal positions).

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violate incontrovertible texts of revelation.54 Because the Egyptian Supreme Court has not articulated any positive understanding of the content of Islamic law, it retains for itself (and ultimately the Egyptian state) maximum interpretive flexibility in upholding the constitutionality of the state’s legislation.55 While this is helpful in allowing the Egyptian state to introduce legislation to bring Egypt into conformity with certain of its obligations under international human rights law, it does nothing to identify political values implicit in Islamic law that are aligned with the values of public reason.56 The Egyptian Supreme Constitutional Court’s conception of Islamic law in Article 2 effectively neuters it as a possible source of reasonable political values that could be of service in democratizing and liberalizing Egypt’s political sphere.57 The Indian Supreme Court has also interjected itself controversially in matters of Islamic family law. With almost 180 million Muslims, India has one of the largest Muslim populations in the world. Part of British colonial policy, continued by post-independence India, is to permit India’s various religious communities to exercise a certain degree of communal self-governance, and in the case of the Indian Muslim community, the right to govern family affairs, as well as matters related to inheritance and the administration of the law of trusts, in accordance 54

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C. B. Lombardi and N. J. Brown, “Do Constitutions Requiring Adherence to Shariʿa Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law,” American University International Law Review, 21 (2006), 379–435. Fadel, “Judicial Institutions,” 654–655. The case Minister of Health v. Badri, Supreme Administrative Court of Egypt, Case no. 5257 of Judicial Year 43 (December 28, 1997), is illustrative of the problems that arise from this approach. See Fadel, “Judicial Institutions,” 661–663 (criticizing it for recognizing the plaintiff’s standing in the case, despite the fact that the plaintiff was essentially seeking no more than a religious opinion as to the status of the practice of female circumcision under Islamic law). For a detailed discussion of this case, see K. Bälz, “Human Rights, the Rule of Law and the Construction of Tradition: The Egyptian Supreme Administrative Court and Female Circumcision (Appeal no. 5257/43, 28 December 1997),” in E. Cotran and M. Yamani (eds.), The Rule of Law in the Middle East and the Islamic World: Human Rights and the Judicial Process (New York: I. B. Tauris Publishers, 2000). For an argument explaining how premodern Islamic law could provide a basis for democratization in the Muslim world (if not for outright liberalism), see M. Fadel, “Islamic Law Reform: Between Reinterpretation and Democracy,” Yearbook of Islamic and Middle Eastern Law, 18 (2013–2015), 44–90 (arguing that Islamic law includes an implicit model of political legitimacy based on an ideal of representation derived from a model of politics taken from principal-agent law).

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with Islamic law.58 The Shah Bano59 case raised the issue of whether Section 125 of the Indian Code of Criminal Procedure, which punished an ex-husband of sufficient means who failed to maintain his indigent exwife until such time as she remarried, was consistent with Section 2 of the Muslim Personal Law Act. That statute guarantees that all questions of family law involving Muslims would be adjudicated pursuant to Islamic law. Section 125’s imposition of an ongoing obligation upon an exhusband to maintain an indigent ex-wife created a conflict between this provision and Islamic law, which relieves a husband of his obligation to maintain his wife once her divorce has become final. The Indian Supreme Court upheld the applicability of Section 125 despite the Muslim Personal Law Act; however, the backlash among the Indian Muslim community was so severe that the Indian parliament was forced to overturn the decision by statute, passing in its place The Muslim Women (Protection of Rights on Divorce) Act, 1986.60 That latter act of parliament in turn became the subject of vehement criticism.61 The practical effect of the Indian Supreme Court’s decision, and then parliament’s subsequent statutory repeal of the decision, was to harden sectarian divisions. The Indian Supreme Court’s reasoning was, from the perspective of public reason, both impermissibly theological and unnecessarily provocative in its open disdain for historical Islamic law.62 First, the court took it upon itself to determine the true position of the Koran with respect to the maintenance of ex-wives and concluded that, properly read, it 58

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The Muslim Personal Law (Shariat) Application Act (1937), available at https://indianka noon.org/doc/1325952/ (last viewed November 3, 2019). 1985 AIR 945, 1985 SCR (3) 844. Available at http://legislative.gov.in/sites/default/files/A1986-25_1.pdf (last viewed November 23, 2019). A. F. Shelke, “Revisiting ‘The Muslim Women (Protection of Rights on Divorce) Act, 1986,’ in Light of Its Impact Over Legal and Jurisprudential Principles,” Symbiosis Contemporary Law Journal, 2 1 (2014), 167–180 (“The piece of legislation remains the biggest mishap to secular democracy in India”); see also L. Carroll, “The Muslim Women (Protection of Rights on Divorce) Act 1986: A Retrogressive Precedent of Dubious Constitutionality,” Journal of the Indian Law Institute, 28 3 (1986), 364–376 (criticizing the Act, for among other things, poor drafting that will lead to unintended consequences, creating a bad precedent, and being unconstitutional). Other scholars, however, have argued that the statute had a positive effect on Muslim women in India. F. Agnes, “Shah Bano to Shabana Bano: The Many Small Victories for Muslim Women’s Rights,” The Indian Express (December 15, 2009), available at https://indianexpress.com/article/opi nion/columns/shah-bano-to-shabana-bano/ (last viewed November 22, 2019). M. Nussbaum, The Clash Within: Democracy, Religious Violence, and India’s Future (Cambridge: Harvard University Press, 2007), pp. 146–147.

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imposed on divorcing husbands an open-ended obligation to maintain their ex-wives until their remarriage, despite the absence of any Islamic legal authority for such a proposition.63 Second, the Indian Supreme Court accused Muslims of failing to understand the sources of their own religion properly, openly associated Islam with the degradation of women, and accused Muslims of upholding laws of divorce that were “ruthless in [their] inequality.”64 Finally, when the All India Muslim Personal Law Board pointed out to the court that Islamic law, which imposes responsibility for the economic needs of a divorced woman on her natal family, already provided adequate means to provide for indigent divorcées, the Indian Supreme Court casually and, in conclusory fashion, dismissed its suggestion as “a most unreasonable view of law as well as life.” The Shah Bano case’s tragic political consequences for India could have been easily averted had the Indian Supreme Court, instead of using the case as an opportunity to voice its displeasure with Islamic law, focused its analysis on the overlapping concern between the Indian state and Islamic law for the care of divorced women, and that the only disagreement was with respect to the most effective means to achieve that result: Should primary liability fall to the ex-husband or to the divorced woman’s natal family? Having reduced the dispute to one of conflicting, though reasonable, political judgments, the Indian Supreme Court could have pointed to a solution that neither called into question Indian Muslims’ commitment to state law nor the Indian state’s commitment to protecting Muslims’ right to self-governance in family law. By elevating the stakes of the case, the Indian Supreme Court needlessly transformed the dispute into one of sectarian versus national identity. Courts in liberal jurisdictions, such as the United States, Germany, and the European Court of Human Rights, meanwhile, have sometimes failed to understand the relevant rules of Islamic law that applied to the case before them or made sweeping, stereotyped, and reductive claims about the nature of Islamic law as a “religious law,” or done both. In what 63

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In reaching this conclusion, the Indian Supreme Court relied on al-Baqara, 2:241, which provides “for divorced women an honorable provision – an obligation upon the reverent.” S. H. Nasr, et al. (eds.), The Study Quran (New York: Harper One, 2015), p. 105. “There can be no greater authority on this question than the Holy Quran . . . Verse[] . . . 241 . . . of the Quran show[s] that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives . . . . These [verses] leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the Quran.”

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should have been a relatively simple breach of contract claim between two sophisticated commercial parties, a US district court offered an extremely implausible reading of the contract law of Saudi Arabia that resulted in the plaintiff receiving an extremely small award relative to what it would have received under ordinary principles of damages for breach of contract under the common law.65 The court lost its bearings primarily as a result of its decision to treat Islamic law as theological doctrine rather than as contract law. When a court’s deviates from public reason in a private commercial dispute, the injury to the political culture of a democracy is relatively limited. Yet, if a court errs in this fashion in the context of public law litigation, the results can be severe. The European Court of Human Rights’ jurisprudence with respect to Islam and Muslims has failed to respect the limits of public reason and to exercise restraint about Islam as a comprehensive doctrine. The result is that European Muslims enjoy substantially less religious freedom than other European religions.66 While many cases could be cited in support of this conclusion, the most egregious example of the Court’s failure to observe the restraint public reason requires in judges is found in the Welfare Party case.67 65

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National Group for Communications and Computers Ltd. v. Lucent Technologies International Inc., 331 F 2d 290 (D. New Jersey, 2004). Ronan McCrea, “Limitations on Religion in a Liberal Democratic Polity: Christianity and Islam in the Public Order of the European Union,” LSE Legal Studies Working Paper No. 18/2007 and Islamic Law and Law of the Muslim World Paper No. 08–09, University College London, February 6, 2008, available at https://papers.ssrn.com/sol3/papers.cfm? abstract_id=1033332 (last viewed November 3, 2019). Case of Refah Partisi (the Welfare Party) and Others v. Turkey (Appl. Nos. 41340/98, 41342/98, 41343/98 and 41344/98) (Grand Chamber 2003). In Refah and other cases involving Muslim human rights claimants, such as Dahlab and Ş ahin, the European Court of Human Rights formally adhered to the ordinary analytical framework for the adjudication of individual rights’ claims. It is indisputable, however, that the ECtHR’s reasoning in these cases went beyond the controversial application of an otherwise legitimate framework of legal analysis to include categorical statements about Islam as a religion and its relationship to democracy in a fashion completely unrelated to the particular facts and circumstances of each claimant. At times the ECtHR’s language suggested that it was Islam itself that was the subject of the litigation rather than the issue raised by the particular claimant. See, e.g., Dahlab v. Switzerland, Appl. No. 42393/98 (February 15, 2001) (rejecting the right of a female Muslim schoolteacher to wear a headscarf while teaching, and commenting in its opinion that the Islamic headscarf was a “powerful external symbol . . . that was hard to reconcile with the principle of gender equality,” and “that wearing the Islamic headscarf could not easily be reconciled with the message of tolerance, respect for others and, above all, equality and non-discrimination.”), and Layla Ş ahin v. Turkey, Appl. No. 4474/98 (November 10, 2005) (upholding Turkey’s decision to expel a female student from medical school who wore a headscarf, in part on the grounds that the

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There, the Court states that “[Islamic law] is fundamentally incompatible with democracy,” claiming that “[Islamic law] . . . faithfully reflects the dogmas and divine rules laid down by religion, [and therefore] is stable and invariable.”68 One scholar even notes, given the Court’s further claim that only democratic movements are fully protected under the European Convention of Human Rights,69 that the Court’s reasoning in Welfare Party could be read as allowing the prohibition of even the “peaceful advocacy of the tenets of Islam.”70

VII Conclusion Islamic law appears in court cases in jurisdictions that have radically different constitutional orders. Sometimes, Islamic law appears in nondemocratic Muslim-majority states, such as Egypt, which has formally adopted Islamic law as part of its legal system while simultaneously espousing commitments to democratic ideals. At other times, it appears in the form of a qualified right to self-rule given to a numerically large historical Muslim minority, as is the case in India. It also shows up in various circumstances in western liberal democracies which, although lacking large historical Muslim minorities, have witnessed a large increase in Muslim residents and citizens in the post–World War II era. Judges who are committed to the ideals of public reason might be reluctant to adjudicate cases that raise questions of Islamic law on the grounds that to do so would constitute illegitimate interference in religious doctrines, or it would amount to the coercive application of a controversial theological/metaphysical norm. I have argued that these concerns can be obviated to the extent that the judge, guided by the idea of public reason and armed with a good faith understanding of Islamic law as developed through the science of jurisprudence, is able to rely on the substantive political values vindicated by the rules of Islamic law and, where necessary, bring them into harmony with the content of public reason via reasoning by conjecture. The promise of public reason is that by focusing on political values and removing theological/metaphysical disputes from the domain of political discourse, it is possible for an

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Islamic headscarf potentially intimidated women who did not wear it, without any evidence that the claimant herself had threatened anyone). Ibid., § 123. Ibid., § 99. K. Boyle, “Human Rights, Religion and Democracy: The Refah Party Case,” Essex Human Rights Review, 1 (2014), 1–16, 12.

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overlapping consensus to emerge around a political and broadly liberal conception of justice. The all-too-common failure of courts to follow this course when it comes to adjudication involving Islamic law has predictably resulted in greater social division and conflict around Islamic law. By focusing on the political values implicit in Islamic law and attempting to reconcile them with the political values vindicated by public reason, courts can play an important role in reducing political and social conflict around Muslims, Islam, and Islamic law.

6 “We Hold These Truths to Be Self-Evident”: Constitutionalism, Public Reason, and Legitimate Authority ma ttias k umm

I Introduction: Setting Up the Question The following presents a rough sketch of a normative theory of constitutionalism that puts the idea of justifiability in terms of public reason at its center. Surprisingly, notwithstanding the considerable literature on the idea of public reason among political philosophers, legal and constitutional scholars have engaged with the idea relatively little.1 Yet, the idea of justifiability in terms of public reason as a condition for laws to claim legitimate authority lies at the heart of the liberal democratic constitutional tradition and provides a much more plausible account of the dominant features of global constitutional practice than competing accounts, or so I will argue. John Rawls was right when he described the apex courts in liberal constitutional democracies as “exemplars of public reason.” If, and to the extent they are, there is no worked out constitutional theory that accounts for that fact. The structure of the position to be developed here is reflected in the following six propositions: (1) Law makes a claim to legitimate authority. (2) Law, simply by virtue of being positively identifiable valid law, does not necessarily have the legitimate authority it claims to have. 1

Exceptions include Ronald Den Otter, “Constitutional Public Reason” in Judicial Review in an Age of Moral Pluralism (Cambridge: Cambridge University Press, 2009), 139–171; Lawrence B. Solum, “Public Legal Reason,” Virginia Law Review, 92 (2006), 1449–1501; Wilfrid Waluchow, “On the Neutrality of Charter Reasoning,” in Jordi Ferrer Beltran, Jose Juan Moreso and Diego M. Papayannis (eds.), Neutrality and Theory of Law (Netherlands: Springer, 2013), 203–224; and Mattias Kumm, “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review,” Law and Ethics of Human Rights, 4 (2010), 142–175. For critical engagement with the idea of courts as “exemplars of public reason,” see Jeremy Waldron, “Public Reason and ‘Justification’ in the Courtroom,” The Journal of Law, Philosophy, and Culture, 1 (2007), 107–134.

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(3) Whether law has the legitimate authority it claims to have depends on its justifiability in terms of public reason. (4) A core normative point of constitutions is to establish the conditions that ensure that positive laws meeting constitutional requirements have the authority they claim to have. Constitutions seek to flesh out and operationalize in more concrete, formal, procedural, and substantive terms what justifiability in terms of public reason amounts to. (5) The dominant structures of global constitutional practice in liberal constitutional democracies, with regard to foundational doctrines, basic institutional arrangements, and dominant interpretative approaches, are best explained and justified as exemplifying a public reason–based conception of constitutionalism. The sketch of the argument to be presented below takes propositions one and two for granted. Section II will contrast the idea of public reason– based constitutionalism with positivist – either conventionalist or voluntarist – conceptions of constitutionalism, in which there is only limited space for public reason. In Section III, the heart piece of the chapter, I will introduce a public reason–based conception of constitutionalism and discuss the core issues concerning propositions three, four, and five. Section IV will conclude with an interpretation of a puzzling clause of the second paragraph of the 1776 Declaration of Independence of the United States for the purpose of further clarifying the exact way that public reason–based constitutionalism is not only inclusive but also exclusive.

II Constitutional Positivism: Conventionalism and Democratic Voluntarism If we assume that a core normative point of constitutions is to establish the conditions that ensure that positive laws meeting constitutional requirements have the authority they claim to have, then what is it about constitutions that are supposed to ensure just that? Or, to ask that question slightly differently: If all law makes a claim to authority, and if constitutions are the supreme law of the land, what grounds their claim to supreme authority? Different conceptions of constitutionalism give different answers to that question. Before turning to a public reason– based account of constitutionalism, I will sketch the limited and circumscribed role of public reason within the two dominant positivist conceptions of constitutionalism: democratic voluntarism and conventionalism. While both conceptions are fundamentally flawed, I will not provide

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a critical normative assessment of either. Instead, it must suffice to analyze their structure to gain a better understanding of the conceptual space left for justification in terms of public reason as part of constitutional practice within such paradigms.

1 Democratic Voluntarism One prominent answer to what grounds the authority of constitutions is the idea of “We the People.” The will of “We the People,” acting as constituent power, is claimed to be the ground for constitutional authority.2 Debates about constitutional interpretation within this framework are understood as debates about how to understand the requirement of remaining faithful to the will of the people, which grounds a constitution’s authority.3 Here there is much space for disagreement. How should we imagine “We the People” in its relationship to constitutional practice?4 More specifically, did “We the People” act only once, when the Founders created the US Constitution? Or can “We the People” be construed as acting whenever – in the context of a phase of high-level constitutional contestation involving public debates, the political branches and the courts – a new constitutional settlement is eventually reached?5 Or should we understand and require that the will of “We the People” undergird the ordinary evolution of constitutional doctrine, requiring constitutional interpretation to follow widely and deeply held popular views?6 And even if we achieve consensus on these questions, how do we identify the content of the people’s will? Should the focus be 2 3

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See L’Abbé des Sieyes, Qu’est que ce le Tiers Etat (Paris 1789). There is also the preliminary question of how the exercise of constituent power should be structured in practice to best fulfill its function; see Andrew Arato, The Adventures of Constituent Power (Cambridge: Cambridge University Press, 2017). For a wide-ranging analysis of the conceptual and practical problems of constituent power as it relates to constitutionalism, see the contribution in Martin Loughlin, Neil Walker (eds.), The Paradoxes of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007). In classical Christian theology, the problem of God’s relationship to the world has a similar structure. Did he create the world in the beginning and then abandon it to function according to its own laws (the watchmaker model)? Or does God continue to intervene on certain extraordinary occasions by way of a miracle? Or is it the case that God is perpetually intervening and that the empirical laws of nature are merely the result of God’s perpetual will to uphold them (occasionalism)? See Bruce Ackerman, We the People, Vol. 1: Foundations (Cambridge: Harvard University Press, 1991). Such a position comes close to conventionalism; see Section II.2.

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on the original intentions of those drafting the document or the understanding of those who ratified it? Whatever the most plausible answer may be to these questions, they have in common that any answer will ultimately tie the right constitutional interpretation to the identification of a historically articulated will. However one conceives of such a quest in more specific terms, it is likely to be a largely factual inquiry, leaving little space for an independent role for public reason. There is one interpretation that exposes voluntarist accounts of constitutionalism to public reason to a considerable extent, at least prima facie: the argument that those enacting abstract rights provisions know they are enacting abstract principles. What ratifiers most plausibly wanted, it has been argued,7 is that these principles, in their original semantic meaning, should be authoritative, not the many concrete intentions and implications ratifiers might have, perhaps misguidedly, associated with it. Instead of tying contemporary constitutional interpreters of abstract principle to the historically parochial horizon of late eighteenth-century ratifiers, it would be more appropriate to see that those ratifiers willed other constitutional interpreters over time to reason about and improve on that understanding. In this way, moral reasoning about principle would be an important part of constitutional interpretation. Yet this argument is unlikely to persuade anyone committed to a voluntarist account of constitutionalism. If the grounds for constitutional authority are the will of the people, then the will of the people must be of paramount importance more generally. But if it is, how can one make sense of the idea that a relatively undemocratic institution such as a court should be in charge of concretizing and giving authoritative meaning to the majestic and wide-ranging generalities of a constitution, trumping even the determinations made by democratically legitimated legislatures? If courts are to play any such role at all, it must be a further restricted and specified role to be compatible with an overall commitment to a conception of democracy, in which the will of the people remains central. Perhaps the judicial function is to ensure the representation of certain minorities and keep open the channel of political change.8 Perhaps the constitutionalized rights reflect a particular commitment of the self7

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See, for example, Ronald Dworkin, “Originalism and Fidelity,” in Justice in Robes (Cambridge: Harvard University Press, 2006), 117–139 (distinguishing between semantic intentions, which fidelity requires be taken seriously, and political intentions, which are irrelevant. See also Jack Balkin, Living Originalism (Cambridge: Harvard University Press, 2011). See John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1981).

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governing community.9 But whatever the position might be, it must ultimately be made to fit the idea that the will of the people grounds all authority. Within such a conception of constitutional authority, there may be space for public reason with regard to specific clauses or within the context of specific doctrinal tests. But that space is likely to be marginal and unstable, always subject to be challenged in the name of democracy and the will of the people.

2 Conventionalism and “Living Tree” Constitutionalism According to a conventionalist position, what grounds the authority of constitutions is that they are recognized as having authority as a matter of fact by those over whom such authority is claimed, including relevant officials.10 If conventions are the grounds of constitutional authority, then in constitutional interpretation, too, any role for public reason will be limited and narrowly circumscribed by conventionalist concerns.11 Even when constitutional norms are too indeterminate to generate shared determinate meaning in a concrete case, as is typically the case with regard to the abstract clauses that guarantee basic rights, the existence of conventional understandings and practices would provide authoritative guidance and constraints on judicial interpretation. To illustrate the point: Assume we want to know whether it is a violation of the constitutionally guaranteed right to equality that, according to state laws, marriage is restricted to heterosexual couples only, thus excluding gays and lesbians. The text of a constitutional provision, say in the form of a general right to equality, is unlikely to provide much guidance. Instead, a great deal of justificatory work is necessary to assess whether equality, as it relates to marriage, is in fact compatible with the exclusion of gay couples. The problem is, of course, that issues of 9

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See Jed Rubenfeld, Freedom and Time (New Haven: Yale University Press, 2001) and Lawrence Lessig, “Fidelity in Translation,” Texas Law Review, 71 (1993), 1165–1268. Note how in the most influential modern positivist theory the fact that relevant officials recognize a constitution as the supreme law of the land merely establishes its status as the highest-ranking legally valid norm, not its actual moral authority; see H. L. A. Hart, The Concept of Law (2nd ed.), (Oxford: Clarendon Press,1994). Only if positivist jurisprudential theories are recast as theories relating to the moral grounds of law is it possible to connect some core features of positivism with conventionalism as a moral theory. For a discussion of legal conventionalism, see Andrei Marmor, Interpretation and Legal Theory (Oxford: Hart, 2005). On the connection between grounds of law and legal interpretation, see Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986).

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principle such as these are often highly disputed. If there is real disagreement over an issue, even one framed as an issue of abstract constitutional principle, and the law provides no authoritative guidance as to how to resolve this disagreement, to what extent and why should courts rather than legislatures have the authority to settle them? This is an issue central to modern constitutional practice that includes highly abstract rights provisions and establishes courts with the jurisdiction to enforce them. All constitutional theories worth their mettle need to have a plausible answer to it. For a conventionalist the problem of disagreement as it relates to the judicial role in interpreting constitutional principle is largely mitigated if not resolved by reference to conventions. How exactly conventions matter, which conventions matter, and whether and to what extent they exclude reference to general moral argument may be subject to controversy.12 But notwithstanding differences between different positions, conventionalists agree that courts should recognize only those rights, which are solidly grounded in or can be seen to fit with prevailing practices or at least endorsed by existing tendencies and trends. On the one hand, conventions can be established in the form of judicial precedent or other forms of explicit constitutional recognition. If an issue can be shown to be sufficiently closely linked to legally settled positions and justifications, then that provides the preconditions for also accepting a new norm as constitutionally required, if there are otherwise good reasons for doing so. On the other hand, existing social and ordinary legal conventions and practices may also support and help authorize a court to recognize something as a matter of constitutional right. Within a conventionalist framework it makes sense, for example, that the European Court of Human Rights is likely to recognize as rights only propositions that already reflect a widespread European consensus reflected in national legal practice across jurisdictions, although in some cases it suffices for the court to establish a dynamic tendency in 12

Dworkin’s early and middle periods – which includes Law’s Empire and his account of “law as integrity” – remain, contrary to Dworkin’s own characterization, conventionalist in the relevant sense. Interpretation may be a matter of morality, but it is law’s morality, constituted and constrained by the criteria of “fit,” that is connected to what has been historically accepted and what can be made sense of as part of a chain novel. Only the late Dworkin sheds his foundationally historicist, conventionalist assumptions; see Ronald Dworkin, “Law” in Justice for Hedgehogs (Cambridge: Harvard University Press, 2011), 400–415. The late Dworkin may plausibly be reconstructed as embracing a public reason–based understanding of constitutionalism, which is discussed further in Section III.

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the evolution in the direction of such a consensus.13 And when the US Supreme Court faced the issue of gay marriage14 and ended up recognizing such a right, it did so not without mentioning that such a right had been accepted in the majority of states, either by courts, legislatures, or referenda.15 In that sense courts as interpreters of rights within a conventionalist mindset are authorized to formally ratify existing majoritarian conventions or endorse general evolutionary tendencies as constitutional requirements. But whatever role might be left for public reason as part of constitutional interpretation, it is grounded in and limited by recognized conventions.

III A Public Reason–Based Conception of Constitutionalism If a core normative point of constitutions is to establish the conditions that ensure that positive laws meeting constitutional requirements actually have the authority they claim to have, and if law actually has the legitimate authority it claims to have only if it is justifiable in terms of public reason, what follows? How can we make sense of constitutions in this context, and what kind of constitutional practice would that give rise to? In the following I will first clarify some core features connected to the idea of justifiability in terms of public reason as it becomes relevant for the construction of a public reason–based constitutional theory (1), before then spelling out the basic contours of such a theory (2).

1 The Idea of Justifiability in Terms of Public Reason: Three Core Ideas For the purpose of constructing a constitutional theory, there are three core features central to the idea of justifiability in terms of public reason, without which it would not be possible to understand what is distinctive 13

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More specifically, the idea of a “European consensus” operates as a criterion for the degree to which the court will recognize a “margin of appreciation” for state institutions when they interfere within the scope of a right. The more a consensus there is, the harder the court will scrutinize a state’s deviance from that consensus. The less of a consensus there is, the lower the level of judicial scrutiny of state decisions. For an overview of the issues raised by such an approach, see Panos Kapotas and Vassilis P. Tzevelekos (eds.), Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond (Cambridge: Cambridge University Press, 2019). Obergefell v. Hodges 135 S. Ct. 2534 (2015). Only thirteen of the fifty US states prohibited gay marriage at the time the case was decided.

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about the idea. All these ideas are familiar, but I will on occasion give them a distinctive interpretation and take a position in debates relating to public reason.

a The Fundamental Status of Free and Equal Persons Those to whom justification is owed because they are subject to the jurisdiction of a law claiming authority over them are imagined as having the fundamental status of free and equal persons. For purposes of law and politics, this is how we fundamentally should regard each other: As fellow free and equal persons, who, in virtue of the fact that we live under the jurisdiction of the same laws, are members of a justificatory community. What defines our status, then, is not our faith, ethnicity, race, cultural heritage, gender, or sexual orientation, even if, as free and equals, we recognize being members of communities in which there are many, including perhaps you and me, for whom markers such as these define identities and structure lives. But as justificatory agents and as persons making demands for justification, interacting with others in the political and legal realm, we act and make demands as free and equals who happen to be Catholic, Muslim, Jewish, atheist, black, white, Hispanic, straight, gay, queer, or anything else. We have no right to demand positive affirmation for the substance of the choices and identities that make us who we are by public officials or fellow citizens in public life. Nor is it a requirement that pluralism and multiculturalism be celebrated as a wonderful mutually enriching thing in public life. It may indeed be something enriching for some, perhaps for many. But for others it may also just be hard work requiring adjustment to a brave new world in which old familiarities are lost due to cultural, technological, and demographic change. Debates about multiculturalism and its desirability may have their place, because, at the margins, they are policy relevant. But these debates should not cloud the core point: Irrespective of what someone might think about multiculturalism, whether they think it is a good thing or a bad thing: Every person is required to recognize others as being persons with the right to make the choices that are theirs to make and as having the identities they are free to have. Like the results or not, a person’s status as free and equal, and the choices that such a person is free to make, demands recognition, regardless of the assessment of the decision you – or I – would believe to have good reasons to make.

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b The Fact of Reasonable Disagreement Among free and equals we recognize that it is not a symptom of decadence or bad faith, but simply part of the condition of politics that we, as reasonable persons, should not expect to agree either on what gives meaning to our lives or how we should live it (questions relating to “the good”), nor should we expect to agree on exactly what justice requires and what we owe to each other.16 The fact of reasonable disagreement across these two domains leads to different, but in each case constitutionally fundamental, conclusions. First, questions relating to the good are deemed to be justificatorily offlimits. They are excluded as legitimate reasons justifying the imposition of burdens on anyone. What exactly that implies cannot be fleshed out here, but it is closely connected to the traditional idea of the ethical neutrality of the state. Note how this ethical neutrality is primarily justificatory neutrality, not neutrality of effect (that would be impossible to achieve). It means that justifications offered by public authorities must abstain from judgments about the merits of ethical decisions, decisions relating to the good. It may not be an easy question whether or not Italy was violating the rights of non-Christians when requiring that crucifixes be hung in all public school classrooms.17 But it was uncontroversial that had official public justification insisted on the truth of the Christian faith and the positive effects of having children being socialized in that true faith, it would not have been a plausible justification for these policies. Of course, this was not the argument put forward by the Italian government; and not surprisingly, such a justification was so beyond the pale that it was not even discussed. Equally beyond the pale would be a counter assertion by an atheist rights-claimer that crosses be taken off the wall of 16

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While John Rawls famously focuses on reasonable disagreement with regard to the good and the existence of competing and incompatible but equally reasonable conceptions of justice, he establishes no constructive symmetry between these domains, even though he acknowledges the various conceptions of justice in his later works. For a discussion of the problem of disagreement about justice, see Chapter 4 in this volume, and Silje A. Langvatn, Legitimate but Unjust, Unjust but Legitimate, Philosophy and Social Criticism, 42 (2015), 132–153. In Lautsi v. Italy, the European Court of Human Rights upheld the Italian regulation on the grounds that such a measure is a justifiable restriction of the negative right of nonChristians that they not be subjected to being taught in a classroom with Christian symbols. Such a measure can be conceived as the majority making use of their positive right to exercise freedom of religion within the context of a general culture of pluralism and tolerance that makes such an imposition proportionate in light of its legitimate purpose.

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public schools, because religion is merely a form of pernicious superstition, the “opium for the masses,” that enlightened citizens should be emancipated from. Under conditions of reasonable disagreement among free and equals, questions such as the nature of the true faith, are questions that individuals work out for themselves.18 Public authorities do not have the jurisdiction to make authoritative judgments on this and build those judgments into the justification of coercive laws. Doing so violates a requirement of public reason. Second, questions of justice among free and equals are also subject to reasonable disagreement. How do we circumscribe the liberty of one to ensure that it is compatible with the equal liberty of others? What does that mean with regard to the exact legal norms governing, say, contracts or torts, family law or real estate law? What does it mean in the context of regulating restaurants, hospitals, or banks? And when we raise money through taxation to pay for public services, what does a commitment to equality mean with regard to the structure of progressive income tax, or the relationship between taxes on income, taxes on capital, or taxes on inheritance? Clearly these are questions that cannot be off-limits for public authorities to decide. These are exactly the kind of questions that are required to be decided authoritatively by public institutions. The point of justice is to determine what it is that we owe to each other, what we can claim from each other. It is an issue that requires institutional settlement. Only once we settle our reasonable disagreement by way of legislation do we know what is to count as just among us. Indeed, this is the core point of positive rulemaking by public authorities: to reasonably settle contentious questions of what we owe to each other and what rights, as free and equals, we have, when all has been considered and weighed. Only once it is understood that we can reasonably disagree about questions of justice does the distinctive point of justification in terms of public reason become apparent. When we assess whether a legal norm is justifiable in terms of public reason, we do not seek to establish whether it is just. True, all just norms are norms that are justifiable in terms of public reason. But not all norms that are justifiable in terms of public reason are just. Justifiability in terms of public reason defines the boundaries of the

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They work this out not as “atomistic individuals” as communitarian critics of liberalism like to assert, but as individuals situated and engaged with and in their respective social and cultural contexts.

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reasonable in contexts of disagreements about what justice requires. It defines a standard of legitimacy, not of justice.

c Clarifying the Formula: Justifiability in Terms of Public Reason (1) Substance and Procedure If a core task of public institutions is to settle reasonable disagreement as to what counts as just among us, then any such settlement needs to meet two requirements to be justified. First, the result of the settlement itself must be justifiable to everyone over whom the settlement claims authority. In that sense the decision must meet a substantive reasonableness test. But it is not clear why anyone subjected to a norm should accept its authority just because it is reasonable. If you happen to rightly believe that it is wrong, even if reasonable, why should you accept a settlement that, in your eyes, falls short? This is the point where, second, the procedural requirement comes in: Reasonable (although not necessarily just or correct) settlements of justice claims are justified if the procedure used to settle them meets standards of justifiability. Only if the procedure used is a reasonable interpretation about what procedural justice requires with regard to decisions of that kind among and free and equals, is it a procedure that can result in authoritative settlements? For different kinds of decisions, different kinds of procedures will be required. For certain issues, for example those relating to war and peace, or other aspects of basic justice (tax legislation, criminal law, etc.), it would generally be unreasonable not to demand a decision by a properly constituted democratic legislature. For other, more technocratic decisions, a reasonably structured, adequately participatory administrative process may be sufficient. And for other, individualized decisions an adequately structured judicial process, involving being heard by an impartial and independent judge, will be required. Note that it is not required that procedurally perfect justice be done because, just as with regard to substantive decisions, there is going to be reasonable disagreement about what perfect procedural justice requires. Instead, the procedure used must reflect a reasonable settlement of contested questions of what procedural justice among free and equals requires. (2)

The Scope of the Justification Requirement: The Micro-Macro Problem Rawls limits the requirements of public reason to questions of basic justice and constitutional essentials. The core idea is that if basic justice and constitutional essentials are in place, then legitimacy of everything

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that is justified under a constitution would be legitimate. But of course, it is not at all obvious why that should be the case. Why would the existence of legitimate macrostructures provide legitimate cover for clear and obvious violations of justice on a micro level, even when they do not concern whatever qualifies as “basic justice”? Say a police officer stops you because one of the brake lights of your vehicle is not working. Assume further that because you are in a hurry and generally in a bad mood, you do not respond kindly to the police officer stopping you. Although generally cooperative, you clearly hint that you have better things to do. Imagine that the police officer, himself not having a good day, is annoyed with you and, to put you in your place, asks you to get out of the vehicle to pat you down; as you protest, he takes out a taser and threatens you with it. You unwisely decide to lecture him on potential criminal sanctions implicated by certain forms of abuse of authority, at which point he uses the taser on you. Now assume that, deus ex machina, you would somehow be able to extract yourself from that situation by pushing the police officer away from you and speeding off, never to be found. In real life this is neither advisable nor realistic, but as a matter of principle, would you have committed a wrong by not complying with the instructions of the abusive police officer claiming to act under the authority of the law? Assume that realistically you would not have had any effective legal remedies available to you against the abusive officer, notwithstanding basic justice and constitutional essentials in place. It is not clear on what grounds the orders of such an obviously abusive police officer could plausibly claim legitimate authority. What this example suggests is that legitimate macrostructures are insufficient to assure the legitimate authority of micro actions. The micro actions themselves have to be susceptible to a reasonable justification to make plausible claims of authority. Your strategy of extricating yourself from the situation may be audacious and dangerous, but it does not constitute a failure to recognize legitimate claims of authority over you. Abusive orders of a police officer in this kind of context cannot plausibly claim authority over anyone. Note how the inverse appears to be also true. Reasonably justifiable microstructures do not overcome the corrupting effect of illegitimate macrostructures. Imagine a micro practice that is perfectly reasonable, say the general structure of the tax system as it applies to you, a good Aryan living in Nazi Germany in the early 1940s. It turns out that the whole system is geared toward financing a totalitarian dictatorship engaging in a global war of domination, furthering Aryan racial supremacy, and

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committing genocidal annihilation. Is it plausible to say that you are obligated to pay taxes to the regime if you lived in Germany at the time, even if you yourself are treated decently? The answer to this question is a clear “no.” There is no obligation to fulfill what Nazi authorities will claim are your legal duties under the circumstances. The reasonableness of the tax code is corrupted by the larger political structure of which it is a part.19 What both examples appear to suggest, at least prima facie, is that the micro and macro level must always be complementary. There are no plausible grounds for focusing on the reasonableness of the micro situation without taking into account the larger context, just as it is implausible to believe that successful justification of macrostructures trickles down to legitimate unreasonable transgressions on the micro level. Justifiability in terms of public reason is a requirement that encapsulates both levels. The substantive reasonableness of a micro regime is not sufficient to justify its legitimate authority. Nor can the reasonableness of a macro regime justify all the laws and acts of authorities under it.

(3) What Is the Correct Standard? What Everyone Might Reasonably Accept vs. What Everyone Cannot Reasonably Reject Is it necessary that those over whom a norm claims authority might reasonably accept such a norm as free and equals? Or must it be the case that the norm cannot be reasonably rejected by them? It is a widely held view that there is an asymmetry between these formulations. We might reasonably accept more than we could not reasonably reject.20 I propose to resolve the issue by distinguishing between two different standards of justification. Once we connect each of these formulations to the correct standard, they 19

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Here is a further complexity: Imagine, still in Nazi Germany in the early 1940s, you hire a craftsperson to paint and refurbish your home. Assume further that the private law governing these kinds of contractual relationships is generally reasonable, notwithstanding extremely unjust exceptions with regard to “enemies of the state,” which include Jews, gays and lesbians, communists, and socialists, who are unable to enforce contractual obligations against Aryans. Is the deeply corrupted macro context sufficient grounds not to honor your contractual obligations to the craftsperson? Probably not. Here, the reason why the macro context does not corrupt the micro context is the relative independence of the micro context from the macro context, both personally and economically. But assume you pay the craftsperson off the books, so that you get a better price and they save money on taxes. This would probably not constitute a violation of any moral obligations with regard to the law, given the illegitimate macrostructures. Tom Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991), 36; T. M. Scanlon, What We Owe to Each Other (Cambridge: Harvard University Press, 2000), 137–138.

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are in fact complementary. If a legal norm claiming authority over a person is such that it might reasonably be accepted as just by everyone, even those most burdened by it, then such a norm cannot be reasonably rejected by an addressee as illegitimate. If the process of settling reasonable disagreement has led to a norm that we can understand as a good faith attempt to treat even those most burdened by it as free and equal partners in a common justice-oriented project, rather than as a person dominated by factual power relations, then that fact is sufficient to establish that a person cannot reasonably reject such a settlement as illegitimate.21

2 The Double Function of Constitutions Under a public reason–based understanding of constitutionalism, the constituent power of “We the People” is not the power to create the positive legal world out of nothing. Instead, the constituent power is the normatively circumscribed power of free and equals to establish a charter of individual and collective self-government among them, the point of which is to ensure that positive laws meeting constitutional requirements actually have the authority they claim to have. Since this is only the case if positive laws, both in terms of the procedures used to generate them and their substance, are justifiable in terms of public reason, such a constitution needs to serve a double function. First, a reasonable macro framework of institutions and procedures needs to be created. The institutions established by the constitution, the legislature, the executive, and the judiciary and the delimitation of competences between them reflecting a plausible version of the separation of powers must be justifiable as a reasonable specification of ideas of procedural justice as it applies to free and equals. In that sense, constitutions setting up institutional arrangements and procedures settle reasonable disagreements about what is to count as procedurally just among us. What this means in greater detail cannot be described here, but the establishment of a democratic legislature, the make-up of which is the result of free and open elections based on an equal right to vote, is among the necessary features. Second, the constitution must also establish the relevant substantive standards for justifiability in terms of public reason. But note this: With regard to this function, constitutions should not be thought of as settling 21

This is a clarification of the position first articulated in Mattias Kumm, “The Idea of Socratic Contestation,” 141.

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issues of justice over which there is reasonable disagreement. Reasonable disagreement about what justice requires is generally to be settled by democratic processes, not by the constitution. The point of constitutional substantive standards is to define the boundaries of the reasonable: If a legislature has produced a specific result that is then struck down on constitutional rights grounds, the claim is that the legislature failed in its task to settle reasonable disagreements about what justice requires. The failure lies not in failing to pick out the just solution. That would be too much to ask and is not for judges to authoritatively pronounce themselves on. The failure lies in picking a solution that is not reasonably susceptible to a justification in terms of public reason. Only when the solution enacted falls outside the boundaries of the reasonable should it not count as a legitimate settlement claiming authority of law. Recall that Rawls claims that constitutions, to ensure legitimacy, have to guarantee basic justice. There are two ways in which this formulation points in the wrong direction. First, as the discussion of the micro-macro problem has shown, basic justice is not enough to ensure legitimacy. The scope of constitutional requirements has to extend to those domains not plausibly described as basic. Second, the relevant standard is not justice but reasonableness. Constitutions seek to ferret out unreasonable results. Of course, unreasonable attempts to settle competing claims of justice are themselves unjust, but saying that the settlement is unreasonable qualifies that injustice in a way that is decisive for legitimate claims to authority. In a world where reasonable disagreement about what justice requires is part of the circumstances of politics; the fact that one can reasonably claim that an act of public authority is unjust does not yet delegitimize that act. Only when we can show it to be unreasonable does it undermine its claim to authority. The point of judicially enforceable constitutional rights is to define boundaries of the reasonable, not of justice.

3 Implications for Constitutional Practice a General Features of Constitutional Reasoning If the point of constitutions is to establish relevant standards ensuring the justifiability of acts of public authorities in terms of public reason, and the original constituent power of “We the People” is the power to do just that, then a constitutional text should be interpreted to reflect that purpose. With regard to the structural provisions of the constitution, this means that they should be interpreted so that they can be understood as

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a reasonable attempt to settle and define in concrete terms what procedural justice amounts to here and now for us. And with regard to the substantive requirements, constitutionalized as rights guarantees, these should be interpreted in light of their function to ferret out acts of public authorities that are not susceptible to a reasonable justification. But what would that mean more concretely?

b On the Scope and Structure of Rights Adjudication If constitutional rights are to fulfill the function of ascertaining acts of public authority that would not be susceptible to justifications in terms of public reason, what would the scope and structure of human rights practice look like?22 On the one hand, rights might take the form of rulelike red lines that constitutionally define what is unreasonable and could therefore not claim legitimate authority. Rights might explicitly prohibit torture or the death penalty, for example, or require someone not to be put in jail without seeing a judge for more than twenty-four hours. But more often than not, rights provisions in modern constitutional texts are more abstract, merely stating principles on a relatively high level of abstraction. What principles would need to be included? What is the scope of rights? How would courts determine whether a principle has been violated? How would such an inquiry be structured? Concerning its scope, it would be necessary for rights to be invocable whenever someone is burdened by acts of public authorities in a nontrivial way. Once someone is burdened by an act of public authority, they would then have the possibility to go to an impartial and independent tribunal to have it assess whether imposing such a burden on the rights claimant is in fact justifiable to her given her status as a rightsbearing free and equal. To make that possible, a constitution would do well to recognize a general right to liberty as well as a general right to equality.23 Even if there is no such right explicitly recognized in the text of the constitution, a court would be right to interpret very broadly whatever more specific provisions there may be. Having an act of public authority infringe on the scope of the right does not, of course, end the rights inquiry; it merely triggers the question of whether the infringing act is justified. For the legal justification to mirror the 22

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For a more extensive discussion, see Mattias Kumm, “The Turn to Justification: On the Structure and Domain of Human Rights Practice,” in Adam Etinson (ed.), Human Rights: Political or Moral (Oxford: Oxford University Press, 2018). For a such a claim, see Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002).

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requirement of justifiability in terms of public reason, it would be important that the justification not be undermined by legal technicalities,24 while nonetheless providing judges with a workable structure for framing the inquiry. The proportionality test is just such a structure.25 It provides a set of four questions, which, taken together, provide the individually necessary and collectively sufficient conditions for an act to be substantively justifiable in terms of public reason. The first question asks whether the legal act in question furthers a legitimate purpose, and the second asks whether taking such an act is necessary, in that there was no other equally effective but less rights-restrictive measure available to further that legitimate purpose. The third and final question concerns whether, on balance, the degree to which the measure furthers the legitimate purpose justifies the degree to which the right is infringed, or whether it burdens the rights bearer disproportionately. The proportionality test as a core structural feature of rights adjudication allows courts to effectively assess whether acts of public authorities can be justified to those burdened by them in terms of public reason. If the scope of rights is as expansive as this and the structure of rights permits courts to assess the justifiability of an act in terms of public reason, then this would clearly validate Rawls’s claim that we should think of apex courts as exemplars of public reason. But it does appear, at least on first sight, to raise the concern of juristocracy. Why is it not presumptuous and undemocratic for courts to serve as final arbiters on questions that are subject to reasonable disagreement? A careful reader of this text will know the answer to that question. Courts are not in the business of settling reasonable disagreement. That is left for other, more democratically legitimated political institutions. But courts are in the business of ensuring that the political branches succeed in their task of settling such disagreements within the bounds of reasonableness. Courts never ask whether political institutions have found the best, the most just, fairest, or most efficient solution to a problem. But if the results of the political process produce legislation that is not demonstratively justifiable in terms of public reason, then the issue is not the undemocratic 24

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On this issue, see Jeremy Waldron, “Judges as Moral Reasoners,” Journal of International Constitutional Law, 7 (2009), 2–24. Classics include Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), Aharon Barak, Proportionality (Cambridge: Cambridge University Press, 2012), Alec Stone Sweet and Jud Mathews. “Proportionality Balancing and Global Constitutionalism” Columbia Journal of Transnational Law, 47 (2008), 68–149. For a recent discussion, see Mark Tushnet and Vicki Jackson (eds.), Proportionality: New Frontiers, New Challenges (Cambridge: Cambridge University Press, 2017).

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intervention of judges. The question becomes why such an act could conceivably claim authority over free and equals in the first place.

c Unconstitutional Constitutional Norms Finally, it may be useful to point to another feature of a public reason–based conception of constitutionalism. If even the original constituent power of “We the People” is not unlimited but understood as the power to establish a charter of self-government of free and equals that defines the conditions under which acts of public authorities may rightly claim legitimate authority, then there is nothing puzzling about the idea of unconstitutional constitutional norms. Two features widespread in contemporary constitutional practice come into normative focus and are rendered plausible. First, it is perfectly plausible to explicitly write into constitutions some basic principles connected to the core of the constitutionalist project and to insist that they are unamendable. These are often commitments to human rights, democracy, and the rule of law, or to liberal constitutional democracy and the like. But even if there are no such explicitly textually fixed norms, constitutional norms incompatible with the basic point of constitutionalism cannot claim legal validity. In that sense, the constitutional entrenchment of unamendable norms is often of declaratory significance only.26 Unconstitutional constitutional norms are norms formally enacted as constitutional norms that cannot reasonably be understood as making a contribution or may even be inimical to the constitutionalist project properly conceived. If, for example, a constitution is amended in a way that effectively abolishes multiparty democracy in favor of entrenching the power of a dominant party, then there are no good normative grounds for accepting such an amendment as valid law, even if enacted following reasonable procedures for constitutional amendments laid down in the constitution. Furthermore, it is not only unconstitutional constitutional amendments that may be invalid. If an original act of constituent power includes a constitutional norm that cannot be understood as a reasonable attempt to specify the condition for legitimate authority to be recognized among free and equals, then it may turn out to be ultra vires and as such partially invalid.27 Within the normative framework of a public reason–based conception of constitutionalism, legal doctrines 26

27

When constitutional unamendability norms include commitments to more parochial features of the constitution (e.g., its federal structure or distinctive institutions like the US Senate), then those provisions are not declaratory but constitutive. David Landau, “From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras,” Global Constitutionalism, 8 (2019), 40–70.

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along these lines, characteristically present in some form or another in contemporary liberal constitutional democracies,28 make perfect sense.

IV Conclusion: “We Hold These Truths to Be Self-Evident” Perhaps the best rough and ready historical expression of the principles that ground constitutional authority within a public reason–based conception of constitutionalism is contained in the second paragraph of the 1776 US Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.

Much of the substance of the declaration can relatively easily be interpreted to fit the conception of constitutionalism proposed here. I will not comment on the declaration or interpret each of its parts to relate them to the position presented here. I just want to point out, without going either into the history of the drafting process, the at-first-sight mysterious formulation of “We hold these truths to be self-evident.” How is that formulation related to the idea of public reason as the reason appropriate among free and equals participating in the project of self-government and seeking to establish norms that claim authority over them? To begin with, “these truths” are clearly not self-evident to all. If they were, it would not be necessary to declare that they are to be held as such by all. The truly self-evident goes without saying and requires no declaration. But if these truths are not self-evident, what is the significance of declaring that these truths are to be held as self-evident? Here is the most significant feature of such a declaration: When “we” hold these truths to be self-evident in such a public declaration, we agree that in our dealing with one another, in the justificatory processes that we will be engaged in as political members of the community, we will accept the things we claim to be self-evident truths. We will take that for granted for the purposes of engaging one another in public life. We will not ask for further justifications or question that the person we are dealing with does 28

For an overview, see Yanif Roznai, Unconstitutional Constitutional Amendments (Oxford: Oxford University Press, 2017).

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in fact share the status of an equally free person. Questioning the status of every member of the community as free and equal is not part of our public reason but a premise from which it proceeds. In our private capacities we may well ask what reasons we or others might have to accept the proposition that all of us share the status of free and equals for the purpose of regulating and justifying law and government institutions to each other. As Christians, Jews, or Muslims we might believe, for example, that there is a solid theological base for this, even though that has been very controversial historically in each faith and in part remains so to this day. Or we may actually believe this to be selfevident for ourselves. More generally we may believe, as Rawls does, that under certain favorable conditions an overlapping consensus between reasonable comprehensive worldviews might emerge in this regard. But what about those who do not share in this overlapping consensus? As normatively inclusive the idea of a shared status as free and equal might be, it is an idea that also has considerable exclusionary force: For those who refuse to see either themselves or others as genuinely having such a status, the justification that public reason, as the reason of and for free and equals, provides may not be convincing. Even if the measures taken by public authorities do as a matter of fact meet public reason requirements and thus make legitimate claims to authority, they may well be rejected by someone not accepting these premises, such as a white nationalist, an Islamic or Christian fundamentalist, or a justice warrior who takes as basic and statusdefining race, gender, or sexual orientation and the humiliation suffered as a bearer of these characteristics. In practice this raises problems, of course, and the question arises how best to deal with those within a political community. But in normative terms, here is the hard side of this approach: The fact that someone does not agree with the premises and is not willing “to hold these truths to be self-evident” for public purposes does not undermine the justificatory force of public reasons. Such a person merely outs himself as unreasonable. Those who refuse to accept the premises of the constitutional project merely undermine the possibility to play a constructive role in it, but not the justificatory force of public reason. Of course, much more would need to be said about “these self-evident truths.” The hypocrisy of making such claims, when slavery and severe racial discrimination were such a significant part of social and political life, does not exactly inspire confidence in the constitutional project. But instead of cynically dismissing all of it as ideology in the worst sense, it may be more adequate to reflect on how claims relating to our status as free and equals have informed historical struggles in productive ways, leading

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to progress, sometimes in fits and starts, sometimes with sustained backlashes, and sometimes far too slowly. But as lawyers and citizens we would do well to rediscover and reflect upon the ambitious nature of legal and political life, once we begin to take seriously our status as free and equals, and the demands that having such a status makes not just on public authorities but also on us as citizens. It takes courage to take ourselves seriously in this way. Instead, the temptation is to settle with conventions and perhaps a complacent, normatively unambitious idea of democracy focused on electoral majorities masquerading as “the will of the people,” all within the context of an utterly corrupted electoral system and a similarly corrupted public sphere. Among free and equals, there can be no legitimate authority, except for one that meets procedural and substantive justificatory standards of public reason. Lawyers, as constitutional interpreters, and judges, as guardians of the constitution, would do well to insist upon that.

7 A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing a l e c s t o n e s w e e t a n d er i c p a l m e r

I Introduction A constitution allowing the greatest possible human freedom in accordance with laws which ensure that the freedom of each can coexist with the freedom of all . . . other[s], is at all events a necessary idea which must be made the basis not only of the first outline of a political constitution but of all laws as well. – Kant, Critique of Pure Reason1

Immanuel Kant insisted that all persons and states were under a moral duty to seek to instantiate a Rightful condition under a constitution, which he unambiguously associated with rights protection. Notwithstanding the force of these arguments, the philosopher had remarkably little to say about how public authority ought to be organized to meet this obligation. To be sure, Kant gestures toward separation of powers and other features of the “republican state.” But these musings typically appear in the form of vague, sometimes inconsistent generalities.2 The crucial institutional question, however, is left open: what types of arrangements are most likely to help a community govern itself according to the principle of Right? This gap is hardly surprising, given that Kant wrote before any mature system of constitutional justice had been established anywhere in the world. By system of constitutional Originally published in a slightly different form in Alec Stone Sweet and Eric Palmer, “A Kantian System of Constitutional Justice: Rights, Trusteeship, Balancing,” Global Constitutionalism, 6 3 (2017), 377–411. Reprinted by permission of the author and publisher. 1 Immanuel Kant, Critique of Pure Reason (New York: Colonial Press, 1900), 3: 247. [Citations to Kant’s work are to the standard German edition of Kant’s collected works, Königlichen Preußischen (later Deutschen) Akademie der Wissenschaften (ed.), 1900Kants Gesammelte Schriften (Berlin: Georg Reimer (later Walter De Gruyter)).] 2 Immanuel Kant, The Metaphysics of Morals, Mary Gregor (ed.) (Cambridge: Cambridge University Press, 1996 [1797]), 6: 311–323.

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justice, we mean those arrangements – rights provisions, procedures, and judicial review – whose purpose is to express and protect fundamental rights. This institutional indeterminacy of Kant’s constitutional theory motivates this chapter. Our ambition is to fill gaps in ways that make his theory directly relevant to contemporary, global constitutional practice and to the jurisprudence of the most powerful rights-protecting courts. The chapter also builds on a project outlined in the journal Global Constitutionalism, “A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe.”3 That article addressed lacunae in Kant’s “Toward Perpetual Peace among States”4 and in the scholarship on that essay. Kant, readers will recall, proposed that perpetual peace could be achieved only once a group of “republican” states joined together in a treaty-based regime – which he called a “league” or “congress” of states – insofar as the effectiveness of rights of “hospitality” and the juridical status of all human beings were secured. Over the past three decades, political scientists, treating these and other factors as causal variables, have found strong support for the basics of his theory, transforming security studies. Yet, scholars have hardly addressed Kant’s own priority: the achievement, in law, of a Rightful condition at the international level. Perpetual Peace contains virtually nothing of substance with regard to how the league’s legal system should be configured. In line with other neo-Kantians, Alec Stone Sweet argued that hospitality ought to be understood expansively, in light of the template for charters of rights that undergirds contemporary conceptions of justice. And the article defined a cosmopolitan legal order as one in which (i) all officials are under an obligation to fulfill the rights of all individuals within their jurisdiction, through acts that (ii) domestic courts are positioned to supervise, according to the principle of Right. Two properties – “decentralized sovereignty” and “constitutional pluralism” – gradually emerged in Europe, as defining systemic features of a new multilevel system of justice. While the European regime provided an intricate example of the instantiation of Kantian legal order beyond the state, Stone Sweet did not attempt to develop a full account of a system of justice per se. We do so here. The argument is sequenced as follows. First, rights ground a system of equal freedom in positive constitutional law. The system authorizes 3

4

Alec Stone Sweet, “A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe,” Journal of Global Constitutionalism, 1 1 (2012), 53–90. Immanuel Kant, “Toward Perpetual Peace: A Philosophical Sketch,” in Pauline Kleingeld (ed.), Toward Perpetual Peace and Other Writings on Politics, Peace, and History (New Haven, CT, and London: Yale University Press, 2006 [1795]), 8: 381–386.

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reliance on state coercion, but only in so far as coercion ensures that each person may exercise her freedom consistently with the freedom of others, that is, according to the Universal Principle of Right (UPR, see Box 1). “Omnilateral law-making” is the basic mechanism for achieving a Rightful condition. Second, constitutional rights establish positive requirements of any valid act of public authority. Public officials – agents of the People – are charged with creating and maintaining a Rightful condition in law.5 Third, the People, by enacting a rights-based constitution, place their freedom in trust. They thereby generate justiciable obligations, borne by all officials, to fulfill these requirements. Although a fourth point is only implicit in Kant, a constitutional organ possessing strong powers of judicial review is required if rights are to be rendered effective. It is the duty of members of this trustee court to supervise the rights-regarding acts of all other state officials.6 As the caretaker of the system, the court’s primary mission is to evaluate the reasons officials give in justification of acts that burden the exercise of a right, and to invalidate acts when reasons given are judged inadequate. In Kantian terms, the court supervises the incremental process through which Public Right is constructed. Fifth, Kant’s constitutional theory strongly implies that some rights must be expressed in absolute terms, but that most rights can be limited under the UPR. Modern charters reflect these logics, in that most rights are expressly “qualified” by a “limitation clause.” Taking a cue from contemporary practice, we argue that the trustee court can do no better than to adopt the proportionality principle, and its distinctive sequence of tests, when it adjudicates qualified rights. Last, our account of constitutional justice is congruent with Kant’s ideas about the multilevel structure of Right. Domestic and international systems of justice are grounded in the same bedrock Kantian principles, facilitating how they engage with one another. It is important to stress up front that we do not claim that all of our conclusions are directly derivable from Kant. It is a brute fact that Kant’s constitutional theory is largely indeterminate when it comes to the operational details of rights protection and to the substantive content of rights doctrine. Although some of the moves we make are open to challenge, we have taken care to ensure that they do not violate Kantian precepts. Kant’s arguments proceed functionally, and he routinely posits the “necessity” of further stages of social and institutional development from the prior establishment of moral principles and obligations. The chapter extends this style 5 6

Kant, The Metaphysics of Morals, 6: 311. Kant, “Toward Perpetual Peace,” 8: 381–386.

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of reasoning, as Ariel Zylberman and others have,7 with respect to a modern system of justice. Put differently, our objective is to identify those arrangements that are most likely to resolve the crucial commitment problems that beset any attempt to realize a Rightful constitutional condition.

II Basic Elements The central thrust of Kant’s constitutional theory is to explicate the necessary constraints that individuals and states must accept if they are to fulfill their obligation to leave the “lawless state of nature” and to enter into a “Rightful” civil condition. They must do so to secure their own freedom in community. Two principles are foundational, in that they constrain the construction of the system. The Internal Duty of Rightful Honor prohibits one from consenting to social arrangements that would permit one to be used as a mere means for others.8 And the UPR limits “authorization to coerce” to those acts that meet the demands of Right.9 Kant defined Right as “the sum of the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom.”10 He conceptualized the civil version of Right as an inherently constitutional order: Public Right is . . . a system of laws for a people, that is, a multitude of human beings, or for a multitude of peoples, which, because they affect one another, need a rightful condition under . . . a constitution . . . so that they may enjoy what is laid down as Right.11

All rational beings are required to set and pursue ends in light of the freedom of every other rational being, and they may not withhold their consent from law that conforms to the UPR. Public law constitutes the civil condition on which every person’s external freedom constitutively depends.12 The state – a set of linked, “omnilateral” organs through 7

8 9 10 11 12

Ariel Zylberman, “The Public Form of Law: Kant on the Second-Personal Constitution of Freedom,” Kantian Review, 21 1 (2016), 101–126, for example, stresses that “Kant argues that public institutions are necessary to a system of rights. . . . Public institutions are not necessary simply in order to enforce fully determinate rights. [They] are also necessary in a non-instrumental sense: they are necessary to [the process of] articulating the content of rights.” Kant, The Metaphysics of Morals, 6: 236. Ibid., 6: 230–231. Ibid., 6: 230. Ibid., 6: 311. Ibid., 6: 316; Zylberman, “The Public Form of Law.”

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which officials make, interpret, and enforce law as agents of the sovereign People13 – is authorized to coerce individuals for the purpose of realizing Right, but coercion is forbidden for any other purpose.14 Box 1 contains selected commentary by Kant on these and other core concepts, the implications of which we discuss in each of the sections to come. We begin where Kant does, with the concept of freedom.

b o x 1 k an t ’s c o n s t i t u t i o n a l the o ry : p rinc ip l es and concepts Kant elaborated his most important constitutional ideas in Part I of The Metaphysics of Morals (1797), the Doctrine of Right15 [all emphases in original]. This chapter treats these concepts as the micro-foundations of a Rightful constitutional order. The Internal Duty of Rightful Honor Rightful honor consists in asserting one’s worth as a human being in relation to others, a duty expressed by the saying, “Do not make yourself a mere means for others but be at the same time an end for them.”16 Innate Freedom An innate right is that which belongs to everyone by nature, independently of any act that would establish a right; an acquired act is that for which such an act is required.17 There is only one Innate Right. Freedom (independence from being constrained by another’s choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity.18 This principle of Innate Freedom already involves the following authorizations . . . : innate equality, that is, independence from being bound by others by more than one can in turn bound them; hence a human being’s quality of being his own master, as well as being a human being beyond reproach, since before he performs any act affecting rights he has done no wrong to anyone; and finally, his being authorized to do to others anything that does not in itself diminish what is theirs . . . .19

13 14 15 16 17 18 19

Kant, The Metaphysics of Morals, 6: 313–318. Ibid., 6: 231. Kant, The Metaphysics of Morals, 6: 229–378. Ibid., 6: 236. Ibid., 6: 237. Ibid. Ibid., 6: 237–238.

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b o x 1 (CONT.) Public Right and the Universal Principle of Right Right is the sum of the conditions under which the choice of one can be united with the choice of another in an accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.20 The sum of the laws that need to be promulgated generally in order to bring about a Rightful condition is Public Right.21 The Universal Principles of Right: Any act is Right if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law.22 If then my action or my condition generally can coexist with the freedom of everyone in accordance with a universal law, whoever hinders me in it does me wrong, for this hindrance (resistance) cannot coexist with freedom in accordance with a universal law.23 [C]oercion is a hindrance or a resistance to freedom. Therefore, if a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom), is consistent with freedom in accordance with universal laws, that is, it is Right.24 The State and the Idea of the Original Contract The act by which a People forms itself into a state is the original contract. Properly speaking, the original contract is only the idea of this act, in terms of which alone we can think of the legitimacy of the state.25 [T]he spirit of the original constitution involves an obligation on the part of the constituting authority to make the kind of government suited to the idea of the original contract. Accordingly, even if this cannot be done all at once, it is under an obligation to change the kind of government gradually and continuously, so that it harmonizes in its effect with the only constitution that accords with Right, that of a pure republic, in such a way that the old (empirical) statutory forms, which serve merely to bring about the submission of the people, are replaced by the original (rational) form, the only form which makes freedom the principle and indeed the condition for any exercise of coercion, as is required by a Rightful constitution of the state in the strict form of the word. Only it will finally lead to what is literally the state.26

20 21 22 23 24 25 26

Ibid., 6: 230. Ibid., 6: 311. Ibid., 6: 230. Ibid., 6: 230–231. Kant, The Metaphysics of Morals, 6: 231. Ibid., 6: 315. Ibid., 6: 340–341.

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b o x 1 (CONT.) [I]t is only in conformity with the conditions of freedom and 27equality that [the] people can become a state and enter into a civil constitution. The Omnilateral Lawmaker [A] will that is omnilateral, that is united not contingently but a priori and therefore necessarily . . . is the only will that is lawgiving.28 The legislative authority can only belong to the united will of the people. [O] nly the concurring and united will of all, insofar as each decides the same thing for all and all for each, and to only the united, general will of the people, can be legislative.29 Publicity [Publicity] is implied in any legal claim, since without it there would be no justice (which can only be thought of as publicly proclaimable), and thus no Right, since Right can be conferred only by justice.30 Any legal claim must be capable of publicity.31 This principle is to be understood as being not only ethical . . . but also juridical (as concerning the rights of humans).32 The transcendental formula of Public Right: All actions that affect the rights of other human beings, the maxims of which are incompatible with publicity, are unjust.33

III Freedom and Rightful Coercion Kant argues that external freedom – “independence from being constrained by another’s choice” – is “the only one innate right” possessed by “every man by virtue of his humanity.”34 The scope of freedom is subject to the UPR: the external independence of any person is to be recognized “only insofar as it can coexist with the freedom of every other in accordance with a universal law.”35 Freedom is innate in that its existence does not depend on any affirmative act on the part of an agent or the state, unlike the “acquired rights” that form the substance of contract and 27 28 29 30 31 32 33 34 35

Ibid., 6: 315. Ibid., 6: 263. Ibid., 6: 313–314. Kant, “Toward Perpetual Peace,” 8: 381. Ibid., 8: 381. Ibid., 8: 381. Ibid., 8: 381. Kant, The Metaphysics of Morals, 6: 237. Ibid., 6: 237–238.

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property law, for example. Kant supposes that a person’s means-based capacity is conceptually prior to the setting of ends. In the absence of such capacity, one can only wish for an end, but one cannot make it one’s purpose to set about achieving that end. It follows that every person must possess certain inherent powers if they are to be, in fact, independent. Independence is a relational concept; as Ripstein stresses, it “cannot be predicated of a particular person considered in isolation.”36 A person is independent only if she is able to exercise her capacity to set and pursue ends without being subject to the controlling authority or influence of another person.37 Independence is also counterfactually robust: person X is not independent from Y, if Y has a power to interfere with X’s capacity to choose, even if Y foregoes the exercise of that power. Slaves whose master declines to interfere with their decisional autonomy are nonetheless subject to the master’s relational authority, since the master could exercise it. On Kant’s view of freedom, actual noninterference is neither a necessary nor sufficient condition for freedom. Indeed, noninterference can coexist with another person’s entitlement to interfere, as in the case of the benign slaveholder. More important for our purposes, Kant stipulates that coercive interference with the independence of each person is defensible only when it is necessary to secure the freedom of all in a Rightful, legal order. Innate Right begets the principle of Rightful Honor, which is expressed through this maxim: one may not allow oneself to be used as a mere means for others.38 At first glance, this requirement looks out of place in the Doctrine of Public Right, which concerns social interactions and arrangements. But the Internal Duty of Rightful Honor is also relational: it operates to restrict a person’s exercise of freedom, by barring them from entering into legal relationships that are inconsistent with their own status as free and equal persons.39 Reciprocal relations among free persons must respect the Innate Freedom – one’s inalienable, meansbased capacity – not undermine or destroy it. The notion of freedom as an innate attribute of personhood means that all individuals are entitled to pursue their chosen ends, so long as they do not violate Rightful Honor along the way. We can, on these grounds, distinguish freedom from other justifications of coercive public authority, 36 37

38 39

Arthur Ripstein, Force and Freedom (Cambridge: Harvard University Press, 2009), p. 15. Louis-Philippe Hodgson, “Kant on the Right to Freedom: A Defense,” Ethics, 120 (2010), 791–819; Zylberman, “The Public Form of Law,” 109. Kant, The Metaphysics of Morals, 6: 236. Ripstein, Force and Freedom, p. 37.

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including welfare maximization. An agent may always ask, “why should I accept that reason for coercion?” The Kantian response is stark and unyielding: the only acceptable justification for restricting the freedom of a rational agent is the need to instantiate the collective freedom of everyone.40 A civil condition is Rightful only if it conforms to the UPR, which states that: any action is Right [that is, just] if it can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with universal law.41

Thus, considered in terms of institutional design, Rightful Honor restricts the delegation of certain legislative powers to state organs, thereby constituting a micro-foundation of the Rightful civil condition itself. And the UPR constrains how officials are to exercise their powers to make, and coercively enforce, the law. State coercion to promote an end other than the construction of Public Right is categorically forbidden, no matter how worthwhile that end might seem to be, or how many might value it. Looking forward, what are the structural implications of these arguments for contemporary constitutional law and practice? First, the principle of Rightful Honor means that no person may justifiably accept any binding arrangement that abrogates her basic entitlements to freedom.42 Put positively, in a Rightful constitutional condition, every person possesses an inalienable entitlement to justiciable rights. Second, public law constitutes the external freedom of all. As elaborated further in Section IV, a charter of rights does not merely give concrete expression to freedom but grounds the construction of the Rightful constitutional condition. Third, in any Rightful condition, a person’s independence is subject to justifiable limitations. Kant, after all, connects the UPR to a public lawmaker’s “authorization to coerce” at the outset of the Doctrine of Right.43 Public law articulates the scope and content of each person’s external freedom to act purposively within society, insofar as that law meets the demands of the UPR. Rights authorize officials “to hinder any 40 41 42

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Kant, The Metaphysics of Morals, 6: 316. Ibid., 6: 230–231. See Ariel Zylberman, “Kant’s Juridical Idea of Human Rights,” in Andreas Føllesdal and Reidar Maliks (eds.), Kantian Theory and Human Rights (New York: Routledge, 2015), pp. 27–51. Kant, The Metaphysics of Morals, 6: 230–231.

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hindrance” to freedom,44 in order to realize the external freedom of all under a system of law.

IV The State and Omnilateral Law-Making Suppose that two persons, X and Y, attempt to interact on conditions of equal freedom in the absence of authoritative legal institutions. If X makes any territorial claim – even through moving from point A to point B – the effect of X’s action will be to place Y under an implied duty: to refrain from moving to point B or otherwise interfering with X’s purpose for doing so.45 By what authority does X impose this obligation on Y? Prior to X’s decision to walk from point A to point B, Y enjoyed an equal entitlement to move to point B. X’s move eviscerates Y’s entitlement, while impliedly shackling Y with new obligations. Given the principles of Rightful Honor, X could not possess the capacity to unilaterally subjugate Y’s freedom to X’s purposes. Y may not allow the private will of X to determine Y’s purposes. Self-abnegating deference to the unilateral determinations of others conflicts, more generally, with the dictates of independence and of Rightful Honor. Simplifying a complex argument, even when people do succeed in freely negotiating rules to govern their relations, these arrangements can only be provisional. In a pre-legal condition, Kant famously insisted 46 binding legal entitlements cannot exist because no private person has a power to bind another to act in accordance with duties of Right. The dilemma Kant diagnoses is one of unilateral authorization: Y is never required to accept X’s attempts to assert, unilaterally, any entitlement that would limit Y’s freedom. X possesses no legitimate authority to compel Y to do anything. The solution requires delegation of powers to an omnilateral lawgiver – an institution with public authority – to create a Rightful condition.47 Public acts are omnilateral insofar as they are choices taken on behalf of all citizens, rather than the choices of one or a group of particular persons. Omnilateral acts are those that seek to 44 45

46 47

Ibid., 6: 231. The fact that the world is round turns out to be a crucial underpinning of Kant’s theory of property and, ultimately, of his Doctrine of Public Right; Ibid., 6: 311, 352–353. As Flikschuh puts it: “Kant’s image of the earth’s spherical surface is that unavoidable constraint of nature within the limits of which finite rational beings must resolve conflicts of external freedom and justice,” in Katrin Flikschuh, Kant and Modern Political Philosophy (Oxford: Oxford University Press, 2000), p. 179. Kant, The Metaphysics of Morals, 6: 256–317. Ibid., 6: 263.

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create or preserve the formal conditions under which persons can rule themselves, that is, to be externally free in community, under the UPR.48 Omnilateral lawmakers establish determinate boundaries on the zone of freedom in which individuals interact. At the same time, the UPR constrains the exercise of public authority.49 Thus, with respect to tensions that may result from a territorial clash between X and Y, the omnilateral state regulates. The law may (i) demarcate the spatial zones in which X and Y may act without being liable in trespass; (ii) enforce a rule of first-in-time for occupancy; (iii) establish conditions for claiming title; or (iv) turn the land into a public park. Officials can realize Public Right through myriad means. It is crucial, however, to stress that omnilateral law-making has the inherent capacity to construct a new normative condition that cannot be fully comprehended in terms of a priori moral reasoning; only the principles of Public Right, which are given content through law-making, can be known a priori. Thus, nothing in Kantian theory tells us what types of meanings people may invest in a public park, or how such meanings may influence subsequent disputing about its use. Tellingly, Kant defines the state as “a union of a multitude of human beings under laws of Right,” whose legislative powers “can belong only to the united will of the People.”50 He characterizes deputies in parliament as both representatives of the People and “the guardians of its freedom and rights.”51 The next step comes naturally: all state officials, agents of the people, are under a duty to make, interpret, and apply law in a manner consistent with the UPR. While we will specify these duties with more precision below, at this point it is enough to repeat that the delegation of law-making authority is a functional necessity, given the incapacity of individuals to realize Public Right on their own.

V Rights as Positive Requirements of Legality What little Kant tells us about delegation and the creation of the state is filtered through the “idea of the original contract”: In accordance with the original contract, everyone . . . gives up his external freedom in order to take it up again immediately as a member of the 48 49 50 51

Ibid., 6: 263. Ripstein, Force and Freedom, pp. 145–181. Kant, The Metaphysics of Morals, 6: 313. Ibid., 6: 319.

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commonwealth, that is, of the people considered as a state . . . [O]ne cannot say: the human being in a state has sacrificed part of his innate outer freedom for the sake of an end, but rather, he has relinquished entirely his wild lawless freedom in order to find his freedom as such undiminished, in a dependence upon laws, that is, in a Rightful condition, since this dependence arises from his own lawgiving will.52 (Emphasis added.)

Kant characterized the “idea” as a necessary theoretical construct; it does not depend upon the facts of how any state actually emerged or operates. The construct contrasts with classical contractarian accounts of political authority, which link the legitimacy of state coercion to a datable act of voluntary agreement or authorization in which persons cede powers to the state. Presupposing the original contract sets the stage for an elucidation of the demands imposed by the UPR on the exercise of public authority. Kant wrote before any state, as he defined it, had ever been established. He was also silent on many crucial issues of constitutional design. He did not develop a full-fledged theory of rights or specify the mechanisms for their protection. Kant illustrates his arguments with reference to a small handful of rights; and he provides little guidance to a polity that commits itself to compliance with the UPR. In response to these gaps, we propose a structural account of constitutional justice that is both Kantiancongruent and consistent with the basic facts of contemporary, rightsbased constitutionalism. We thus confront the following question: what components of a system of constitutional justice would optimize a community’s capacity to achieve Public Right? The first step is to conceptualize constitutional rights as positive requirements of legality. Rights – substantive limitations on the exercise of public authority, along with standing and due process requirements – are justiciable commands. Every official owes a duty to make and enforce laws in a manner consistent with the UPR and to refrain from subjecting individuals under their authority to coercive rules that are inconsistent with the UPR. And every individual has a right to defend their rights in a lawsuit. Conceived in Kantian terms, rights formally express external freedom in law for individuals, however imperfectly realized or under construction. Rightful Honor restricts the consent of the People in ways that limit rights provisions. Kant, himself, derived the content of a few rights from 52

Kant, The Metaphysics of Morals, 6: 315–316.

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Rightful Honor, including freedom of expression, religious liberty,53 and the presumption of innocence.54 An expansive notion of freedom of expression, for example, is linked to the right to be one’s “own master.”55 Limiting expression is appropriate to prevent one person from depriving another of her own capacity as a free and honorable agent; thus, one may not impugn another’s reputation or deprive them of choice and Rightful means through fraudulent inducement.56 The right to the presumption of innocence is also rooted in the foundational principles: to be treated, presumptively, as “a human being beyond reproach.”57 And Kant bluntly states that “no human being in a state can be without any dignity,” before explaining why slavery must be categorically forbidden.58 The principles of Innate Freedom and Rightful Honor imply that certain rights, such as freedom from being enslaved, are absolute, insofar as no legitimate, UPR-compliant reasons can be given for their infringement. Absolute rights are those that are required to secure a person’s place as a juridical person in a system of equal freedom writ large. Most rights in modern constitutions, however, are not expressed in absolute terms but are “qualified” by limitation clauses. Qualified rights command the omnilateral lawmaker to secure the reciprocal freedom of all in law. In Kantian terms, such rights recognize the individual’s entitlements to set and pursue ends, while providing reasons for officials to restrict the scope of those same entitlements, in order to realize Public Right. The distinction between absolute and qualified rights is not always obvious. Consider the right to life and the prohibition of slavery.59 The latter is an absolute right, because it amounts to a complete deprivation of a person’s entitlement to freedom. There are no UPR-compliant reasons that could justify imposing this status – a denial of juridical personhood – on anyone. By contrast, the right to life has an absolute dimension, in that it safeguards a person’s purposiveness as such. But there may well be 53

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Immanuel Kant, “An Answer to the Question: What Is Enlightenment?,” in Hans Reiss (ed.), Kant: Political Writings (Cambridge: Cambridge University Press, 1994 [1784]), 8: 39. Kant, The Metaphysics of Morals, 6: 238. Ibid., 6: 238. Ripstein, Force and Freedom, p. 210. Kant, The Metaphysics of Morals, 6: 238. Ibid., 6: 330. Immanuel Kant, “On the Proverb: That May Be True in Theory, but Is of No Practical Use (1793),” in Ted Humphrey (trans.), Perpetual Peace and Other Essays (Indianapolis: Hackett, 1983), 61–92.

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UPR-compliant reasons licensing the state to take someone’s life. The state might kill person X, for example, in order to prevent X from depriving Y of life. The maintenance of a system of equal outer freedom may, at times, depend on the use of lethal force when there is no alternative means of protecting the freedom of others or all. Under this view, only the core of the right to life – a right against being arbitrarily put to death or killed for the sake of private ends – is absolute. We can push Kant’s method of deriving entitlements further to sketch a picture of a charter of rights as foundational norms of justice in law. Again, the key is to consider the UPR as a legal obligation binding on the exercise of state authority. Thus, the constitutional contract places officials under a duty, owed to every person subject to their authority, not to make or enforce law in ways that are inconsistent with their rights. When it comes to qualified rights, the legitimacy of the justification for the limitation of one’s freedom will turn on its consistency with the UPR. Further along, we will propose a way of conceptualizing the proportionality framework as an analytical procedure for arriving at answers to precisely this type of question. Before doing so, we need to bring judicial review into the picture.

VI The Constitutional Court as Omnilateral Trustee We have argued that an enumerated bill of rights deserves pride of place in a Kantian constitutional order. The rights-based constitution converts the idea of the original contract into positive constitutional law, while delegating to officials the authority to secure Public Right. Kant insisted that it was the cardinal duty of every official to give effect to the normative principles extrapolated and defended in the Doctrine of Right, without which a just, constitutional order could never be realized. Enforcing the charter of rights would, in effect, operationalize the UPR as the basic criterion of law’s legitimacy. In this constitutional order, some rights will be expressed in absolute terms, but most will be qualified by limitation clauses that expressly authorize lawmakers to infringe on freedoms when necessary to achieve Public Right. We now take on the task of describing a Kantian-congruent system of constitutional judicial review, a topic on which he wrote virtually nothing. Our claim is that Kantian theory requires a “constitutional court,” which we define as an apex, omnilateral organ of governance whose mission is to supervise compliance with the UPR. The Court (i) evaluates the rightsregarding acts of all other public officials, (ii) issues authoritative

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interpretations of the content, scope, and application of the charter, (iii) certifies that officials act according to the UPR, and (iv) invalidate acts that violate rights. Delegation theory is directly relevant to this situation.60 Kant elaborates an abstract, functionalist claim to the effect that the move to omnilateral governance must take place if the polity is to progress toward a Rightful civil condition. The written constitution, a formalized act of delegation by the sovereign People, authorizes public officials to make and enforce law in order to realize a Rightful civil condition. In pursuing this same tack, one confronts an obvious agency problem: how do the People ensure that officials will act according to the UPR? At the very least, allowing legislators to sit in judgment of their own statutes would make it impossible for citizens to distinguish a proper public act from one that pursues a private or an illicit interest.61 Citizens would also not know if an act violates the UPR. The constitutional court is the institutional solution to this problem. Yet the problem that generates the demand for a constitutional court runs deeper still. Correlative to the state’s duty to govern in a manner consistent with the UPR is the Innate Right of each person to freedom. Rights-as-freedom will be illusory unless each person subject to the state’s authority is entitled to challenge state action. For Kant, a right is a moral power held by each citizen, a juridical title to act or be in a condition. If he is correct, then citizens can invoke a right in order to justify their acts or positions. But qualified rights are more than that: they authorize state officials to coerce.62 It follows that for Innate Freedom, and its positive determinations in explicit constitutional guarantees, individuals must have a legal power to constrain wrongdoing on the part of state officials. A right against the state requires as much. This creates a prima facie difficulty for constitutional rights. The power to coerce state officials into compliance with the UPR cannot be operationalized through private acts of resistance, on pain of rendering 60

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Scholars have standardized the theory, as a general approach to delegated governance, in the guise of Principal-Agent models, Mark Thatcher and Alec Stone Sweet, “Theory and Practice of Delegation to Non-Majoritarian Institutions,” West European Politics, 25 (2002), 1–22. When state officials act in the absence of authorization, Ripstein, Force and Freedom, p. 173, demonstrates that there is no way to make sense of their actions as public acts, as opposed to private exercises of coercive power. Qualified rights both authorize action and license the constraint of wrongdoing. For Kant, what justifies a coercive act in the first place is the necessity of “hindering . . . a hindrance to freedom,” Kant, The Metaphysics of Morals, 6: 231.

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the omnilateral will of the state subject to the unilateral say-so of each person. Put differently, if Innate Freedom transmutes into a sequence of justiciable positive rights held by each person, then each person also possesses a title to constrain officials from wrongful interference with their freedom.63 Once activated, the constitutional court determines the scope and application of a pleaded right; but its ruling will not be based on the unilateral judgment of the claimant, but on the constitution itself, the foundational act of the will of the People. No other institution could perform this crucial, adjudicative function. In a system of parliamentary sovereignty, notwithstanding the commitment of the legislature to respect rights (an empirical not a juridical state of affairs), individuals possess no entitlement to demand legislative compliance with the UPR. Rather, such a system recognizes only a collective power to hold the legislature accountable through voting and public deliberation.64 Where no one possesses an individualized title to require the state to comply with the terms of the UPR, no one holds a genuine right, and the legitimacy of the law cannot be assured. Consider the “new commonwealth model” of constitutionalism,65 which purports to reconcile legislative supremacy with rights protection. That model features (i) a charter of rights, (ii) some form of judicial power to review legislation and other government acts for consistency with the charter, trumped by (iii) a legislative “final word” that will determine whether a law judged to be inconsistent with a right provision will nonetheless remain in force. While the model gives standing to individuals to challenge wrongful state action, the legislature can choose to maintain a statute that violates rights. This is a version of what Kant called despotism: “the autonomous execution by the state of the laws which it has itself decreed.” In such a situation, “the public will” expressed in the constitution is “administered by the ruler at his own will.”66 A majority within the legislature, rather than preexisting constitutional rules, determines the resolution of the conflict. As a practical matter, the capacity of the constitutional court to render justice will depend upon an extensive grant of power and jurisdiction. 63

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The mechanism is a lawsuit brought by an individual rights claimant. We take no position on any other grant of authority to a constitutional court here. Jacob Weinrib, “The Modern Constitutional State: A Defence,” Queen’s Law Journal, 40 (2014), 165–211. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Oxford: Oxford University Press, 2012). Ripstein, Force and Freedom, p. 352.

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The authority to review the conformity of statutes with rights and the UPR is required. Prohibited are arrangements that (i) restrict the binding authority of legal statements in judicial opinions to the parties of the judgment, or (ii) ascribe to the legislature the competence to make determinations regarding the scope and content of rights but withhold them from the judge, or (iii) require judges to defer to nonjudicial officials in rendering such determinations. Rights must be justiciable with respect to all public acts. In a system designed to achieve Public Right, the Court will oversee, and therefore participate in, omnilateral law-making. But its primary role is to adjudicate constitutional disputes that arise from the omnilateral law-making of officials. Put in the language of delegation theory, although the Court is an “agent” of the People, the situation is one of trusteeship.67 In sketching a simple model of trusteeship, we can express more formally the role to be played by the constitutional court.68 Through legislating a rights-based constitution, the People have placed the ultimate value – their freedom – in trust. The constitution confers judicial review powers on the court, for the purpose of enforcing rights as positive requirements of legality. It places officials under the constitutional obligation to act according to the UPR, as a means of constructing Public Right; and it tasks the constitutional court with monitoring their compliance with this obligation. The court can only properly perform its mission if it possesses the authority to invalidate any public act that violates a right provision, and its decisions are effectively insulated from override on the part of the public officials whose decisions it controls.69 We recognize that this part of our argument – that Kantian imperatives generate a powerful functional demand for the structural supremacy of a “trustee court” – will be controversial. The claim, however, does not conflict with Kant’s own pronouncements, spare as they are, on legislative power and justice. As noted, Kant defined the state as a “union of a multitude of human beings under laws of Right,” and asserted that “it is 67

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Thatcher and Stone Sweet, “Theory and Practice of Delegation to Non-Majoritarian Institutions,” 7. On the concept of the trustee court, see Alec Stone Sweet, “Constitutional Courts and Parliamentary Democracy,” West European Politics, 25 (2002), 77–100; Stone Sweet, “A Cosmopolitan Legal Order”; and Alec Stone Sweet and Thomas Brunell, “Trustee Courts and the Judicialization of International Regimes: The Politics of Majoritarian Activism in the ECHR, the EU, and the WTO,” Journal of Law and Courts, 1 (2013), 61–88. As a matter of institutional design, a court that meets these criteria is a trustee.

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only in conformity with the conditions of freedom and equality that [the] people can become a state and enter into a civil constitution.”70 Under this constitution, the people govern themselves collectively: The legislative authority can only belong to the united will of the people. . . . Only the concurring and united will of all, insofar as each decides the same thing for all and all for each, and to only the united, general will of the people, can be legislative.71

Today, we no longer have to understand the idea of an “original contract” as a purely regulative ideal; the People typically manifest themselves when they enact new constitutions, say, through a referendum. The rights-based constitution delegates law-making authority to various organs and officials, while the charter of rights constrains the exercise of that authority. Given a conflict between a rights provision and any legislative act, the former prevails. In such a situation, neither parliamentarians nor executives are principals in relation to the constitutional court; instead, they are agents of the People, and the People have commanded the court to supervise the decision-making of all officials. Kant himself equated judicial authority with justice: A Rightful condition is that relation of human beings among one another that contains the conditions under which alone everyone is able to enjoy his rights, the formal condition under which this is possible in accordance with the idea of a will giving laws for everyone is called public justice. . . . [A] court is itself called the justice of the country, and whether such a thing exists or does not exist is the most important question that can be asked about any arrangements having to do with rights.72 (Emphases in the original.)

Today, when it comes to rights-based constitutionalism, the People, as primary lawmakers, have legislated judicial supremacy. Parliamentarians are secondary lawmakers, agents of the People, and subject to the decisions of the trustee court. Constitutional judges are caretakers, stewards, of the regime. It should be obvious that a system that features the supremacy of an authoritative constitutional court fatally undermines the usual presumptions of delegation theory, which are exemplified by the simpler Principal-Agent models of the social scientist. In “agency-control” 70 71 72

Kant, The Metaphysics of Morals, 6: 313, 315. Ibid., 6: 315. Ibid., 6: 305–306.

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models, a unified principle possesses the means to control the acts of her Agent on a continuous basis. A trustee, however, is a special type of agent. In this instance, the court is entrusted with promoting the values placed in reserve by the People: their freedom. The People, as the constituent legislative power, are also the beneficiaries of the trust going forward. The constituent power alone possesses the authority to alter the terms of the trust, which it may do through revising the constitution.73 Trust law offers further analogies that are appropriate to our argument, notably, in its emphasis on fiduciary duties. Because both citizens and officials are vulnerable to the trustee court’s judgments, the judges are bound by a set of robust obligations. The most important of these fiduciary duties – typically formalized as (i) loyalty, (ii) accountability, and (iii) deliberative engagement – apply to the trustee judge.74 As Ethan Leib, David Ponet, and Michael Serota argue, loyalty refers to the judge’s duty to protect rights in ways that ensure that public officials act in accordance with the UPR. The duty of accountability requires the Court to justify its rulings with reasons. And the obligation of deliberative engagement requires the judge “to engage in dialogue” with those who are vulnerable to her rulings, which include both rights claimants and officials. The latter entails “an authentic effort to uncover preferences rather than a mere hypothetical projection of what beneficiaries might want.”75 In Kantian terms, a robust fiduciary construction of trusteeship will underwrite reasons individuals have to accept state coercion. As a matter of positive law, each person retains the right to challenge any decision that would infringe upon their rights, and every official is placed under a duty to justify acts under review in terms that are comprehensible under the Doctrine of Public Right. In our view, the right to justification76 cannot be optional. Instead, it comprises a meta-rule that commits the polity to procedures that are conducive to the construction of Public

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Alec Stone Sweet, “Constitutional Courts,” in Michel Rosenberg and András Sajó (eds.), Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), pp. 816–830. Ethan Leib, David Ponet, and Michael Serota, “A Fiduciary Theory of Judging,” California Law Review, 101 3 (2013), 699–753; Stone Sweet and Brunell, “Trustee Courts and the Judicialization of International Regimes.” Leib, Ponet, and Serota, “A Fiduciary Theory of Judging,” 699. For a broader account of the “right to justification,” see Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (New York: Columbia University Press, 2011).

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Right. Arguably, in “Perpetual Peace,” Kant implied such a right in short but important remarks on “publicity:” [Publicity] is implied in any legal claim, since without it there would be no justice (which can only be thought of as publicly proclaimable), and thus no Right, since Right can be conferred only by justice. Any legal claim must be capable of publicity.77

Kant goes on to pronounce a “transcendental formula of Public Right,” according to which “all actions that affect the rights of other human beings which are incompatible with publicity are unjust.”78 Scholars differ on how best to interpret Kant’s insistence on the principle of publicity.79 For present purposes, we understand it as presumptive support for a right to justification (held by all citizens) and its corollary, a reason-giving requirement (binding on officials). More generally, a reason-giving requirement is a functional necessity for any system of constitutional justice, if it is to develop effectiveness.80 In any event, the right to justification must be reflected in rules of adjudication, including standing (access to justice), the fiduciary duties of the Trustee court (accountability and deliberative engagement), and in constraints on the exercise of public authority by officials (reason-giving, as disciplined by the UPR). In this same spirit, we now address the question of why the trustee court ought to embrace the proportionality principle, or some (currently unknown) principle that performs better than proportionality, if it is to fulfill its mission.

VII The New Constitutionalism and the Proportionality Principle Since 1950, the gradual consolidation of rights-based constitutionalism has transformed the global political and legal landscape. The precepts of this new constitutionalism can be simply stated: (i) state organs are established by, and derive their authority from, a written constitution; 77 78 79

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Ripstein, Force and Freedom, p. 381. Ibid., p. 381. Kevin Davis, “Kantian Publicity and Political Justice,” History of Philosophy Quarterly, 8 4 (1991), 409–421; John Christian Laursen, “The Subversive Kant: The Vocabulary of ‘Public’ and ‘Publicity,’” Political Theory, 14 4 (1986), 584–603. Stone Sweet, “Constitutional Courts.”

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(ii) the constitution assigns ultimate power to the People by way of elections or referenda; (iii) the exercise of public authority, including legislative, is lawful only insofar as it conforms with the constitutional law; (iv) the constitution provides for a catalog of rights and a mode of judicial review to defend those rights; and (v) the constitution is entrenched, specifying how it may be revised. As an empirical matter, virtually every new constitution adopted over the past three decades established systems of justice in line with this template.81 These developments make Kant’s theory of Public Right directly relevant to constitutional practice. One can treat our model of Kantian justice as an ideal type for heuristic comparative purposes. The model bears more than a surface resemblance to the most important domestic systems of justice operating in the world today; in these, certain norms and stipulations are treated as necessary determinants of more specific rights and of constitutional legality itself. Well-known examples include the case of the right to dignity in the German Basic Law,82 the requirements of “equal citizenship” in “a free and democratic society” found in the Canadian Charter of Rights and Freedoms,83 or the values of “human dignity, equality, and freedom” that are synthesized in the Constitution of the Republic of South Africa.84 These formulations come before the listing of more specific rights and, in most contemporary constitutions,85 the catalog of rights comes before the constitution of state organs. In post–World War II constitutions,86 81

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Alec Stone Sweet, “Constitutions, Rights, and Judicial Power,” in Daniele Caramani (ed.), Comparative Politics, 4th edn. (Oxford: Oxford University Press, 2017), reports data on constitutions adopted since 1985. German Basic Law, Art. 1 (1). Canadian Charter of Rights and Freedoms, Section 1, Part I of the Constitution Act, 1982. Constitution of the Republic of South Africa, Section 7; Section 1, Act 108 of 1996. The Canadian Charter of Rights, a standalone text that applies to the 1867 British North America Act, being a notable exception. We will not address the American debate between advocates of “originalism” and “living constitutionalism,” except to make the following point. Originalists argue that courts are bound by whatever interest balancing has already been undertaken by the sovereign People, when that balancing is expressed in a specific rights provision; Antonin Scalia, District of Columbia v. Heller, 554 US 570 (2008), 634–645. Under this approach, balancing in adjudication would still be appropriate if the inquiry establishes that the right was understood as qualified rather than absolute when the people adopted it. In many post–World War II systems, where provisions establishing qualified rights impose an implied duty of dynamic interpretation on judges, an originalist approach is broadly compatible with “living constitution” notions.

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almost all rights are qualified by limitation clauses, yet another Kantian gloss. Omnilateral law-making organs operate under a continuous obligation to generate a determinate legal ordering that conforms to rights; and a trustee court resolves legal disputes within that ordering. Under the Doctrine of Public Right, law’s legitimacy is subjected to the dictates of a covering principle – the UPR – which, in turn, is rooted in the principles of Innate Freedom and Rightful Honor. Indeterminacy is built into both rights provisions and the UPR. The fraught question – “under what circumstances does an absolute right apply?”– bedevils even the most refined systems of constitutional justice. Qualified rights are indeterminate, incomplete norms by definition and design. Whether officials have abused powers delegated to them by a derogation clause is a question that cannot be settled by referring to, or conceptualizing dogmatically, the right, or the public interest that lawmakers pursue. Further, because the limitation clause incorporates the public interest into the right, the usual conflict rules are useless. One cannot appeal to hierarchy or the primacy of the right or the public interest in the abstract, since both parties are, in fact, pleading the same norm. Applying the lex posterior derogat legi priori rule is also prohibited, since the adoption of any new statute would automatically eviscerate the rights claim, the basis of which dates from the adoption of the constitution. In a situation in which a rights claim comes into conflict with a legitimate public interest, the best constitutional judges can do is to embrace proportionality analysis (PA). In fact, over the past 50 years, the world’s most powerful constitutional courts have institutionalized PA as the dominant “best-practice” doctrinal framework for adjudicating qualified rights.87 PA belongs at the very center of a Kantian system of constitutional justice for three interrelated reasons. First, it permits judges to give broad scope to any qualified right being pleaded, mirroring Kant’s argument that all positive 87

Alec Stone Sweet and Jud Mathews, “Proportionality and Global Constitutionalism,” Columbia Journal of Transnational Law, 47 (2008), 73–165; Jud Mathews and Alec Stone Sweet, “All Things in Proportion? American Rights Review and the Problem of Balancing,” Emory Law Journal, 60 (2011), 102–179; Mattias Kumm, ”Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice,” International Journal of Constitutional Law, 2 (2004), 574–596; Mattias Kumm, “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review,” Law & Ethics of Human Rights, 4 1 (2010), 141–175; Aharon Barak, “Proportionality,” in Michel Rosenberg and András Sajó (eds.), Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), pp. 738–755.

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rights held against public officials give concrete expression to a single unitary right to Innate Freedom, rather than a succession of discrete rights whose scope might, in principle, be quite limited. Most contemporary rights-based constitutions proclaim a general right to liberty, to which the qualified rights give specific content. The trustee court, in accepting the validity of a claim based on a qualified right, does not thereby resolve the case but, rather, requires the official to justify the act that has burdened the claimant.88 Second, PA commits judges to the systematic evaluation of such justifications. Under PA the crucial question is always, as Mattias Kumm puts it, “whether a public action can be demonstratively justified by reasons that are appropriate in a liberal democracy,” given the paramount importance of rights in modern constitutionalism.89 Third, a trustee court that deploys PA consistently and in good faith will fulfill the fiduciary duties discussed in Section VI,90 of loyalty (to constitutional values), accountability (through reasongiving), and deliberative engagement (with rights-holders and officials). PA thus gives procedural structure to the right to justification, strongly implied by Kant himself (discussed in Section VI), “in terms of public reason.”91 We now provide a brief summary of PA and sketch how a Kantian trustee court would presumptively deploy it.

VIII Proportionality and Qualified Rights PA is tailor-made for resolving disputes that involve a conflict between a rights claim and a public act whose constitutional legality, officials allege, is covered by a limitation clause. In the latter paradigmatic situation, the analysis proceeds step by step, as follows. In a preliminary phase, the judge considers whether a prima facie case has been made to the effect that a government act burdens the exercise of a right. By convention, the judge will use this occasion to discuss the jurisprudential theories that underpin the pleaded right, as well as prior 88

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“In institutional terms, these features of human rights practice require a recharacterization of what courts do when they assess whether public authorities have violated rights. Courts are not simply engaged in applying rules or interpreting principles. They assess justifications. Call this the turn from interpretation to justification,” Kumm, “The Idea of Socratic Contestation,” 144. Kumm, “The Idea of Socratic Contestation,” 42. Stone Sweet and Brunell, “Trustee Courts and the Judicialization of International Regimes,” 69. Ibid., 144, 150.

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rulings and other legal materials that will bear upon the court’s determination of the right’s scope and application in the case at hand. In its most developed form, PA then proceeds through a sequence of four tests: (i) “legitimacy” or “proper purpose”; (ii) “suitability”; (iii) “necessity”; and (iv) “balancing in the strict sense.” A government measure that fails any one of these tests violates the proportionality principle and is therefore unconstitutional. The first stage of PA mandates inquiry into the “legitimacy” of the measure under review: the judge confirms that the constitution authorizes the government to take such a measure, typically, under a limitation clause (express or implied). In most jurisdictions, judges effectively treat the proper purpose prong of PA in the style of a threshold inquiry: if the constitution has not authorized the state to pursue such a purpose, then the rights claimant must prevail. In the second step – “suitability” – the government must show that a rational relationship exists between the means chosen and the ends pursued, such that the former is suitable to achieving the end (which, the first test has already confirmed, constitutes a legitimate public purpose). In most systems, few laws are struck down on grounds that the official purpose is illicit (per se illegitimate), or that the act is irrational or arbitrary (the means being unsuitable).92 The third phase – “necessity” – has far more bite than the suitability inquiry. At its core is a least-restrictive-means (LRM) test93 through which the judge ensures that the measure under review does not curtail the right being pleaded more than is necessary for the government to achieve its declared purpose. In practice, judges do not invalidate a measure simply because they can imagine one less restrictive alternative. Instead, most PA-adept courts insist that policymakers have a duty to consider a range of reasonably available alternatives, and to refrain from selecting the most restrictive among them. These courts also typically require, as a pleading matter, that the rights claimant identify less restrictive alternatives; and the judges will never strike down a law as unnecessary without comparing it to at least one reasonably available alternative. An act that fails either the legitimacy or suitability test is one that contributes nothing to the realization of Public Right. Ends must meet 92 93

Some versions of PA collapse legitimacy and suitability into one stage. Canadian and American judges consider LRM under, respectively, a “minimal impairment” and a “narrow tailoring” requirement.

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the dictates of the UPR, and any limitation of a right through means that are not rationally connected to a legitimate end must constitute a per se infringement of freedom. These same considerations suggest that the use of means other than those that are least restrictive on freedom must also qualify as a violation of the UPR: no official possesses the authority to restrict freedom further than is necessary to secure the external freedom of all. Thus, irrespective of the importance of the end being pursued, a public act that fails an LRM test is one that cannot be justified under a system of Public Right. In the proportionality world, the analysis cannot end with necessity. If it did, a law that imposed an unjustifiable burden on the rights holder, but was nonetheless narrowly tailored, would prevail. A fourth stage, balancing in the strict sense, is required. In it, the court assesses, in light of the facts or policy context, the act’s marginal addition to the realization of Public Right against the marginal injury incurred by infringement of the right. Thus, one core function of balancing is to ensure that a relatively small or even trivial addition to the public weal does not, say, curtail a right in a significant way. Judges that rely heavily on this stage (e.g., members of the German Federal Constitutional Court (GFCC) and the Israeli Supreme Court) also emphasize that balancing allows them to “complete” the analysis in order to check that no factor of significance to either side has been overlooked in previous stages.94 Consider the US Supreme Court’s ruling in United States v. O’Brien (1968).95 Mr. O’Brien had burned his draft card, in violation of federal statutes, while protesting the Vietnam War and military conscription. The Court took no firm position on the question of whether O’Brien’s “wordless” act was protected by the First Amendment; the answer to that question was left incomplete in comparison to what is required under PA. Instead, the Court formulated the following test: [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

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Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence,” University of Toronto Law School, 57 2 (2007), 383–397; Mathews and Stone Sweet, “All Things in Proportion?,” 106–108. United States v. O’Brien, 391 US 367 (1968).

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On the basis of this test, the Court upheld O’Brien’s conviction since the draft card fulfilled various administrative functions. The judgment, however, concluded in deafening silence on the question of the relative importance of the government’s interest and O’Brien’s “alleged” speech right. Under PA, the judge would have been required to give an answer to that question, in the balancing stage. The Court, however, marched through the test just announced – which embodies the first three stages of PA – while saying virtually nothing about the First Amendment. It is worth emphasizing that O’Brien still may have lost the case under a fullfledged version of PA. But an additional layer of reasons would have been added, thereby completing the analysis.96 It makes little sense to discuss the balancing stage without invoking, from the outset, the formulations of Robert Alexy97 and Aharon Barak98. Alexy99, synthesizing the jurisprudence of the GFCC, proposes the Law of Balancing: The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.

For his part, Barak100 elaborates the Rule of Balancing: As the importance of avoiding the marginal limitation on the constitutional right and the likelihood of the limitation coming to pass increase, so do the required importance of the marginal benefit of the public interest or the competing private right and the required likelihood of that benefit being realized.

Barak101 insists that the balancer must take account of the significance of the right in context: The weight that is attached to the side of the rights on the scale is derived not only from the importance of the right but also from the extent of its limitation, its intensity, and its dimensions. A limitation nearing the margins of the right differs from a limitation nearing its core. A temporary limitation is less severe than a permanent one. Thus, consequences of limitation of a human right and its effect on those entitled to the right affect the weight of the right itself. 96 97 98

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United States v. O’Brien, 391 US 367 (1968). Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002). Barak, “Proportionality and Principled Balancing,” Law & Ethics of Human Rights, 4 1 (2010), 1–16; Barak, “Proportionality.” Alexy, A Theory of Constitutional Rights, Postscript, 390–425. Barak, “Proportionality,” p. 746. Barak, “Proportionality and Principled Balancing,” 10.

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Both formulations stress the duty of the judge to engage in relational analysis of the values in tension, in the context of a specific dispute. And both will drive the judge toward an answer to the dispositive question: does the law under review burden liberties too much, given our constitutional commitment to rights? A Kantian reading would convert these formulations into strictures for ensuring that the law can be justified under the UPR.102 As Barak103 suggests, balancing is only a metaphor for what judges do at this stage: To speak of “balancing” is to speak metaphorically, but the mode of thought is normative. It is based on legal rules that determine when a proper purpose may be realized despite the limitation on a constitutional right.

Balancing in the strict sense bears no relation to cost-benefit analysis in a crude utilitarian sense which, in our view, would be anathema to a Kantian approach. Proportionality balancing involves assessing the relationship between the most important requirements of the constitutional order, both of which are Kantian values: (i) the freedom of every individual, embodied in the individual right at issue, and (ii) the duty of state officials to achieve Public Right, to be (partially) effectuated through the realization of the governmental purpose at stake. In the Kantian model, these requirements are not strictly incommensurate: both are subsumed by the UPR, that is, by the concept of freedom within a Rightful civil condition. Balancing comprises a holistic evaluation of whether, given the circumstances and our constitutional commitments, officials are justified in taking a measure, given their duty to create a system of reciprocal constraints on freedom. 102

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A skeptic might deny that (i) balancing and (ii) the progressive elaboration of rights can have any place in a Kantian system of justice. If, as Kant famously claimed, the fundamental content of morality is given a priori, then why do we need judges to fill out rights, across time, through judicial elaboration? Our response is twofold. First, Kant followed a larger natural law tradition in understanding the a priori component of morality (or natural legality) as inherently abstract and indeterminate, when considered alongside concrete cases; See Martin Stone, “Legal Positivism as an Idea about Morality,” University of Toronto Law Journal, 61 (2011), 313–341. The very purpose of public law, the philosopher insisted, is to constitute a Rightful condition, by giving those a priori standards determinate content; Kant, The Metaphysics of Morals, 6: 312. Second, Kant explicitly recognized that abstract norms do not interpret and apply themselves in the myriad contexts that could give rise to a legal conflict, while arguing that neither a legislator nor head of state should be the judge of its own law. See also fn. 110. Barak, “Proportionality,” p. 745.

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The “balancing” inquiry attends to the propriety of a particular means of advancing public interests – of constituting Right – not a consequentialist operation of weighing interests against one another. Rather than relying on a metric of evaluation exogenous to the system of Right, or attributing atomistic weights to principles, the Kantian account we have developed considers all dimensions of importance within a single universal system of freedom. A law that is judged to be proportional comports with the UPR and can thus be credited as a contribution to Public Right. A law that is disproportionate makes no such contribution and is therefore invalid. Kant insisted that a system of Public Right could only be produced through a sustained process of practical reasoning to render the determinable more determinate, not to discover answers to questions that are beyond the realm of reasonable disagreement104. In Barak’s formulation, the judge’s task is to determine whether a law falls within a zone of proportionality; in Kantian terms, the question is whether the law can be justified under the UPR, which is coterminous with that zone. The outcome will depend on an assessment of the severity of the infringement in context, whether the activity or condition covered by the right falls within the right’s core or periphery and the availability of alternative measures, all of which demand sensitivity to empirical circumstances, as they change over time.105 We find Barak’s exposition of balancing Kantiancongruent. Its function is to adjust the aspects of the constitutional order in relation to one another, on an ongoing basis, so that they fit together into a coherent whole. PA has many critics. Some see potential dangers: judges may use PA as a cover for deferring to legislators and executives, or for balancing rights away. Others see PA as being too restrictive of policy discretion, inevitably casting judges as masters of the policy processes under review. Proponents defend proportionality against attacks from both sides.106 It is important to emphasize that PA is an analytical procedure. PA does not, in itself, produce substantive outcomes; and it does not tell judges how important any two contending values and interests are. Instead, PA organizes the systematic review of justifications for government measures that would burden the exercise of a right. Judges also use PA to 104

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Kant, “Toward Perpetual Peace,” 8: 366–367, 386; Kant, The Metaphysics of Morals, 6: 230–231, 317–320, 340–349, 354–355. Barak, “Proportionality.” Stone Sweet and Mathews, “Proportionality and Global Constitutionalism”; Mathews and Stone Sweet, “All Things in Proportion?”

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build secondary doctrine: the argumentation and justification frameworks that will govern adjudication (and hence policymaking) in any domain covered by a specific right. As we argued in the Section VII, a meta-rule – melding the entitlement to justification and the reasongiving requirement – is a necessary component of any effective system of constitutional justice. Adopting PA places this meta-rule at the very heart of adjudicating rights and the enforcement of the UPR.

IX Excluded Reasons and Absolute Rights PA neatly fits the demands of the UPR and structures how judges will fulfill their fiduciary obligations. Yet, with regard to the first stage of the framework – legitimate purpose – Kant’s ideas arguably point away from necessity analysis and balancing, and toward a mode of decision-making in which the judge’s principal task is to exclude illegitimate justifications for limiting freedom, thereby determining the scope of the right. As noted, when adjudicating qualified rights, most skilled judges treat the legitimacy prong of PA in the style of a threshold inquiry: if the constitution has not authorized the state to pursue such a purpose, then the claimant must prevail on the basis of little more than a prima facie demonstration that a right is in play. Except in the most egregious cases, the law under review will pass this prong of PA without much ado. After all, the competence to regulate is conferred on officials by the rights provision itself through a limitation clause. Without further contextual clarification, the outcome conforms to Kantian dictates: officials may hinder the freedom of any rights holder but only to secure the external freedom of all. If a system contains a general right to liberty, then officials may act only to secure the external freedom of all.107 Further, officials may also routinely claim that the act under review had been designed to fulfill a right, thrusting the court into a balancing posture. In the proportionality world, judges and scholars typically downplay the importance of proper purpose inquiry, deploying it most often to pay their respects to officials’ good faith efforts in pursuit of valid public interests, saving any censure for later stages. 107

In a widely copied formulation, the German Basic Law announces a general right to liberty in the guise of “the right to freely develop one’s personality” (Art. 2 (1) GG) which, the German Federal Constitutional Court insists, covers virtually anything an individual would want to do. The leading case is Elfes, 6 BVerfGE 32 at 36 (1957), which affirms a right to a “general human freedom of action” that encompasses all activities consistent with the rights of others.

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This de facto insouciance deserves more scrutiny. Simplifying a complex issue, a more robust, sustained inquiry into legitimate purpose could well subsume the types of reasoning found in subsequent stages. Concrete constitutional guarantees can only be limited for the sake of freedom; and ends that are exogenous to the system of Right are impermissible bases for restricting freedom. Because the Kantian judge is under a clear duty to filter out such ends, one should ask why the legitimate purpose test is not sufficient in itself, that is, why supplement it with three subsequent stages? If judges focus more attention on proper purpose, treating the legitimacy prong as a general test of legality, then it would likely evolve as the privileged site for the elaboration of categorical, means-based restrictions. As it is, suitability and necessity analysis (both which help courts “smoke out” illicit motives) and balancing (through which courts assess the proportionality of marginal benefits and harms) do the work that, arguably, could be done in proper purpose analysis. In the proportionality world, one typically asks (i) whether a purpose is constitutionally legitimate in the sense that the aim pursued can be subsumed under a legal power that state officials rightfully possess. But one could also wonder (ii) if a purpose is constitutionally legitimate only once the judge finds that the end is itself a sufficient reason for restricting a right in the first place. The latter situation requires categorical reasoning, not just pro forma box ticking. To bring the point into focus, consider the well-known trolley problem, which involves two scenarios.108 In the first, a runaway trolley will kill five people unless a bystander switches the trolley onto another track where, foreseeably, it will kill only one person. In the second, a runaway trolley will kill five people, unless a bystander pushes an enormous man in front of it, as a means of triggering the emergency break. The standard intuition associated with this pair of cases is that diverting the trolley is permissible but pushing the man in front of the trolley is impermissible.109 A robust legitimate purpose test would ask whether saving the lives of the five could constitute a legitimate reason for violating the right of the man against being used as a means. On the Kantian view, the answer to this question is clearly “no”; each person possesses an entitlement to be one’s own master, and not to be used for another’s ends. This secures the man’s right against being conscripted into the purposes of the five, no 108 109

Judith Jarvis Thomson, “The Trolley Problem,” Yale Law Journal, 94 (1985), 1395–1415. Fiery Cushman, Liane Young and Marc Hauser, “The Role of Reasoning and Intuition in Moral Judgments: Testing Three Principles of Harm,” Psychological Science, 17 (2006), 1082–1089.

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matter how urgent their situation. The crucial point is that the analysis proceeds by way of categorical reasoning, not through assigning weights to benefits and harms, and then balancing. One powerful defense of PA, however, rests on the distinction between absolute and qualified rights.110 Once the constitution or judge classifies a right in absolute terms, it is removed from the domain of proportionality. Famously, the GFCC refuses to apply PA to dignity on grounds that are strikingly Kantian. In the Life Imprisonment Case (1977), adjudicating whether life imprisonment is lawful under the banners of retribution and deterrence, the Court held that: It is contrary to human dignity to make the individual the mere tool (blosses Objekt) of the state. The principle that “each person must always be an end in himself” applies unreservedly to all areas of the law; the intrinsic dignity of the person consists in acknowledging him as an independent personality.111

The GFCC sidesteps the issue raised here – whether the policy reflects an improper purpose – by categorizing the dispute as directly involving the individual’s dignity, which prohibits PA altogether. In another full-fledged dignity ruling, Aviation Security (2006), the GFCC invalidated, on dignity grounds, a statute that would have authorized the interior minister to shoot down an airliner that had been hijacked by terrorists with the intention of using it as a weapon against the population.112 The Court’s rationale is overtly neo-Kantian: to allow an official to intentionally terminate the lives of the innocent persons on board would convert those persons into objects of the state.113 In cases in which dignity is directly and fully implicated, the court applies PA. The issue of whether courts should develop a more robust application of the legitimate purpose test deserves more consideration. In the proportionality world, however, no court has moved in this direction in any consistent way. Such a move might very well lead to the migration of balancing 110

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A second defense would emphasize the advantages of “as-applied” review: judges are often called upon to judge statutes in light of circumstances that the legislature had not fully contemplated. In such situations, it would be needlessly provocative to assert that legislature had pursued an improper purpose. In proportionality-based systems, courts typically run each case based on new facts and circumstances through PA; past acts and decisions are typically treated as relevant but not dispositive. Life Imprisonment Case, 45 BVerfGE at 228 (1977). Aviation Security, BVerfGE, 1 BvR 357. This is not to say that the GFCC reaches the conclusion that Kant would have reached in either case. We do not offer a general excursus on the casuistic side of Kant’s legal philosophy.

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considerations into deliberations on proper purpose, a type of “hydraulic effect.”114 While the US Supreme Court sometimes adopts a categorical posture, for example, it often engages in balancing to produce the categorical rule.115 Put in terms of PA, balancing and necessity reasoning would likely flow into the analysis of proper purpose. Such an outcome would undermine transparency, as well as the tribunal’s capacity to express respect for officials precisely where it is due.

X Proportionality and Judicial Supremacy The mission of the Kantian trustee is to supervise the rights-regarding acts of all other officials, to assess reasons officials give when they burden any right, and to invalidate laws when these reasons are insufficient. Insulating the court’s rulings from override – by those over whom the court exercises authority – will be an important determinant of the system’s effectiveness.116 Judicial supremacy raises well-worn legitimacy concerns, including the so-called countermajoritarian difficulty: the capacity of the trustee to generate policy outcomes that elected officials would not have produced on their own, but which are difficult or impossible to reverse. Under such conditions, the override or revision of important rulings on constitutional rights is, in practice, only possible through subsequent rounds of adjudication. The court that adopts PA – a highly intrusive standard of review – makes its formal supremacy a mundane fact. Indeed, the necessity and balancing prongs position a trustee court to be the supreme lawgiver, albeit through the adjudication of disputes that arise within parameters set by prior acts of law-making and the constitution. While we recognize that supremacy raises deep normative issues, Kantian theory is largely immune to countermajoritarian objections.117 114

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Hydraulic dynamics emerge when a court shifts burdens within balancing frameworks. As Han in David Han, “The Mechanics of First Amendment Audience Analysis,” William and Mary Law Review, 55 1 (2014), 1716, puts it, “Legal doctrine is often hydraulic in nature; whenever the rigidness in one doctrinal area exerts pressure on courts’ decision-making, that pressure often seeks release in other areas of the doctrine.” T. Alexander Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal, 96 (1987), 943–1005; Mathews and Stone Sweet, “All Things in Proportion?” Stone Sweet, “Constitutional Courts.” For example, those marshalled by Jeremy Waldron, “Some Models of Dialogues between Judges and Legislators,” Supreme Court Review, 23 (2004), 7–47; Jeremy Waldron, “The Core of the Case against Judicial Review,” Yale Law Journal, 115 (2006), 1346–1406, and by those who worry that supremacy institutionalizes the so-called majoritarian difficulty, surveyed by Barry Friedman, “The History of the Countermajoritarian Difficulty, Part

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Kant gives freedom – rights – pride of place, not the will of a transient political majority. For Kant, representation and accountability demand more than occasional consultation of the People as an electoral body. It requires accountability to the People considered as individual citizens, whose entitlements to rights are unimpeachable, and to the People as constitutional legislators. To the extent that the People have legislated supremacy, placing the parliament under the control of a constitutional court, normative arguments grounded in the dogmas of legislative sovereignty are beside the point. We have not argued that courts are the repository of some type of special wisdom when it comes to enforcing rights. We do claim that trusteeship – supremacy constrained by robust fiduciary obligations – will optimize the polity’s capacity to progress in its goal of achieving a Rightful constitutional condition. As an empirical matter, modern systems of constitutional justice are, in fact, characterized by judicial supremacy.118 How effective systems of constitutional justice actually operate should bear on the normative debate. Three points, each of which is based on strong empirical findings, deserve strong emphasis. First, the most effective constitutional courts are those able to draw other policymakers, and at times the citizenry, into the discourse they constitute and curate as a jurisprudence of rights.119 If officials and citizens ignore, or conspire to undermine the consequences of, its rulings, then trustee courts will fail. Second, the ongoing use of PA creates an interface for deliberative engagement between the constitutional court and all other officials who make and enforce law.120 Successful trustee courts use PA not to bludgeon officials into submission but to construct (often intricate) “dialogues” with legislatures, executives, and the ordinary courts concerning the scope of their own law-making authority. These same courts have strongly embraced PA, an operating system for dialogue that shapes the evolution of policy and the content of the rights-based constitution.121 Third, legislatures and executives are unlikely to render a charter of rights effective on their own without having their decision-making placed in the shadow of

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One: The Road to Judicial Supremacy,” New York University Law Review, 73 2 (1998), 333–433. Stone Sweet, “Constitutional Courts.” Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000). Stone Sweet and Mathews, “Proportionality and Global Constitutionalism,” 104–160. Stone Sweet, Governing with Judges; Janet Hiebert, “Governing Like Judges?,” in Tom Campbell, Keith Ewing, and Adam Tomkins (eds.), The Legal Protection of Human Rights (Oxford: Oxford University Press, 2011), pp. 40–63.

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a trustee court. This last point firmly applies to the new commonwealth model.122

XI The Multilevel Architecture of Right Right, Public Right, International Right, and Cosmopolitan Right share certain micro-foundations in common, and each purports to resolve the same generic problem. Katrin Flikschuh puts the point neatly: Kant does not share the widespread view that we can turn our attention to the issue of cosmopolitan Right only after we have settled the matter of domestic justice. The grounds of cosmopolitan justice are identical with those of domestic justice: both follow from the claim to external freedom of each other under conditions of unavoidable empirical constraints. Instead of distinguishing between different theories of justice for the 122

The main proponent of the argument to the contrary is Waldron, “Some Models of Dialogues between Judges and Legislators,” who rests his case on one UK episode, involving the regulation of abortion. In contrast, compare the situation under the Canadian Charter of Rights (1982–present) with that under the Canadian Bill of Rights (1960–1982). As Gardbaum, The New Commonwealth Model of Constitutionalism, p. 99, puts it: “the Canadian Bill of Rights is almost universally thought to have been ineffective because of the courts’ tendency to interpret its impact and their power through the traditional lens of parliamentary sovereignty, thereby limiting the scope and effectiveness of the rights protected.” Under the “New Commonwealth Model,” the legislator is given the “final word” when it comes to the enforceability of any statutory provisions that supreme courts declare to violate the Charter of Rights (Canada), or to be incompatible and/or inconsistent with human rights statutes (New Zealand, the UK). Gardbaum and Hiebert have undertaken the most intensive empirical research on the effects of these new rights instruments. Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism,” International Journal of Constitutional Law, 8 2 (2010), 172–173, argues that “there is consensus that rights have been better protected” in these countries “since adopting the new model and abandoning traditional parliamentary sovereignty.” But he also states that the “record suggests that judicial supremacy is not necessary for such protection,” insofar as there is “no significant sacrifice” of rights protection to pay for democratic legitimacy. Leaving aside the indeterminacy of “significant sacrifice” standard, this type of argument is not available in a Kantian system; either a statute complies with the UPR or it does not. Hiebert, who has focused on the capacity of parliament to debate rights meaningfully on their own, sums up the empirical record as follows: “Research in all three jurisdictions suggests that the legal costs [the risk of judicial censure] are more persuasive than parliamentary criticism when encouraging governments to take rights seriously. . . . Unless parliamentary pressure is sufficient to threaten defeat of a bill, governments have generally been unwilling to amend bills.” Hiebert, “Governing Like Judges?,” p. 61. With regard to the UK Human Rights Act (HRA), Janet Hiebert, “Governing under the Human Rights Act: The Limitations of Wishful Thinking,” Public Law, 1 (2012), 44, concludes that “the idea of [the HRA] facilitating a culture of rights, at least as it pertains to Westminster, is likely wishful thinking.”

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The implication for any Kantian system of constitutional justice should be clear: for all “human relations,”124 at every level of governance, the UPR constitutes a foundational criterion of the legitimacy of all law. The UPR lies at the core of any Rightful constitutional condition for two reasons. First, it complies with, and flows outward from, even more primordial principles: Innate Freedom and the Internal Duty of Rightful Honor. Second, Kant casts the UPR as a meta-norm: all officials are under a duty to make, interpret, and apply law in conformity with the UPR, and any act that conforms to it commands obedience. In Kelsenian terms, the UPR gives to the Grundnorm substantive content, in the form of a command. In Hartian terms, the duties that inhere in the UPR take primacy over all other secondary rules.125 Extending our account to a transnational system of rights protection is, therefore, relatively straightforward. To illustrate, consider the European Convention on Human Rights (ECHR). The states signatories placed the supreme constitutional value – freedom – in trust, in the form of a charter of human rights. As agents of (and analogous to) the People at the domestic level, they have assumed the role of the constitutional legislator. With Protocol No. 11 (1998), the Contracting States created a version of trusteeship. The European Court protects the rights of individuals within and beyond the state: a “justice” function. It supervises the rightsregarding activities of all national officials: a “monitoring” function. And it authoritatively determines the content and scope of convention rights on an ongoing basis: an “oracular” function.126 Kant does not, however, apply the “idea of the original contract” with respect to interstate relations. Instead, he asserts that states (i) are under a moral duty to pursue the construction of a Rightful condition, and (ii) will be more likely to succeed if in league with one another. In “Perpetual Peace,”127 Kant counselled member states of leagues to retain their 123 124

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Flikschuh, Kant and Modern Political Philosophy, p. 170 (emphasis in original). Howard Williams, “Kantian Underpinnings for a Theory of Multirights,” in Andreas Føllesdal and Reidar Maliks (eds.), Kantian Theory and Human Rights (New York: Routledge, 2015), pp. 8–26. Herbert Hart, The Concept of Law (Oxford: Clarendon Press, 1994), pp. 92–4. Stone Sweet, “A Cosmopolitan Legal Order.” Kant, “Toward Perpetual Peace,” 8: 354–358.

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sovereignty, at least during the foundational period. The regime’s organs should not exercise direct, juridical authority within the states that make up the federation. Among other primary tasks, the Strasbourg Court enforces the absolute prohibitions contained in Articles 2 and 3 ECHR; and it adjudicates the qualified rights of Articles 7–11 ECHR, according to the proportionality principle, while requiring all domestic courts in the regime to use PA. It is the authoritative interpreter of the Convention, and its rulings are strongly insulated from reversal. But the Court does not possess the power to invalidate national law that conflicts with ECHR rights, a competence that falls within the realm of domestic justice. As argued in “A Cosmopolitan Legal Order,” a multilevel system of justice was constituted in Europe through the combined effects of (i) Protocol No. 11, which confers on all individuals the right to petition the European Court after exhaustion of national remedies, and (ii) the incorporation of the Convention ways that enable the courts to enforce it directly, as national law.128 As a result, the interface between domestic and transnational systems of justice has become increasingly articulated. At the same time, it is obvious that the European Court’s effectiveness depends critically on the performance of domestic trustee courts. Kant himself pointed to the dynamic relationships – interactive “feedback” effects – of the different levels of Right.129 These effects could “undermine” progress toward a Rightful condition and might even lead the process to “collapse.” But they could also reinforce it. Once formerly despotic states become republican, others may choose to follow, as the benefits of doing so become apparent. And a Rightful condition beyond the state can help support the consolidation of Public Right at the domestic level. Indeed, Kant imagines the establishment of “a republicanism of all states, together and separately,” under a shared Doctrine of Public Right.130 In any event, the pathways through which perpetual peace and a Rightful condition can be achieved are likely to be complex, nonlinear, and fraught with political obstacles. “As Kant was often to note,” Howard Williams reminds us, “the human race does not progress the easy way.”131 It only adopts rational principles for governing its social relations after a hard and frequently violent struggle with itself and its worst characteristics. Kantian constitutional theory is, therefore, powerfully integrative, requiring us to consider, simultaneously, the 128 129 130 131

Stone Sweet, “A Cosmopolitan Legal Order.” Kant, “Toward Perpetual Peace,” 8: 356. Kant, The Metaphysics of Morals, 6: 354–355. Williams, “Kantian Underpinnings for a Theory of Multirights.”

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cosmopolitan nature of constitutional rights and the constitutional grounds of the cosmopolitan.132

XII Conclusion This chapter has developed an account of a Kantian system of constitutional justice, the persuasiveness of which will depend on the acceptance of an interlocking set of claims: (i) that the People have placed their freedom in trust, in the form of a charter of rights; (ii) that rights provisions instantiate, as positive law, the foundations on which the external freedom of all persons may be constructed; (iii) that public officials are under a duty to make and enforce law in ways that fulfill the rights of persons that come under their authority; (iv) that an omnilateral trustee, a constitutional court, supervises the law-making activities of officials, through the enforcement of the Universal Principle of Right; and (v) that the UPR, as operationalized through the proportionality principle, lays down the basic criterion for the legitimacy of all law. These are the features, we have argued, that will maximize a polity’s capacity to achieve a Rightful constitutional condition. 132

Garrett Wallace Brown, Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution (Edinburgh: Edinburgh University Press, 2009); Mattias Kumm, “Constituent Power, Cosmopolitan Constitutionalism, and Post-Positivist Law,” International Journal of Constitutional Law, 14 (2016), 697–711.

8 Laws, Norms, and Public Justification: The Limits of Law as an Instrument of Reform jacob barrett and gerald f. gaus

I Does Public Justification Undermine Law as an Instrument of Justice? Jeremy Waldron famously declares that liberals “are committed to a conception of freedom and respect for the capacities and the agency of individual men and women,” commitments that “generate a requirement that all aspects of the social world should be acceptable to or capable of being made acceptable to every last individual.”1 This commitment to the public justification of all aspects of our social world – and most obviously to the public justification of the law2 – strikes many as an obstacle to improving the justice of the social order.3 Suppose an enlightened majority secures control over a national legislature, such as the US Congress. As thoughtful citizens convinced that they possess the most reasonable view of justice, the new majority seems poised to enact legislation that will enhance justice and better promote fair cooperation. Or suppose an enlightened supreme court orders a controversial interpretation of a law, seeking to promote greater justice. But, alas, a significant minority of citizens cannot 1

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Jeremy Waldron, “Theoretical Foundations of Liberalism,” in Liberal Rights: Collected Papers, 1981–1991 (Cambridge: Cambridge University Press, 1993), pp. 36–37. For the legislation to be within the ambit of public reason, John Rawls would hold that it must concern matters of basic justice or constitutional essentials, or at least border on such areas, though he acknowledges that “it is usually highly desirable to settle political questions by invoking the value of public reason.” Rawls, Political Liberalism, expanded edition (New York: Columbia University Press, 2005), p. 215; see also pp. 134–140. Others, such as Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011), pp. 490–497, and Jonathan Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011), chap. 9, extend the requirement of public justification to legislation in general. We are focusing on this more expansive requirement. See, e.g., Steven Wall, “On Justificatory Liberalism,” Politics, Philosophy & Economics, 9 (2010), 136 ff.

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see how this legislation or interpretation is justified – they reasonably reject it as unreasonable, as unjustified to them. It would seem that commitment to public justification imposes a heavy cost on our enlightened majority or court: They must abjure the use of the law that would effectively move their society toward what they are convinced would be greater justice until the reasonable minority can endorse the law. Public reason liberals sometimes respond by insisting that the requirement to treat others with respect simply outweighs these costs. As Charles Larmore puts it, “To respect another person as an end is to insist that coercive or political principles be just as justifiable to that person as they are to us. Equal respect involves treating all persons, to which such principles are to apply, in this way.”4 Perhaps.5 But many press the rejoinder: Is respect of such supreme importance that it always outweighs the pursuit of greater justice (at least as the majority sees it)? The question seems to highlight the heavy “strains of commitment” of public justification: To endorse public justification seems entirely to preclude using the law to promote greater justice whenever it is not justifiable, say, to a reasonable minority.6 This raises what might be called the public justification fetish worry: Surely if a law is very important, then appealing to a normative standard that requires public justification for any law looks like placing overwhelming weight on one value. Perhaps it would be a good thing to show that everyone endorses a new law. But can this really be a necessary condition for the permissibility of using the law to pursue greater justice?7 Rather than directly confronting this question, here we pursue a different tack: We call into question the theory of law the question presumes. Underlying this worry is a view of the law as a largely autonomous tool for securing justice and fair cooperation: Critical social change can be secured simply by enacting just legislation enforced by the state. Because it is assumed that a just society can be brought about through the enforcement of controversial laws, it is concluded that the public justification requirement, which poses barriers to such legislation, 4 5

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Charles Larmore, “Political Liberalism,” Political Theory, 18 (1990), 349. For some doubts, see Gerald Gaus, “Respect for Persons and Public Justification” in Richard Dean and Oliver Sensen (eds.), Respect for Persons (Oxford: Oxford University Press, forthcoming). On the idea of the strains of commitment, see John Rawls, A Theory of Justice, rev. edn. (Cambridge: Harvard University Press, 1999), pp. 153–154. See further Gerald Gaus, “On Theorizing about Public Reason,” European Journal of Analytic Philosophy, 9 (2013), 64–85.

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is an obstacle to achieving such justice. Controversial laws, it is supposed, will be effective because the minority, who would otherwise act against justice, will be deterred by the threat of punishment, producing what Immanuel Kant calls “external” just relations between people (though not necessarily moral motivations).8 We shall argue here that this theory of law, legal centralism, misconstrues the conditions for effective legal regulation and, therefore, the way in which law can be an instrument of greater justice. Once we take a more adequate view of legal regulation, we shall see that, so far from being an obstacle, public justification is an important tool of effective social reform. Section II briefly describes two versions of legal centralism: punishment-focused and moral-focused. Section III commences our case against the former, sketching an alternative “normative perspective” according to which legal compliance depends more on social norms and personal moral convictions than on the threat of punishment.9 Section IV turns to moral-focused legal centralism, a more nuanced view that acknowledges the relevance of moral convictions to legal compliance yet still ignores social norms. Against this position, we argue that laws effectively regulate behavior when they correspond to, or at least do not stray too far from, social norms, but are typically ineffective and sometimes counterproductive when they sharply conflict with them. We then (Section V) more carefully consider the role that people’s moral convictions play in explaining both the stability and change of social norms, arguing that stable norms and laws must approximate public justification: The overwhelming majority of the individuals governed by norms must endorse them from their own moral perspectives. Section VI ties these threads together, showing how they bear on normative questions concerning public justification. Section VII 8

9

External relations, not motivations, Kant insists, are the proper purview of political philosophy. Immanuel Kant, The Metaphysical Elements of Justice, John Ladd (trans.), 2nd edn. (Indianapolis: Hackett, 1999), p. 29. Although we distinguish social norms from (personally held) moral convictions, we do not distinguish social norms from socially embedded moral norms. In other contexts, this latter distinction is important. See, e.g., Geoffrey Brennan, Lina Eriksson, Robert E. Goodin, and Nicholas Southwood, Explaining Norms (Oxford: Oxford University Press, 2013), pp. 57 ff; Jean-Philippe Platteau, Institutions, Social Norms and Economic Development (Amsterdam: Harwood Academic Publishers, 2000), pp. 291 ff. As Bicchieri observes, her notion of social norms is essentially what Hume means by “justice.” Cristina Bicchieri, The Grammar of Society: The Nature and Dynamics of Norms (Cambridge: Cambridge University Press, 2006), p. 21; cf. Gaus, The Order of Public Reason, pp. 2 ff., 163 ff.

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concludes by reconsidering the extent to which law can serve as an instrument of social reform and by briefly surveying some of the other instruments in the social reformer’s toolbox.

II Two Varieties of Legal Centralism 1 Punishment-Focused Centralism According to what we call punishment-focused legal centralism, a society’s laws are its chief means of regulating social relations, and they influence behavior primarily through the threat of punishment.10 Laws are effective to the extent that those who would otherwise engage in unlawful behavior are deterred by coercive threats. If our goal is to prevent a certain form of harmful or unjust behavior, we ought therefore to criminalize it. If this behavior persists despite its criminalization, the explanation must be that violators do not sufficiently fear punishment. And if this is the problem, the solution is straightforward: We must either increase the severity of punishment or make enforcement more effective. The law is our primary tool for regulating social behavior and, therefore, for promoting social change. The doctrine of punishment-focused legal centralism is in some ways reassuring yet in other respects rather alarming. Changing social norms and moral convictions is typically a long and difficult process, but changing laws (at least for those with political power) is quick and easy: “While formal institutions can be changed by fiat, informal institutions evolve in ways that are still far from completely understood and therefore are not typically amenable to deliberate human manipulation.”11 Thus, if punishment-focused legal centralism held, behavior could be changed fairly easily through a centralized, top-down process. We could legislate the requirements of justice without having to worry much about moral

10

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The term “legal centralism” is used in various ways: Ours is closest to that employed by Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press, 1994), and Gerry Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” in Carlo Tognato (ed.), Cultural Agents Reloaded: The Legacy of Antanas Mockus (Cambridge: The Cultural Agents Initiative at Harvard University Press, 2017). Douglass C. North, Understanding the Process of Economic Change (Princeton: Princeton University Press, 2005), p. 50. For a recent analysis of the effectiveness of norm change strategies, see Cristina Bicchieri, Norms in the Wild (Oxford: Oxford University Press, 2017), esp. chaps 3–5.

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convictions or social norms. Our only limitation would be the enforcement power of the state. It is likely that no one accepts punishment-focused legal centralism when stated quite so baldly, either as an empirical thesis about effective social regulation or as an attractive picture of social life. Yet it informs a wide range of legal theory, going back at least to Thomas Hobbes, Jeremy Bentham, and John Austin.12 At the heart of legal centralism is the conviction that legal coercion affects behavior far more than other factors, such as social norms and moral convictions, and therefore that increasing fear of punishment is generally the most effective way of modifying behavior – an implication that Bentham appears to accept when he claims that attaching more severe and certain punishments to more “mischievous” crimes will “induce a man to choose always the least mischievous of two offenses.”13 In addition to the severity and certainty of punishment, Bentham does acknowledge that “there may be a few other . . . considerations which may influence, in some small degree, the demand for punishment.”14 That punishment is “particularly well calculated to answer the purpose of a moral lesson” is one, though even then, this can only justify an increase in punishment that “stretch[es] a little beyond that quantity which, on other accounts, would be strictly necessary.”15 This is one of Bentham’s thirteen rules pertaining to legal punishment, and the only one that makes any reference to moral convictions or social norms.16 Tellingly, Bentham includes it in the class of rules about which “it may be doubted whether they be worth putting on a level with the others.”17 The law and economics approach provides a contemporary example. On Gary Becker’s analysis, “A person commits an offense if the expected utility to him exceeds the utility he could get by using his time and other 12

13

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Hobbes insists that the bonds of obligation “have the strength, not from their own nature, but from fear of some evil consequence upon rupture.” Thomas Hobbes, Leviathan, Edwin Curley (ed.), (Indianapolis: Hackett, 1994), p. 81. In Austin’s Hobbesian theory of law as command of the sovereign, “command,” “duty,” and “sanction” are different expressions of the same idea. H. L. A. Hart, “Introduction,” in John Austin, The Providence of Jurisprudence Determined (London: Weidenfeld and Nicholson, 1954), pp. 17–18. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Mineoloa, NY: Dover, 1823), p. 181. Ibid., p. 184 (emphasis added). Ibid. Ibid., chap. 14. Ibid., p. 184.

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resources at other activities.”18 In itself, this is innocuous: An argument in a utility function could be moral, or reflect sensitivity to social norms.19 Yet while Becker acknowledges that his “approach implies that there is a function relating the number of offenses by any person to his probability of conviction, to his punishment if convicted, and to other variables, such as the income available to him in legal and other illegal activities . . . and his willingness to commit an illegal act,”20 the role of a nonpunishment or income-related willingness to violate a law in the model is negligible. Individuals are assumed to be narrowly selfinterested – people follow the law when it is in their narrow selfinterest to do so. To prevent a behavior, we must ensure that its tangible, material benefits are outweighed by the material costs attached to performing it. We must ensure that “‘crime does not pay’ – in the sense that the marginal income of criminals would be less than that available to them in less risky legal activities.”21 Robert C. Ellickson provides further examples of the view that legal coercion is the chief means of regulating behavior.22 He too traces the view back to Hobbes who “apparently saw no possibility that some nonlegal system of social control – such as the decentralized enforcement of norms – might bring about at least a modicum of order.”23 This is no mere academic dispute. Gerry Mackie laments that “international human rights scorecards count enactment of a criminal prohibition as an achievement . . . using criminalization as the metric of success,” even in cases where criminalization fails to affect behavior.24 Tom R. Tyler points out a similarly worrying tendency in the domestic case. “When policymakers think about how to obtain compliance, they often adopt implicitly an instrumental perspective” according to which “people are viewed as shaping their behavior to respond to changes in the tangible, 18

19

20 21 22 23 24

Gary S. Becker, “Crime and Punishment: An Economic Approach,” Journal of Political Economy, 76 (1968), 176. Norm change is seldom a part of economically informed analysis of regulating social behavior. See David Colander and Roland Kupers, Complexity and the Art of Public Policy: Solving Society’s Problems from the Bottom Up (Princeton: Princeton University Press, 2014), pp. 8, 188 ff. See Cristina Bicchieri, Norms in the Wild (Oxford: Oxford University Press, 2016), pp. 165–167. Becker, “Crime and Punishment,” 177. Ibid., 203. Robert C. Ellickson, Order without Law, pp. 138–140. Ibid., p. 138. Gerry Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” 313.

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immediate incentives and penalties associated with following the law.”25 They therefore wrongly assume, like Bentham, that “increasing the severity and certainty of punishment for committing a crime . . . [is] an effective way of reducing the rate at which the crime is committed.”26

2 Moral-Focused Legal Centralism To be sure, legal centralism is rarely explicitly endorsed in the rather flatfooted form of punishment-focused legal centralism, though its core thesis that social regulation and reform are secured chiefly though legal coercion is alive and well. Contemporary political philosophers tend to better appreciate the role of moral convictions in influencing behavior, endorsing what we call moral-focused legal centralism. This more nuanced doctrine recognizes that individuals are often motivated by moral commitments, and so whether people view a rule as justified or legitimate affects its efficacy and stability. As John Rawls stresses, to secure stability “a just system must generate its own support” – that is to say, “it must be arranged so as to bring about in its members the corresponding sense of justice, an effective desire to act in accordance with its rules for reasons of justice.”27 A society enjoys “stability for the right reasons” only when this is “secured by a firm allegiance to [the] society’s political (moral) ideals and values”; otherwise, once the balance of power shifts, stability will be disrupted.28 Nevertheless, contemporary political philosophers generally continue to embrace the legal centralist’s strong presumption that unjust behavior ought be criminalized as well as their deeper supposition: Questions about which social rules should be institutionalized are exclusively questions about the justification or legitimacy of coercive law (which includes how legal institutions such as the courts ought to operate). On moralfocused legal centralism, although the efficacy and stability of law depend on individuals’ moral views, the law is the focus of social and political philosophy, being accorded a unique regulative role in social life, and the coercive nature of this unique regulator – its nature as a punisher – is its distinctive feature. “Political power is always the coercive power backed by the government’s use of sanctions, for government alone has the authority to use force upholding its laws.”29 Though an improvement 25 26 27 28 29

Tom R. Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990), p. 3. Ibid. John Rawls, A Theory of Justice, p. 230. Rawls, Political Liberalism, p. 459. Ibid., p. 136.

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over the instrumentalism of punishment-focused legal centralism, this moral-focused variant continues to ignore the importance of informal social norms in affecting legal compliance and in directly regulating individuals’ behavior. This, too, as we shall see in Section IV, is a mistake.

III The Normative Perspective Let us commence with punishment-focused legal centralism and its commitment to the instrumentalist view of compliance – espoused by Bentham, Becker, and others – according to which compliance occurs primarily due to the threat of punishment. Though no one would deny that such threats play some role in shaping behavior, proponents of the competing “normative perspective” argue that legal compliance depends more significantly “on what people regard as just and moral as opposed to what is in their selfinterest.”30 Paul H. Robinson explicates this perspective well: More than because of the threat of legal punishment, people obey the law because they fear the disapproval of their social group if they violate the law, and because they generally see themselves as moral beings who want to do the right thing as they perceive it. The normative pressures coming from other people, generally experienced as an external force by the actor, function like the more formal deterrence mechanisms were thought to operate. People obey the social norms of their groups because those groups have rewards to give for doing so, and sanctions for failing to do so . . . . People’s own moral rules and action proscriptions are generally experienced as internal forces; people recognize that they come from the moral rules that they have adopted. Phenomenologically, we all have experienced this sense of obligation to act in a certain way, to avoid harm to another, or to fulfill some commitment we have made.31

While in Section V and Section VI we will see that social norms and moral commitment cannot be quite so neatly separated, the fundamental point of proponents of the normative perspective is that legal obedience depends on social norms and moral convictions more than on the threat of punishment. This is manifestly inconsistent with the claim that that law is the chief regulator of behavior, since it makes the law’s ability to regulate behavior derivative of these others factors. Evidence for the normative perspective on legal compliance is therefore equally evidence against punishment-focused legal centralism. And 30 31

Tyler, Why People Obey the Law, p. 3. Paul H. Robinson, “Why Does the Criminal Law Care What the Layperson Thinks Is Just? Coercive versus Normative Crime Control,” Virginia Law Review, 86 (2000), 1861–1862.

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the evidence is overwhelming. As Tyler points out, “Citizens have been found to obey the law when the probability of punishment for noncompliance is almost nil and to break laws in cases involving substantial risks. Neither form of behavior makes sense from a strictly instrumental perspective.”32 For example, people pay their taxes at significantly higher rates than the instrumental perspective would predict, and anti-drunk driving campaigns decrease drunk driving without affecting individuals’ probabilities of being caught.33 Although Tyler recognizes the role of social norms – a phenomenon he refers to as “group influence”34 – he focuses on individuals’ moral convictions, distinguishing two sorts that are relevant to legal compliance. First, individuals may follow the law because it coheres with their own views on personal morality – with their own view about which sorts of actions are right or wrong. Second, they may view the law as legitimate and therefore “comply with the law because they view the legal authority they are dealing with as having a legitimate right to dictate their behavior.”35 The first provides a motivation to obey (or at least conform to) the law because of its content, the second a motivation to obey independent of its content. Thus, “people who respond to the moral appropriateness of different laws may (for example) use drugs or engage in illegal sexual practices, feeling that these crimes are not immoral, but at the same time will refrain from stealing,” whereas “if they regard legal authorities as more legitimate, they are less likely to break any laws.”36 Tyler cites several previous studies that show a “moderately strong” link between both sorts of moral conviction and legal compliance37 and provides evidence from his now classic Chicago study. The Chicago study measured individuals’ (self-reported) lawabidingness with respect to a range of relatively mundane crimes – speeding, parking illegally, violating noise ordinances, littering, driving under the influence, and petty shoplifting – as well as their (self-reported) attitudes relating to the competing mechanisms of legal compliance posited by the instrumentalist and normative perspectives. In particular, the investigators measured individuals’ beliefs about how likely they were to be punished for breaking particular laws (fear of punishment), the extent 32 33 34 35 36 37

Tyler, Why People Obey the Law, p. 22. Ibid., pp. 22–23. Ibid., p. 24. Ibid., p. 25. Ibid., p. 4 (emphasis added). Ibid., pp. 32–37, esp. tables 3.3 and 3.7.

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to which they thought peers would disapprove of them for breaking those laws (social norms), whether they believed the behaviors those laws prohibited were wrong (personal morality convictions), and whether they believed they had a general obligation to obey the law (legitimacy convictions).38 The study involved 1,575 residents of Chicago in the first wave, and 804 respondents (randomly selected from the first group) in the second; the purpose of the first wave was to measure the extent to which these different attitudinal variables explained differences in legal compliance between individuals, the purpose of the second to measure the extent to which changes in attitudes explain changes in law-abidingness.39 On the basis of both waves of data, Tyler concludes that fear of punishment, social norms, and moral convictions all explain some variance in legal compliance, with moral convictions best explaining such variance, peer disapproval (or social norms) coming second, and fear of punishment last.40 Within the category of moral convictions, both attitudes toward the wrongness of particular actions and to the legitimacy of law in general appear to influence behavior, with the former playing a larger role.41 The Chicago study is only one of a group of studies that have come to essentially the same conclusions. Robinson helpfully summarizes: What is the evidence concerning crime prevention due to fear of social sanction or fulfillment of moral obligation? Harold Grasmick and his associates have done the most sustained work documenting the role of the informal determinants of obedience to the law. Their research consistently finds that both fear of social disapproval and moral commitment to the law inhibit the commission of illegal activity. They comment that their “findings highlight the importance of internal control in producing conformity to the law.” Other researchers reach similar conclusions. Raymond Paternoster and LeeAnn Jovanni conclude that “the greatest effects on delinquent involvement are those from sources of social control.” Robert Meier and Weldon Johnson conclude that “despite contemporary predisposition toward the importance of legal sanctions, our findings are . . . consistent with the accumulated literature concerning the primacy of interpersonal influence” over legal sanction.42

Although fear of legal punishment does play some role in explaining legal compliance, and although there is evidence suggesting that a small subset 38 39 40 41 42

Ibid., chap. 4. Ibid., p. 8. Ibid., p. 45. Ibid., chap. 5. Robinson, “Why Does the Criminal Law Care What the Layperson Thinks Is Just?,” 1862–1863, references omitted.

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of the population may obey the law primarily due to this fear,43 an overwhelming body of evidence indicates that most people follow the law because of their own moral attitudes toward particular laws and toward the legitimacy of laws in general, as well as because of social norms. As William J. Stuntz puts it, “The mass of the population avoids seriously bad behavior not because they know it can be found in [legal] codes, but because they know the behavior is thought to be seriously bad (and only secondarily because seriously bad behavior can often get you thrown in jail).”44

IV Disentangling the Normative Perspective 1 Personal Moral Convictions and Social Norms According to the normative perspective as thus far explicated, the two factors that best explain legal obedience are moral convictions and social norms. Although Robinson notes that these two factors “are analytically and often experientially separable” he suggests that “in the longer term they converge.”45 Sometimes, however, social norms and moral convictions diverge. Examining such cases will help us better understand the respective role of each. Whereas Tyler is concerned with why people obey the law when (and where) they do, Mackie’s focus is on explaining cases (and places) where they do not. More specifically, Mackie’s concern is the failure of attempts to alter harmful social practices via criminalization in the global development context. Practices such as female genital cutting, caste discrimination, and underage marriage have been widely criminalized, but this has had almost no impact on their prevalence.46 This, Mackie claims, is because legal obedience requires more than just the existence of laws, and more than even the existence of legal penalties alongside convergent moral convictions. It requires the presence of social norms. Mackie points to two mechanisms by which social norms may undermine or support the efficacy of laws: “Criminalization fails where there is no social norm of legal obedience, when a new legal norm is too far from 43

44 45 46

See Clemens Kronenburg, Isolde Heintze, and Guido Mehlkop, “The Interplay of Moral Norms and Instrumental Incentives in Crime Causation,” Criminology, 48 (2010), 259–294. William J. Stuntz, “Self-Defeating Crimes,” Virginia Law Review, 86 (2000), 1871–1899. Robinson, “Why Does the Criminal Law Care What the Layperson Thinks Is Just?,” 1862. Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” 313–314 ff.

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a current social norm, or both.”47 In other words, just as Tyler argues that both moral attitudes toward the legitimacy of law in general and toward the moral appropriateness of the actions regulated by particular laws can influence legal obedience, so, too, does Mackie argue that obedience is influenced both by social norms pertaining to legal obedience in general and by those pertaining to the actions governed by particular laws.

2 The Social Norm of Legal Obedience In cases where there is no social norm of legal obedience – either because there exists no norm relating to legal obedience or because a norm of legal disobedience is present – laws tend not to be followed, even in the presence of moral convictions that they ought to be. Any number of standard accounts of social norms point to the possibility of divergence. On the analysis we (and Mackie) favor, a social norm, say, that one ought to follow the law does not depend on a sufficient number of individuals believing that one ought to follow the law: This simply would constitute a large number of people who share the same personal normative conviction. A social norm exists when a sufficient number of individuals have the “normative expectation” that others believe one ought to follow the law, and the “empirical expectation” that others do in fact follow the law.48 Norms thus are constituted by reciprocal normative and empirical expectations among a group of people, and though these may align with individuals’ moral views, they sometimes fail to. In these latter cases, social norms significantly influence behavior, despite the fact that few who are governed by them personally endorse them. Cristina Bicchieri draws our attention to a UNICEF study on violence toward children, which reports both high rates of caregiver disapproval of punishment and of caregiver punishment.49 Similar findings have been reported concerning prison guards.50 To understand this phenomenon, note that social norms tend to influence behavior for two reasons. First, individuals may be motivated to obtain approval or avoid disapproval, either because they intrinsically care what others think of them or because approval and disapproval are 47 48

49 50

Ibid., 315. See Gerry Mackie, “Social Norms of Coordination and Cooperation,” Social Philosophy and Policy, 35 (2018), 77–100; Bicchieri, The Grammar of Society, pp. 8–28. For a different account of social norms, see Brennan et al., Explaining Norms, part I. Bicchieri, Norms in the Wild, chap. 1. Bicchieri, The Grammar of Society, p. 180.

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associated with a gain or loss of reputation, or of valuable social relationships and opportunities. In this case, norms “function like the more formal deterrence mechanisms were thought to operate” by instrumentalists.51 Second, individuals may also view others’ normative expectations as “legitimate” in the sense that they view them as grounding an obligation to comply. In this case, they may be motivated to conform to a social norm regardless of such self-interested considerations.52 Importantly, an individual may accord legitimacy to the normative expectations of others to comply with the norm even when she does not endorse the content of the norm. While, as we argue in Section V, this tends to lessen her devotion to the norm, there is strong evidence that even in these cases social norms can remain effective at regulating behavior, and therefore at maintaining harmful practices even when its participants do not morally endorse the practice. Citing important work by Denis Galligan and Marina Kurkchiyan,53 Mackie argues that this dynamic characterized norms of legal obedience in post-Soviet Europe. As Mackie explains, “For the Soviet regimes . . . law was purely instrumental, based only on threatened and actual punishment. Law was alien and external to the population; the state itself acted arbitrarily and was not constrained by law. Widespread social norms of getting around the law emerged in response, norms of bribery and corruption that would be pathological in better political circumstances.”54 These political circumstances have since changed, but the reciprocal expectations that constitute these norms of “getting around the law” persist. Legal disobedience therefore remains rampant, even though “population surveys and systematic interviews [suggest] that . . . post-Soviet citizens . . . morally endorse the rule of law as much as do their Western European neighbors . . . . If they expected that 51 52

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Robinson, “Why Does the Criminal Law Care What the Layperson Thinks Is Just?,” 1862. Bicchieri, Norms in the Wild, pp. 21–25. This is why purely instrumentalist accounts of social norm compliance fail. See Gerald Gaus, “It Can’t Be Rational Choice All the Way Down,” in Peter J. Boettke and Solomon Stein (eds.), Buchanan’s Tensions: Reexamining the Political Economy and Philosophy of James M. Buchanan (Arlington, VA: Mercatus Center, 2018). Denis Galligan, “Legal Failure: Law and Social Norms in Eastern Europe” and Marina Kurkchiyan, “The Illegitimacy of Law in Post-Soviet Societies,” both of which are in Denis Galligan and Marina Kurkchiyan (eds.), Law and Informal Practices: The Post-Communist Experience (Oxford: Oxford University Press, 2003). Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” 319. See also Daniel Friedman, Morals and Markets (New York: Routledge, 2008), chap. 5.

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enough others would comply with the law, they would abandon bribery and corruption.”55 Individuals thus possess a moral conviction that they ought to obey the law, but nevertheless disobey due to the presence of strong social norms of legal disobedience: Social norms appear to swamp moral convictions. Thus, Mackie argues that “what is needed to overcome a ‘culture’ of legal disobedience is probably not moral reform of the citizenry (and if such reform were needed and did succeed, it still would not be sufficient). What is needed is a shift from reciprocal expectations of disobedience in the community to reciprocal expectations of obedience to the law.”56

3 Specific Norms The case of post-Soviet states provides powerful evidence both against punishment-focused and the more nuanced moral-focused legal centralism. Further evidence of the importance of social norms is provided by cases where a general norm of legal obedience exists, but particular laws are not followed because they conflict too sharply with other social-moral norms. One reason for this is that such laws are rarely enforced; Mackie suggests that this may be the best explanation of why caste discrimination continues in India despite its criminalization.57 Dan Kahan collects a number of other examples of this phenomenon that have occurred in the United States. For example: To change the behavior of men (and women) who have internalized the norm that “no sometimes means yes,” some states have modified their rape laws either to dispense with the common law element of force or to eliminate the “reasonable mistake of fact” defense. Empirical studies suggest, however, that such reforms have little effect on juries, which continue to treat verbal resistance as equivocal evidence of nonconsent, or on prosecutors, who remain reluctant to press charges unless the victim physically resisted the man’s advances. The same story can be told about attempts to crack down on drunk driving and domestic violence. As states adopt more severe laws, police grow more reluctant to arrest, prosecutors to charge, juries to convict, and judges to punish. As a result, such reforms do nothing to reduce the incidence of these offenses . . . [and] may even increase the incidence of such crimes. For example, when a jury in a high profile case acquits a defendant charged with 55

56 57

Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” 320. Ibid. Ibid., 314.

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raping a woman who protested but who didn’t physically resist his advances, the verdict reaffirms the vitality of the norm that “no sometimes means yes,” and thus perpetuates behavior consistent with the norm.58

When laws depart from social norms they are not generally enforced, and this public lack of enforcement may even reinforce the reciprocal expectations that constitute the norm. In such cases, criminalizing a behavior that is permitted (or required) by social norms is not only apt to be ineffective but also counterproductive. It strengthens the very norm it aims to undermine. None of this is to say that punishment is never effective in securing compliance: Rather, the critical finding is that its effectiveness depends on how it aligns with social norms.59 In a series of experiments on trust games, Cristina Bicchieri, Eugen Dimant, and Erte Xiao found that when the person being punished views the punishment as conforming to the normative expectations of others, it tends to significantly modify behavior. In the absence of this normative basis, punishment is unsuccessful, especially when conformity has higher costs.60 This coheres with a large body of evidence gathered over the last twenty years that strongly indicates that when punishment fails to correspond to what people believe are legitimate normative expectations, punishment is either ineffective or generates “antisocial” counter-punishment. As Samuel Bowles and Herbert Gintis stress, effective punishment depends on beliefs about its legitimacy: Unless those to be punished and their friends and allies are convinced that the rule being enforced is legitimate, a punishing action taken as a means to protect social cooperation can lead to weakening it.61 Experimental evidence confirms that attempts to punish readily evoke counter-punishment when the offender does not experience guilt, which is associated with social-moral norm violation.62 58

59

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Dan M. Kahan, “Gentle Nudges vs. Hard Shoves: Solving the Sticky Norm Problem,” The University of Chicago Law Review, 67 (2000), 607. For an excellent overview, see Platteau, Institutions, Social Norms and Economic Development, pp. 290 ff. In recent experiments, Klaus Abbink, Lata Gangadharan, Toby Handfield, and John Thrasher show that punishment can enforce group-destructive social norms. “Peer Punishment Promotes Enforcement of Bad Social Norms,” Nature Communications, 8 609 (2017). Cristina Bicchieri, Eugen Dimant, and Erte Xiao, “Deviant or Wrong? The Effects of Norm Information on the Efficacy of Punishment,” (working paper, Centre for Decision Research and Experimental Economics, University of Nottingham, 2017), available at www.nottingham.ac.uk/cedex/documents/papers/cedex-discussion-paper-2017-14.pdf. Samuel Bowls and Herbert Gintis, A Cooperative Species: Human Reciprocity and its Evolution (Princeton: Princeton University Press, 2011), p. 26. Astrid Hopfensitz and Ernesto Reuben, “The Importance of Emotions for the Effectiveness of Social Punishment” The Economic Journal, 119 (2009), 1534–1559.

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Independent of legal enforcement, the existence of supportive social norms is generally recognized as a significant contributor to legal compliance. First, in cases where there is no social norm prohibiting an action deemed illegal, an important motivation for following the law is absent: One does not expect others to disapprove of one (and to informally sanction one) for breaking the law. Second, in cases where social norms conflict with the law, an important motivation for disobeying the law is present: One expects others to disapprove of one (and to informally sanction one) for complying with the law. We consider each sort of case in turn – each further illustrates why even the moral-focused version of legal centralism is fundamentally flawed. A clear example of the failure of regulation unsupported by social norms is the prohibition of alcohol in the early twentieth century – a historically unsuccessful legal prohibition of behavior that social norms permitted. As Stuntz explains, “By 1919 a large majority of the population seems to have decided that alcohol consumption was wrong,” yet shortly after it passed a reaction to criminalization set in: The “legal prohibition undercut the norm it sought to enforce. Prohibition came to seem like intolerant meddling, and intolerant and meddlesome policies, like intolerant and meddlesome people, are unpopular.”63 This raises a puzzle: If Prohibition was popular before it was enacted, what made it so unpopular after? Stuntz suggests that the answer depends on “enforcement discretion.”64 Since alcohol use remained widespread (and since individuals had empirical expectations that this was so, thus ruling out the existence of a social norm against it), police could not enforce the law against everyone, and so were compelled to make choices about the allocation of enforcement resources. In general, this resulted in targeting poorer neighborhoods, which tended to be populated by ethnic minorities. Though it may well have played a role, ethnic animus was by no means the whole story: “Simple economics” shows that it was “cheaper for the police to attack the lower-class alcohol trade than to go after its upper-class counterpart.”65 The rich could pay to drink in more discreet institutions and were able to afford to purchase alcohol from more secure distribution networks; the rich tended to buy wine and liquor, the poor beer. The price of wine and liquor was driven above the budgets of the poor precisely by the fact that it was more difficult for police to monitor 63 64 65

Stuntz, “Self-Defeating Crimes,” 1875. Ibid., 1875. Ibid., 1876.

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and disrupt their distribution and consumption than of the more easily monitored beer trade.66 Thus, Prohibition was enforced disproportionately against distribution networks that served the urban poor, and the urban poor had an ethnic identity. This seems to have generated contempt for the law, which is also perfectly natural. No one likes hearing the message that a given kind of conduct is wrong and criminal for him but not for someone else. . . . The ethnic divide tended to make this difference more salient . . . . This . . . affected the normative punch the law packed. Violating the liquor laws is not likely to be stigmatizing in a community that sees those laws as oppressive and discriminatory. As the 1920s proceeded and the us-andthem character of enforcement became ever clearer, Prohibition’s ability to deter simply by virtue of its being the law diminished . . . And so prohibition unraveled.67

As these factors became manifest, the initial widespread normative approval of Prohibition was undermined, greatly reducing compliance. Police could not target all, or even the great majority, of violators, so the efficient way for them to allocate resources was to target poor ethnic minorities who could not afford to pay premiums on alcohol that made them more difficult to catch. As Mackie notes, “The same counterdeterrent effects are reported today in poor urban neighborhoods in the United States exposed to differential enforcement of law, notably enforcement of drug laws in African-American communities”; this differential enforcement “can even result a new norm of pride and approval for having been imprisoned, and an outlaw culture regulated by strong social norms including one of more general defiance of the law.”68 Such differential enforcement is difficult to avoid in cases where the behavior we are attempting to prohibit is widespread, permitted by social norms, but some can afford to pay premiums to avoid detection. In these cases, passing a law is likely to do more harm than good. Turning now to the second sort of case: When criminalization directly contradicts a social norm, it is especially prone to fail. A clear example of this, as already noted, is the widespread prevalence of female genital cutting despite it being widely illegal. In some locales this persistence is relatively unsurprising, since the practice is widely endorsed, but in others it persists even though most individuals view it as wrong. For example, in 66 67 68

Ibid. Ibid., 1877–1878. Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” 325.

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2006, the rate of female genital cutting was 72.5, 93.1, and 89.3% in Burkina Faso, Djibouti, and Sudan, even though only 11.1, 36.6, and 23.7 percent of each population, respectively, supported it.69 The explanation offered by nearly all investigators is that the practice is strongly supported by reciprocal expectations – both (false) normative expectations that most others believe one ought to engage in the practice (which are maintained in part by other norms that prohibit talking about the practice) and (true) empirical expectations that most others engage in it – that constitute a social norm.70 Importantly, in all three jurisdictions the practice has been illegal for some time. So, it appears that individuals normatively disavow a practice, the law deems it illegal, but social norms support it – and so the practice persists. This is a critical case of a general phenomenon: When moral convictions and social norms diverge, social norms tend to determine whether people obey the law. To reiterate and press a bit beyond Mackie’s claim, “Criminalization fails where there is no social norm of legal obedience, when a new legal norm is too far from a current social norm, or both”71 – even when individuals morally endorse a norm of legal obedience or morally denounce the criminalized behavior.

V Norms and Public Justification 1 Unjustified Social Norms We have seen that when laws conflict or are merely unsupported by social norms they are apt to be ineffective and sometimes counterproductive. Yet, we have also seen that in the case of norms such as female genital cutting, not just law but personal normative convictions may be rendered ineffective by norms.72 Again, this is possible because a social norm requires an empirical expectation that most people in one’s reference group follow the norm and a normative expectation that most of these people believe that one ought to comply. Because we can be wrong about 69 70

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Bicchieri, Norms in the Wild, p. 47. Ibid., chap. 1. See Beniamino Cislaghi, Diane Gillespie, and Gerry Mackie, Values Deliberation and Collective Action in Rural Senegal (Wallace Global Fund and UNICEF Child Protection Section, 2014). Mackie, “Effective Rule of Law Requires Construction of a Social Norm of Legal Obedience,” 315. It should be noted that on some analyses, it is part of the condition for a person following a social norm that he have a positive normative belief that it is worthy or have an attitude of endorsement toward it. See Brennan et al., Explaining Norms, pp. 1–14. This analysis, we think, obscures the critical problem that social norms can operate contrary to personal normative convictions.

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what others believe we ought to do, these expectations can obtain without anyone actually believing the norm is one that she, or indeed anyone else, ought to follow. So, we may well have cases in which most have the second-order belief that most others believe that the norm ought to be followed, but no one really has the first-order belief that it ought to be followed. A norm, then, may exist without being justified in the sense of being endorsed by its followers – it can be a bona fide social norm in a social network (group, community), even if no one in that network has a personal normative belief,73 according to which people ought to act on the norm. In this case we can say that the norm is not even minimally justified to its followers: As they see it, the norm does not stand for, cohere with, or promote their personal normative convictions.74 How, we might wonder, can it be the case that most of those in a group believe that others expect them to act on the norm, yet most personally disapprove of the norm? It cannot simply be the power of conformity; that readily explains why a minority submits to a norm of which they disapprove, not why almost everyone does so. Of course, it could be that each agent expects others to conform, disapproves of others for failing to, yet we all know that few if any personally approve of the resulting behavior. But that would be outlandish: It would be as if we all were to declare, “Let us all conform to norms that we personally do not approve of.” A far more plausible explanation is what Bicchieri and other researchers call “pluralistic ignorance”75 – each member of the group, while personally disapproving of the behavior, believes that most others both approve of the behavior and expect others to conform. In cases of pluralistic ignorance, each goes against her own personal normative convictions in order to satisfy what she wrongly believes are the normative expectations of others: Each assumes others’ personal normative convictions do cohere with their normative expectations. Cases of pluralistic ignorance involve a sort of ill-grounded normative conformity. Bicchieri suggests that in cases of pluralistic ignorance, abolishing a norm or changing behavior is relatively “easy.” “Interventions that disseminate information about what people really think would replace 73

74 75

Though our primary concern is with moral convictions, we here leave the idea of a “personal normative belief” open, so as to possibly include a concern for one’s own welfare, that of one’s family and associates, what one believes God requires, personal convictions about virtue, sacredness and seemliness, behavior required or approved by one’s moral convictions or moral code, etc. For the contrast with more-than-minimal justification, see Section V.3. Bicchieri, Norms in the Wild, pp. 42–47.

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the perceived consensus with the objective one, eliminating pluralistic ignorance.”76 To be sure, Bicchieri is clear that making available better information about the normative beliefs of others is by no means sufficient to undermine a norm based on pluralistic ignorance: not only must the members of the network trust the information, but they also must know that others in their network have accepted the information and revised their expectations. This itself can pose a significant problem. If (as already mentioned) there is a norm against talking about topics such as female genital cutting, then both the diffusion of information and the publicity of belief change may be difficult. And even when knowledge of belief change is public, there still remains an assurance problem: Before departing from the requirements of the old norm, one needs to be assured that others are ready to depart, and so will not punish one’s deviance. This requires a level of coordination that is often difficult to obtain; norms against discussing such topics may, again, pose a significant obstacle. Still, changing unjustified social norms tends to be relatively easy, at least when compared to the other sort of norms we will consider, where normative beliefs must change too. The essential point for our purposes, then, is that even though unjustified norms may influence behavior – and even though they may do so in a way that appears to swamp the effect of laws and personal moral convictions – they are, in one important sense, unstable. Their very existence is dependent on people remaining ignorant about what other people actually believe.

2 The Justification Effect In cases where pluralistic ignorance does not obtain, a majority in the norm belives not only that the majority of others believe they ought to conform to the norm but also that others ought to conform to it. Here the majority’s personal normative beliefs cohere with the norm: The norm is minimally justified to them in the sense that, at least as they see it, it coheres with, or expresses, their personal normative beliefs, and this gives them reasons for holding that the norm is something people ought to follow. Thus, the absence of pluralistic ignorance implies that the norm is minimally justified to at least most members of the community. On Bicchieri’s influential analysis, a person whose personal normative convictions support a social norm will be more sensitive to the norm’s requirements: She will be willing to pay a greater personal cost in order to 76

Ibid., chap. 3.

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adhere to it, and so will be more likely to comply with it even in the absence of the threat of sanction or the presence of temptations to defect.77 Bicchieri explains: Sensitivity to a norm refers to how much a person adheres to what the norm stands for. Norm sensitivity embodies one’s personal reasons for adhering to the norm. A highly sensitive individual could list several good, important, reasons why a particular norm should be enforced, whereas an individual with low sensitivity, who does not care much about what the norm stands for, may only list the fact that, since the norm is widespread, it makes sense for her to obey it (to avoid the sanctions that transgressions incur). Let us call a person’s sensitivity to a particular norm, n, kn. For example, a person who is not very convinced of the advisability of child marriage will have very low sensitivity to that norm (in other words a very low kn), whereas a person who is convinced that that child marriage is the best way to protect a child’s honor will be highly sensitive to the norm.78

A person who is sensitive to a norm is one who believes there are many “good reasons” for adhering to and, presumably, enforcing the norm. A person who is highly sensitive to a norm – who is willing to follow it even at considerable cost to herself – is likely to be one for whom it is justified in the sense that the norm “stands for” or promotes the things she cares about.79 Let us call this: The Justification Effect: One’s sensitivity (k) to a norm tends to rise as its justification increases, where justification depends on the coherence of the norm with one’s own personal normative convictions.80

As we have said, this is only a minimal type of justification: A norm is justified for a person if it aligns with her personal normative convictions. At this point, we are not interrogating the justification of those convictions – whether a person’s normative convictions are, say, themselves based on false beliefs. This justification effect is not uniformly strong throughout the population. Those with greater “reflective autonomy,” Bicchieri predicts, will have a stronger tendency to decrease their sensitivity to a norm as they become 77

78 79

80

In Bicchieri’s formal and empirical work, the sensitivity variable (k) measures a person’s tendency to forego monetary gains in order to comply with a fairness norm. Bicchieri, The Grammar of Society, pp. 52–54. Bicchieri, Norms in the Wild, p. 165. Citation omitted. One can view these things a person cares about as “commitments.” See Amartya Sen, “Rational Fools,” in Choice, Welfare and Measurement (Cambridge: Harvard University Press, 1982), pp. 84–106. This coherence generates what is called “relational legitimacy” in the Word Development Report: Governance and the Law (Washington, DC: World Bank, 2017), p. 66.

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aware of reasons against it, while more conformist members of the group will have higher sensitivity just because, say, the norm has been in place for a long time, and so will be less sensitive to reasons against it.81 Still, greater minimal justification tends to bring along greater sensitivity with it. So we have here another way in which minimally justified norms tend to be more stable than unjustified ones: Individuals are more likely to comply with them, even in the absence of sanction or the presence of temptations to defect. When we add to this the fact that laws themselves are likely subject to a similar justification effect – recall that, in the Chicago study, moral convictions were moderately correlated with legal compliance – we find strong evidence for the stability-enhancing properties of public justification. In cases where social norms and moral convictions conflict, the existence of a corresponding social norm, justified or unjustified, may be our best predictor of legal compliance. But to determine how stable that norm is – and, therefore, how stable the corresponding law is – we need to look at whether it is minimally justified among those it governs.

3 The Robust Justification of Norms The extent to which social norms are justified by personal normative beliefs turns out, somewhat surprisingly, to be central to Bicchieri’s analysis of social norms. Indeed, some notion of public reasoning is important to her analysis.82 As we have seen, norms characterized by pluralistic ignorance fail to be minimally justified by the personal normative beliefs of the large majority of the members of the relevant network; norms that people are liable to break (unless backed up by high sanctions) tend to be those that are not minimally justified to them. Commitment to norms, Bicchieri insists, is based on reasons. And compliance is typically based on commitment. As we have described it, when freed of pluralistic ignorance, a community’s norms are minimally justified. As Bicchieri points out, however, one can come to recognize that one’s personal normative convictions are themselves not well-grounded, for example, when we realize that our empirical beliefs and normative commitments do not cohere.83 Bicchieri and Hugo Mercier argue, 81 82

83

Bicchieri, Norms in the Wild, pp. 166 ff. See Cristina Bicchieri and Hugo Mercier, “Self-Serving Biases and Public Justifications in Trust Games,” Synthese, 190 (2013), 909–922; Bicchieri and Mercier, “Norms and Beliefs: How Change Occurs,” Iyyun: The Jerusalem Philosophical Quarterly, 63 (2014), 60–82. Bicchieri, Norms in the Wild, pp. 129–130.

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Inconsistencies are typically the occasion for belief change. When inconsistent beliefs are detected, the mind tries to determine which can be most easily rejected in order to reduce the inconsistency . . . . Arguments take a belief that the listener accepts – the premise – and show her that this belief is inconsistent with the rejection of the argument’s conclusion. When a good argument is offered, it is more consistent for the listener to change her mind about the conclusion than to accept the premise while rejecting the conclusion.84

While unreflectively one may conclude that one’s personal normative beliefs align with a norm, upon further argumentation and reflection on relevant data, one my come to see either that this is not so, or that one’s moral convictions are flawed. Alternatively, this can lead to: Robust Justification: A norm is robustly justified in a social group if at least a majority of the members in the group view their personal normative beliefs as giving reasons to hold that everyone in the group ought to act on the norm, and this conclusion is stable in light of the amount of reflection, discussion, and exposure to new information that it is reasonable to expect of typical members of the group.

Obviously, the idea of what it is “reasonable to expect of typical members of the group” is contextual and rather vague.85 The root idea, though, is that in any given case, a norm fails in robust justification if, in light of the degree of critical reflection and discussion that is appropriate to the group, the group concludes that its personal normative beliefs do not give the group reason to endorse the norm. Robust justification is no mere philosopher’s will-o’-the-wisp: It is, essentially, the aim of the Tostan Community Empowerment Program.86 The program, as conducted in rural Senegal (in villages ranging from 200–500 people),87 centers on human rights and democracy education, stressing exploration of, and deliberation about, the values recognized by the members of the community. Throughout the curriculum, the aim is to examine these ideas in light of the values of the community members. The participants in these classes reflect on human rights and equality (e.g., as they relate to gender norms), often reaching considerable 84

85 86

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Bicchieri and Mercier, “Self-Serving Biases and Public Justifications in Trust Games,” 69. See also Richmond Campbell and Victor Kumar, “Moral Reasoning on the Ground,” Ethics, 122 (2012), 273–312. For some philosophical cleaning up, see Gaus, The Order of Public Reason, pp. 254–258. Cislaghi, Gillespie and Mackie, Values Deliberation and Collective Action in Rural Senegal. However, some norms may characterize networks that link different villages, so those subject to a norm could be greater than 500.

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consensus within the group about these values and some of their implications, before going out to engage in further deliberation and discussion with the wider community. There are many ways in which such deliberation can change norms and the personal normative beliefs on which they may be based. Some personal normative beliefs might change (for example, the belief that Islam requires female genital cutting might be rejected given information from Islamic religious leaders) or new personal normative beliefs may be adopted (say that the education of women is valuable to the family). Alternatively, an individual’s interpretations of her normative beliefs might change. As Bicchieri notes, the Saleema campaign in Sudan seeks to revise the interpretation of deep personal normative beliefs about purity and their link to the imperative to cut daughters, not by trying to undermine these traditional values but instead by linking them to daughters’ remaining whole (“saleema”) and natural.88 As we move from an unjustified norm to a minimally justified one, and then on toward robust justification, not only is the autonomy of the norm follower respected, but the norm becomes stronger and more stable – in at least three ways. First, dissemination of new information is apt to confirm endorsement of the norm rather than to reveal a state of pluralistic ignorance. Second, since personal normative convictions are firmly aligned with the norm, individuals are typically more sensitive to it, and informal (and formal) punishment becomes less important as individuals become less temped to defect. Third, critical reflection and discussion are likely to enhance rather than undermine individuals’ normative convictions and therefore to have the same effect on individuals’ sensitivity to the norm. So, robustly justified norms are more stable in the face of the spread of information, temptations to defect, and critical reflection and discussion. Their efficacy and stability are not dependent on ignorance or coercion but on the reflective normative convictions of those it governs. To be sure, this does not take us as far as Waldron’s demand that the norm be justified to “every last individual” (as discussed in Section I) – when the ideal of public justification is transformed into the real world of moral agents, “every last” may often be best approximated as “the overwhelming majority.” In the real world – not just Cambridge but also rural Senegal – this standard can be approached. The norms that approximate

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Bicchieri, Norms in the Wild, pp. 132 ff., 159–169.

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it simultaneously respect personal moral beliefs and provide a strong foundation for a stable social order.

VI Laws, Norms, and the Public’s Reasoning Public reason political philosophy – like most political philosophy – has been exclusively focused on the law and the coercive institutions of the state. Public reason, says Rawls, is concerned with deliberation in the political arena, and politics is about the coercive use of state power.89 A political conception of justice defines the rationale and scope of the just or legitimate use of state power.90 On Rawls’s view, then, the law is central to public reason, and Rawls famously accords a supreme court a critical role as the “exemplar of public reason.”91 The judges of a supreme court are to “appeal to the political values they think belong to the most reasonable understanding of the public conception and its political values of justice and public reason. These are the values that they believe in good faith . . . that all citizens as reasonable and rational might reasonably be expected to endorse.”92 It is not, we think, unfair or misleading to describe this as a “top-down explication of an essentially bottom-up theory.” Public reason liberalism is, at its heart, a bottom-up theory: It is the reasoning of good-willed citizens that determines political justice. What is ultimately justificatory is what can be justified to the public. Yet, on the Rawlsian view, a body of nine legal experts at the apex of the judicial hierarchy is the exemplar of public reasoning, identifying what understandings of justice are publicly justified. This inversion of the justificatory focus, from the bottom to the top, should lead public reason liberals to hesitate,93 but it is at least coherent if the law is the unique source of social order, largely independent of social-moral norms. In that case the reasoning of the legal experts might well be taken as an exemplar of public reasoning. Because justice would be obtained through autonomous legal regulation, a publicly justified legal order would be, essentially, a publicly justified social order. 89 90

91 92 93

Rawls, Political Liberalism, pp. 136, 214–220. We set aside here the vexed issue of the relation of justice and legitimacy in political liberalism. For an insightful line of analysis, see Paul Weithman, “Legitimacy and the Project of Political Liberalism,” in Thom Brooks and Martha C. Nussbaum (eds.), Rawls’s Political Liberalism (New York: Columbia University Press, 2015), pp. 73–112. Rawls, Political Liberalism, p. 236. Ibid. See Gerald Gaus, The Tyranny of the Ideal: Justice in a Diverse Society (Princeton: Princeton University Press, 2016), pp. 240–250.

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We have seen, though, the utter implausibility of this common picture. The law is, to be sure, a critical source of social order, but its efficacy depends on underlying social norms. When they approximate robust justification, the basic structure of the social order simultaneously respects the normative convictions of the citizens and provides a strong basis for publicly justified legal regulation. A law that meets a test of reasonable acceptance of citizens in, say, the (normless) procedure of the original position but conflicts with robustly justified norms will not be truly publicly justified. It conflicts with the fundamental normative order. It is not just politico-legal values, but the social norms of a society that need to be taken into account in any judgment of what is publicly justified. A law that meets a merely politico-legal test of public justification but fails to secure support from an underlying social norm will be ineffective. Moreover, the coercive public power exercised to enforce it is apt not only to be ineffective but also to induce contempt or disregard for the law. Public justification of the social order is thus far more than a politico-legal justification. It is, in a critical respect, an informal social process. Legally mandated norm change is seldom efficacious as the main driver of change. Because norm change is, at its core, a bottom-up process that depends on the empirical and normative beliefs and convictions of normal citizens in their actual milieu, no body of experts is especially privileged at grasping the demands of public reason. To a large extent, it is driven by changes in people’s personal normative convictions, which have been nothing short of astounding in the last one-hundred years.94

VII Public Justification and the Pursuit of Justice We commenced with the worry that a commitment to public justification undermines the pursuit of justice: Enlightened majorities are barred from pursuing justice as they see it because they must accommodate dissenting (but reasonable) minorities. A great cost of insisting on public justification seemed to be that it hamstrings the law in its pursuit of justice. We have argued that the law does not possess the autonomy and power this worry supposes. Effective legal regulation 94

For an enlightening overview of informal social change, see Thomas R. Rochon, Culture Moves: Ideas, Activism and Changing Values (Princeton: Princeton University Press, 1998); Bicchieri, Norms in the Wild.

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depends on a supporting framework of social-moral norms – which we might call the society’s moral constitution. Unless our norms approximate robust justification, they are apt to corrode in the face of information, reflection, and discussion. As people come to know the basis of the social order, it is unmasked as founded on error about what others believe or about the grounds of their convictions.95 And when norms do not cohere with personal normative convictions, they are more apt to be set aside when compliance is costly. Without public justification, justice is difficult to secure and, if secured, is all too likely to be fragile. To effectively bring about enhanced justice, social-moral norms must be built upon and sometimes changed. While the politico-legal order cannot mandate effective norm change, it is not without influence. Identifying successful influencing policies – which perhaps is truly fundamental to enhancing the justice of our societies – has only just begun. As Bicchieri stresses, we must begin by distinguishing norm abandonment from norm replacement. Sometimes a norm can be undermined by better public information, sometimes simply by encouraging defection – norms wither when the associated empirical expectations are undermined.96 Sometimes, however, norm abandonment requires norm replacement. Even bad norms may provide some social benefits; in such cases people might only be induced to abandon them when there is another to take its place. In seeking to establish a new norm, top-down legal directives are seldom effective.97 Dan M. Kahan, though, argues that in some contexts a law giving a “gentle nudge” rather than a “hard shove” may be effective after all.98 First, legislation is enacted that gives a “gentle nudge” beyond an existing social norm, stabilizing new reciprocal expectations that depart only mildly from the prior social norm, thereby modifying the norm. This allows for further legislation, producing more incremental changes in the norm, and so on. Gradually, over time, the social norm is pushed further and further, until the social norm corresponds to the ultimately desired legislation. Importantly, 95 96 97

98

See Rawls, Political Liberalism, pp. 66 ff.; Gaus, The Order of Public Reason, pp. 296–298. Bicchieri, Norms in the Wild, chap. 3. Ibid., p. 144. As the World Bank Development Report 2015 stresses, “The efficacy of law for changing social norms has limits. Laws that are greatly at odds with existing social norms are unlikely to induce desired social changes.” World Bank, World Development Report 2015: Mind, Society, and Behavior (Washington DC: World Bank Publications, 2015), pp. 51 ff. Dan M. Kahan, “Gentle Nudges vs. Hard Shoves,” pp. 625–631, 633–640. Kahan persuasively argues that his model explains the successful change in social rules pertaining to smoking, domestic violence, drunk driving, and sexual harassment in the United States over the past few decades.

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had we simply commenced with this final legislation it would have departed too far from existing social norms, and therefore would have been either ineffective or counterproductive. In the series of legislative changes, each step goes only slightly beyond existing social norms; the law, as it were, “drags” the norms along with it. Presumably, however, we should expect such a legislative achievement to be stable only in cases where individuals’ moral convictions come along for the ride, too. Other tools abound – media campaigns, deliberation, economic incentives have all been examined.99 In addition to these more top-down alternatives, Elizabeth Anderson has stressed the importance of forms of “mass public action” that may serve to “dislodge shared expectations, unsettle attitudes, and trigger practical deliberation.”100 “Between pure argument and violence is a wide range of contentious activities that are more or less disruptive of habitual ways of life, from petitioning, publicity campaigns, theatrical performances, candlelight vigils, litigation, and political campaigns to street demonstrations, boycotts, teach-ins, sit-ins, picketing, strikes, and building occupations.”101 Gerald Gaus, too, has suggested a more bottom-up mechanism of norm change: Because the precise requirements of norms are often ambiguous, individuals can exploit norm ambiguity to move norms in a better direction.102 Synthesizing these top-down and bottom-up approaches, David Colander and Roland Kupers have argued that governments should adopt a norm influence policy, providing conditions that induce individuals to develop favorable social norms.103 But as Colander and Kupers and almost all investigators realize, while governments can provide conditions for norms to develop and flourish,104 none are apt to be especially effective unless the policy aims to establish not only minimally justified norms but also something approaching robustly justified norms. Again, we are led back to public justification as a core desideratum of an effective set of social rules. 99 100

101 102 103

104

For a survey see, Bicchieri, Norms in the Wild, chap. 4. Elizabeth Anderson, “Social Movements, Experiments in Living, and Moral Progress: Case Studies from Britain’s Abolition of Slavery,” Lindley Lecture (Lawrence: University of Kansas, 2014), p. 12. Ibid., p. 9. Gaus, The Tyranny of the Ideal, pp. 226–234. Colander and Kupers, Complexity and the Art of Public Policy, chap. 11. See also Ryan Muldoon, “Understanding Norms and Changing Them,” Social Philosophy & Policy, 35 (2018), 128–148. They are especially impressed by Hans Monderman’s shared space traffic scheme, which structures the common space in such a way as to encourage the development of social norms. Colander and Kupers, Complexity and the Art of Public Policy, chap. 4.

PART II Public Reason in International Courts and Tribunals

9 European Court of Human Rights in Pursuit of Public Reason? A Study of Lost Opportunities wojciech sadurski

In an important article, Steven Greer and Luzius Wildhaber observe that, to a large extent, the European Court of Human Rights (ECtHR) decides broadly the same types of issues as domestic constitutional or supreme courts: “This involves exploring whether the aims invoked to restrict a specific human right are legitimate, whether the restrictions have a sufficient legal basis, and whether they are proportionate and necessary in a democratic society.”1 The italicised words indicate the focus of this chapter. Has the ECtHR been willing to explore the legitimacy of the aims invoked, and if so, has it been successful, and can this part of its scrutiny of national laws be analogised to an enquiry undertaken under the standards of “public reason”? At first glance, the way the tribunal implements the ideal of public reason seems straightforward, at least as far as non-absolute rights are concerned. Central to this ideal is the notion that only those laws that are based upon arguments to which no members of society have a rational reason to object can boast political legitimacy. In contrast to those rights contained in the European Convention of Human Rights, which are formulated in absolute terms and do not permit any derogations or restrictions,2 some other rights come with clauses establishing legitimate 1

2

Steven Greer and Luzius Wildhaber, “Revisiting the Debate about Constitutionalising the European Court of Human Rights,” Human Rights Law Review, 12 (2012), 668 (emphasis added, footnote omitted). Such as the right to life (Art. 2), the right against torture (Art. 3) or the right not to be punished without a prior law proscribing a punishable action (Art. 7). But note that Steven Greer claims that proportionality has also featured in the Court’s judgments related to these “formally unqualified” rights, “although in this context it effectively becomes an implicit strict or absolute necessity test”. Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006), p. 217.

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grounds for their restriction. Among these are rights to private life, freedom of religion, freedom of expression, freedom of assembly and association, and freedom of movement (Articles 8, 9, 10, 11, and Article 2 of Protocol 4, respectively). The catalogues of these grounds read like a list of paradigmatic “public reasons”, including national security, public safety, prevention of crime, protection of public order, protection of health or morals, protection of the rights and freedoms of others, and maintenance of the authority and impartiality of the judiciary. When the Court scrutinises a national law (or a decision) of which an individual applicant complains, and the breach of any of these nonabsolute rights is alleged, it proceeds in a standardised, canonical way using the following steps: (1) It first determines whether there is an “interference” by the state with the Convention-protected right; if this question is answered in the affirmative (as it almost always is, because the scope of these rights is generally construed in a very broad way), the Court then considers (2) whether the interference is prescribed by law (as opposed to being based on an individual, arbitrary decision), (3) whether it serves a legitimate aim, and (4) whether it is “necessary in a democratic society”. This last step has been interpreted by the Court as consisting of (4a) establishing a “pressing social need” for the interference, and also (4b) checking whether it is “proportionate to the legitimate aim pursued”. As is clear to anyone with even a cursory knowledge of the Court’s case law, if a breach is established, it is usually ascertained in step (4), or occasionally in step (2). However, from the point of view of public reason, the key step is stage (3). An inquiry into the aim of legal interference with an individual right seems to be precisely what the conception of public reason is about. If the goal of legislation is legitimate in the Convention’s terms and, at the same time, if the Convention’s approved aims resonate with the idea of public reason, then step (3) seems to match ideally the requirements of public reason. However, the real picture is substantially more complicated. Three issues undermine the simple view that the public reason inquiry is effectuated satisfactorily in step (3). First, the Court has almost always been willing to accept governments’ recitals of “legitimate goals” at face value. The Court has seldom probed behind government declarations regarding the objectives pursued by impugned legislation – even where those declarations appear, to the reasonable observer, disingenuous. Second, the way the Court has allocated the burden of its reasoning between steps (3) and (4) suggests that the argument about the true nature of the aim has in fact been executed in step (4), concerning

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necessity and proportionality, with its conclusions radiating back upon the understanding of the goal. Third, there is the puzzling case of “protection of morals” as a legitimate ground for restrictions of rights, which has occasionally been interpreted by the Court in a way that is incompatible with the general rationale behind the ideal of public reason. These three points will be discussed in this chapter, in that order. In Section I, I will discuss the Court’s approach to validation of legislative aims as legitimate. In Section II, I will explore the issue of legislative goal ascertainment through the Court’s proportionality analysis. In Section III, I will analyse the Court’s understanding of “protection of morals” as one of the legislative aims legitimately pursued by national laws. As a preliminary matter, however, I should sketch my own understanding of the idea of public reason, as it provides the main theoretical construct adopted in this chapter.3 The idea, discussed at much greater length by many other chapters in this volume, rests upon the view that the legitimacy of laws is crucially dependent upon the sorts of reasons provided for these laws – and not only those “provided”, but also demonstrable, as the most likely purposes pursued by the lawmaker. These publicly admissible reasons confer legitimacy upon legal decisions. The idea is more recognisable in its negative articulation, as a reasonconstraining conception of legitimacy: certain motives which trigger the law, and which are not reasonably acceptable to all – for instance because they are sectarian, or based on prejudice, or hatred, or self-interest of the lawmakers – taint the law as illegitimate. As I have argued elsewhere,4 while the natural home for the Rawlsian conception of public reason is a nation-state setting, this conception can be usefully adapted to a supranational sphere. Supranationalism provides a space in which there is a degree of synchronisation between national and international actors in pursuit of the legitimacy of political authority, based on standards of justification for authoritative directives by appeal to public reasons (i.e., reasons which it is unreasonable for the parties concerned to reject). Scrutiny of exercises of authority conducted in 3

4

See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 212–54; John Rawls, “The Idea of Public Reason Revisited,” The Law of Peoples (Cambridge: Harvard University Press, 1999), pp. 129–80; Charles Larmore, “Public Reason,” in Samuel Freeman (ed.), The Cambridge Companion to Rawls (Cambridge: Cambridge University Press, 2003), pp. 368–93; Wojciech Sadurski, “Reason of State and Public Reason,” Ratio Juris, 27 (2014), 21. Wojciech Sadurski, “Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities”, Global Constitutionalism, 4 (2015), 396.

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accordance with the ideal of public reason may be seen by those parties as legitimate by virtue of its reasonableness, which resides in its focus on the patterns and the substance of justification with regard to the aims pursued by lawmakers. This is a general assumption underlying the analysis undertaken in this chapter.

I Validation of Legislative Aims The Court’s determination of the goals pursued by the legislation at issue – either the legislation on its face, as creating infringement of the applicant’s rights, or a specific administrative or judicial decision which allegedly infringes his/her rights, with no further domestic remedies available – is usually laconic, formulaic, and totally non-critical of the legislator or other national decision-makers. As long as the government is capable of identifying one (or more) of the grounds for rights restrictions listed in the relevant article of the Convention, the Court normally accepts this explanation without probing whether legislative intentions are in fact oriented towards that goal. All the intellectual work aimed at questioning the sincerity or rationality of citing this particular aim is relegated to the “necessity” stage of the Court’s inquiry. Occasionally, but exceedingly rarely, the Court expresses some mild doubts about the aim cited by the government. Even then, however, the Court refuses to end its reasoning at this stage but proceeds as if these doubts should be bracketed and disregarded. In Smith and Grady v. United Kingdom,5 a case concerned with the practice of investigating the sexual orientation of members of the armed forces and discharging those found to be homosexual, the government cited as the grounds for its policy the goals of maintaining morale of service personnel, and of the fighting power and operational effectiveness of the armed forces (paras. 29, 66, 74). The government asserted that these goals were subsumed under the legitimate aims of “the interests of national security” and “prevention of disorder”, which by the terms of Article 8 (2) can serve as grounds for restriction of the right to respect for private and family life. In a single, short paragraph, the Court commented that “it finds no reason to doubt” that the exclusion of homosexual people was designed with a view to ensuring the operational effectiveness of the armed forces (para. 74). 5

Grady v. United Kingdom, Appl. Nos. 33985/96 and 33986/96 (Judgment of 27 September 1999).

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This is an astonishing instance of expressing unconditional confidence in the government’s assurances. After all, the judgment of the Court contains strong evidence (largely relying on the government itself) that the applicants’ conduct gave no grounds for complaint. Indeed, several facts indicate that each of the applicants were exemplary in the execution of their duties and were even considered for promotion. Moreover, the government did not contend that homosexual people were any “less physically capable, brave, dependable or skilled than heterosexuals” (para. 76). The judgment also contains significant evidence, produced or confirmed by the government, that much of the risk to the cohesion and effectiveness of army units may not come from the fact that some members are homosexual or from their behaviour, but rather from actions, attitudes and utterances by heterosexuals giving expression to their prejudice and hatred. Yet none of these facts or observations caused the Court to express doubt (“The Court finds no reason to doubt . . . ”) about the sincerity of the goals recited by the government. There was just one minor doubt expressed by the Court at the stage of scrutinising the goal, and it concerned the investigations conducted by the army into the sexual orientation of its members. Those investigations, not only the ultimate discharges, were part of the complaints by Smith and Grady to the ECtHR. Having accepted, at face value, the government’s assurances as to the legitimate goal served by the discharges, the Court went on to say, “The Court has more doubt as to whether the investigations continued to serve any such legitimate aim once the applicants had admitted their homosexuality” (para. 74). This is one of those rare instances where the Court offered any critical scrutiny of the government’s assertions about its goals. And yet, this “doubt” was immediately bracketed by the sentence that followed: “However, given the Court’s conclusion at paragraph 111 below, it does not find it necessary to decide whether this element of the investigations pursued a legitimate aim.” (para. 74). The paragraph to which this sentence refers (para. 111) was a short statement in which the Court confirmed its conclusion that the conduct of investigations and discharge from service on grounds of sexual orientation were not justified under Article 8 (2) – a conclusion reached as a result of the necessity scrutiny (step (4)). But this is putting the cart before the horse. If the “doubts” of the Court about the goals served by the post-admission investigations were serious, no further inquiry into this aspect of the complaint was warranted: the matter should have ended there, and at least as far as those investigations were concerned, the breach should have been found at step (3) – scrutiny

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of legislative aim. By expressing a “doubt”, and yet immediately bracketing it and proceeding as if that doubt did not matter, the Court discloses that it did not take the goal stage of its scrutiny seriously. It is seen as a purely perfunctory stage of its reasoning, to be quickly disposed of so that the Court can get on with the really serious task of necessity scrutiny. But “necessity” of the measure to the achievement of the goal is a moot point if the goal itself is illegitimate in the first place. That the Court’s analysis of legislative goals is purely perfunctory and lacking any seriousness is evidenced by some other important cases in which a rational person might reasonably develop serious doubts about the sincerity of the legislative aims cited by the governments concerned. In D.H. and Others v. Czech Republic,6 the Grand Chamber accepted the government’s stated aim for placement of Roma schoolchildren in special schools. That aim was expressed in terms of “the desire to find a solution for children with special educational needs” (para. 198) or, as the government put it (in the Court’s paraphrase), “the adaptation of the education process to the capacity of children with specific educational needs” (para. 149). The Court only found a breach of Article 14 (prohibition of discrimination) in conjunction with Article 2 of Protocol 1 (the right to education) on the basis that there was not “a reasonable relationship of proportionality between the means used and the aim pursued” (para. 208). In Vojnity v. Hungary,7 the total removal of a father’s access rights to his child after divorce on the grounds that his religious convictions were detrimental to his son was found to be a breach of Article 14 in conjunction with Article 8. The Court accepted the protection of the child as the legitimate aim of the measure (para. 33), and only found a breach under the necessity analysis (para. 36). But finding no evidence of harm to the child arising from the religious beliefs of a parent (para. 38), the Court should have paused to reflect on the real aim behind the measure. It would be not implausible to detect a strong element of animus towards the religion espoused by the applicant. The Court made no gesture towards such second-guessing of the government’s true aims. In each of these cases, a reasonable argument could have been made that the goals cited by the government were an ex post facto rationalisation. Those goals could have been seen by the Court as a proxy for other 6

7

D.H. and Others v. Czech Republic, Appl. No. 57325/00 (Grand Chamber Judgment 13 November 2007). The Second Section Judgment was handed down 7 February 2006, with a “no violation” conclusion. Vojnity v. Hungary, Appl. No. 29617/07 (Judgment of 12 February 2013).

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goals that were much less benign, and certainly less compatible with the Convention’s litany of legitimate objectives that are capable of justifying rights restrictions. However, there have also been some cases where the Court was somewhat less gullible, and less accepting of governments’ declarations about the goals they pursued by questionable laws. Even then, however, greater scrutiny did not matter to the outcome. Whenever a doubt about the goals was raised, it was quickly set aside by the Court, which then turned to the next step of its analysis. I will provide three examples of such an approach. In Bayatyan v. Armenia,8 the Grand Chamber found the absence of an alternative civilian service for conscientious objectors to military service to constitute a breach of Article 9. This time, the Court did not find the government’s purported aim of the protection of public order (para. 117) to be convincing. The Court based its scepticism on the fact that, at the time of the applicant’s conviction for refusal to appear for military service, Armenia had already announced that it would introduce alternative civilian service (paras. 117, 127). However, rather than determining the matter at this stage, the Court declared that there was no need to investigate whether the objectives underpinning the absence of such alternative service were legitimate, because, “even assuming that they were” (para. 117), the interference was incompatible with Article 9 due to its failing the test of necessity (paras. 124 and 127). Hence, “not convincing” turned out to be much less than “not legitimate”. This approach suggests that the Court applied an extremely weak standard of legitimacy to its inquiry into legislative aims and placed all the burden of argument upon the scrutiny of the necessity of the law. In Perinçek v. Switzerland,9 the Court agreed that punishing a public speaker for denying the fact of the Armenian genocide was aimed at the “protection of the rights of others”, namely the honour of the relatives of genocide victims (para. 75), but then found a breach of Article 10 on the basis of the absence of “pressing social need” (para. 126). Remarkably, in this case the Court did engage in a critical (if laconic) scrutiny of another aim cited by the government – the prevention of disorder (para. 73). The Court responded to that argument by noting briefly that insufficient proof was produced about the suggestion that the applicant’s comments posed a risk to public order (para. 75). This case shows that the Court is 8

9

Bayatyan v. Armenia, Appl. No. 23459/03 (Grand Chamber Judgment of 7 July 2011). The Third Section Judgment of 27 October 2009 ended with a “no-violation” verdict. Perinçek v. Switzerland, Appl. No. 27510/08 (Judgment of 17 December 2013.

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occasionally able to dismiss a stated goal on the basis of its implausibility, though in this case the force of this move was diluted by another legitimate goal being accepted at face value. Finally, one of the most famous and momentous judgments in the entire history of the ECtHR, Sejdić & Finci v. Bosnia and Herzegovina10, has been the only decision so far in which the Court found a constitutional provision of a member state incompatible with the Convention. The Court determined that the ineligibility of the applicants to stand for election to the House of Peoples and the Presidency on the grounds of their Roma and Jewish origins, respectively, was a breach of Article 14 (prohibition of discrimination) in conjunction with Article 3 of Protocol 1 (right to free elections). The decision generated a huge critical response and probably caused more outcry than almost any other judgment of the Court11 – but for our purposes only one aspect is relevant. Under review was a constitutional arrangement under which only three “constituent peoples” – Croats, Serbs, and Bosniacs – could be represented in top state political institutions. To the government’s submission that the goal of this constitutional structure was “the establishment of peace and dialogue between the three main ethnic groups” (para. 34), the Court replied that the rule excluding members of other nationalities from various offices might have served the legitimate purpose of restoration of peace at the time of its enactment (para. 45). Whether it still served a legitimate aim later on – specifically, during the period after Bosnia and Herzegovina had ratified the European Convention – did not need to be decided, because the rule violated the proportionality principle anyway (para. 46). It is clear what is wrong with this paraphrased statement in which the Court declined to engage in any scrutiny of the legitimacy of the aim behind the impugned constitutional provisions. The proportionality principle, logically, enters the picture only after a legitimate aim is established. This ordering of the analysis is necessary, because proportionality and necessity are relational concepts – they refer to the link between a given measure and a legitimate aim in pursuit of which it is enacted. If, for the sake of argument, the aim is not legitimate, the proportionality/necessity analysis is a moot issue. The Court did provide a strong argument about the violation of the principle of 10

11

Sejdić & Finci v. Bosnia and Herzegovina, Appl. Nos. 27996/06 and 34836/06 (Grand Chamber Judgment of 22 December 2009). See Christopher McCrudden and Brendan O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (Oxford: Oxford University Press, 2013).

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proportionality by the exclusion rule (paras. 47–50). Critical to this point was the Court’s recognition that there were mechanisms of power-sharing which would not automatically lead to the total exclusion of the representatives of communities other than the three main groups (para. 48). However, this only shows that the Court’s doubts about the legitimacy of the goal in the post-ratification period did not carry any argumentative weight. While on the one hand it has applied strict scrutiny, and thus a highly interventionist and activist approach to the analysis of proportionality, it was surprisingly meek when evaluating (indeed, failing to evaluate) the legitimacy of the goal of the exclusionary rule. It is time for interim conclusions. The ECtHR has, at its disposal, a handy scheme for evaluating legislative goals and, in particular, for testing them for consistency with public reason. The Court’s case law shows, however, that the scrutiny of legislative aims in the context of the Court’s broader scheme is usually purely perfunctory and formulaic. In these exceptional cases where the Court did express “doubts” or “hesitations” as to the goals declared by the government, the Court’s scepticism did not result in a determination of breach on that basis. Rather, the Court either announced at this stage that the legislation would not survive necessity scrutiny anyway (and so considers itself under no duty to elaborate about the legitimacy of the goal, as in Sejdić & Finci) or found another operative goal which it accepted, and which rescued the law from objections (as in Perinçek). The stage of the inquiry concerned with scrutiny of the underlying aim of an impugned law is therefore near redundant and almost never seriously used. In practice, it serves only as a stepping-stone to the real thing – the necessity analysis. It is at that stage that the goal reappears, in the context of scrutinising how well tailored the legislative measures are to the achievement of this goal. Whether and in what way the goal analysis is embedded in necessity scrutiny will be discussed in the next section of the chapter.

II “Necessity” Scrutiny and the Ascertainment of Legislative Goals The ECtHR has established, in a number of its decisions, an interpretation of the “necessary” which is neither synonymous with the “indispensable” nor equivalent to the “desirable” (nor “useful”, nor

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“admissible”).12 Rejection of “indispensability” as synonymous with necessity suggests that it is not a strict necessity in the sine qua non sense that the Court has in mind, but something weaker. Some measures will be found “necessary” even though, strictly speaking, we can envision other ways of achieving the same constitutionally required or permitted goals. At the other extreme of the continuum, it is clear that if “necessity” were to be equated with (or even came close to) “desirability”, then the textual requirement of “necessity in a democratic society” (articulated in the Convention) would all but lose its meaning. In defining its standards of necessity, the Court has not been precise in its articulation of a middle ground between indispensability and desirability. In the most oft-repeated formulation, the Court has settled on a conception that “necessary in a democratic society” means that the interference with a right must serve “a pressing social need” and be “proportionate to the legitimate aim pursued”.13 Both these concepts have their problems, which will be discussed in turn. The element of the formula requiring a “pressing social need” is immediately attractive due to the pragmatic and elastic character of those words: what constitutes a “pressing need” is a matter of a reasonable political judgment, rather than the type of quasi-logical analysis that the term “necessity” might otherwise demand. The danger of the concept, however, is that it lends itself to an unfortunate disconnection from the goals to be pursued. The concept of “necessity” is explicitly relational. Hence, any statement of necessity is incomplete without a determination of the goals to which a given law is related. By contrast, the concept of a “pressing social need” may well appear without such a complement. In other words, the notion of a “pressing social need” is self-standing. It can be used independently of, or indeed disconnected from, the description of a goal in a way that the concept of “necessity” cannot. From the point of view of the theme of this chapter, this disconnect is of course unfortunate, because the use of the concept of a “pressing social need” as a proxy for necessity may release the Court from investigation into the legitimacy of the legislative goal. It is also unfortunate from the point of view of the integrity of the Convention system because, as 12

13

Handyside v. United Kingdom, Appl. No. 5493/72 (Judgment of 7 December 1976), para. 48; Dudgeon v. United Kingdom, Appl. No. 7525/76 (Judgment of 22 October 1981), para. 51. See, e.g., Goodwin v. United Kingdom, 22 E.C.H.R. 123, 143–44 (1996); for discussion, see Alastair Mowbray, Cases and Materials on the European Convention of Human Rights (London: Butterworths, 2001), pp. 411–12, 448.

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Roberto Perrone rightly notes, “Not every measure that is ‘necessary in a democratic society’ is acceptable, but only those directed at safeguarding the specific interests mentioned in the Convention.”14 In any event, I am not necessarily making the stronger point that the Court has actually used the concept of a “pressing social need” in order to ignore the question of the legitimacy of legislative aims, but the weaker one that such a temptation is there. However, the reading of some of the cases suggests that occasionally, the Court has been unwilling or unable to resist this temptation. In Norris v. Ireland (a case to which I will return in the next section of this chapter),15 the Court considered the interference with Convention rights by Irish laws that criminalised certain homosexual activities. While finding the law in breach of Article 8 of the Convention, it stated, inter alia: “Applying the same tests [of injury to moral standards, as established in Dudgeon v. UK] to the present case, the Court considers that, as regards Ireland, it cannot be maintained that there is a ‘pressing social need’ to make such acts criminal offences” (para. 46). While the conclusion is to be applauded, there is nothing in this statement that would suggest that the Court relates the pressing social need criterion to specific goals identified in Article 8 (2). Indeed, the above-quoted sentence is immediately followed by the Court turning to the issue of proportionality, as separate from the “pressing social need” criterion – so “pressing social need” is clearly used here as a self-standing concept rather than a relational one. The second criterion that must be met in order for an interference with a Convention right to be “necessary in a democratic society” is that it must be “proportionate to the legitimate goal pursued”16 (note that both criteria must be fulfilled jointly rather than alternatively, in order to meet the proper standard of necessity). But the interface between the standard of “necessity” and “proportionality” (qua a proxy for necessity) is not self-evident. Offhand, one may think that proportionality is neither a necessary nor a sufficient condition of necessity; in other words, that (1) there may be measures which are proportionate but not necessary, and (2) measures which are not proportionate and yet necessary. Both 14

15 16

Roberto Perrone, “Public Morals and the European Convention on Human Rights,” Israel Law Review, 47 3 (2014), 361–378, 367. Norris v. Ireland, Appl. No. 10581/83 (Judgment of 26 October 1988). See e.g. Smith & Grady, Appl. No. 33985/96 and 33986 (Judgment 27 September 1999), para. 87.

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these non-correlations between proportionality and necessity are significant for our theme here, namely for goal detection. Regarding proposition (1), for each legitimate goal we may think of a measure which is proportionate, in a sufficiently weak sense of proportionality, and yet which is not necessary. The italicised words are crucial to my argument: it is important to note that the formula “proportionate to the goal pursued” per se does not dictate any particular degree of connection between the measure and the goal. So if we understand this connection in a relatively weak fashion (i.e., as remote from the notion of “necessity” as “indispensability”), we may well characterise as “proportionate” a measure which is not the only one imaginable that would lead to the relevant goal – that is, one which is not “necessary” for its achievement but merely suitable. The European Court has been willing to lower the standard of proportionality; after all, this is the whole point of distinguishing it from necessity as indispensability. Whenever the Court has applied a wide margin of appreciation at the stage of necessity scrutiny, by definition, it has moved the point on the scale between indispensability and desirability in the direction of the latter. A consequence of such relaxation of the standard of proportionality is that it becomes less helpful in enabling the Court to discern the true goal of the legislation impugned. This is because strict scrutiny (with the standard of means-goal relationship coming close to necessity as indispensability) is a device for screening out insincere declarations about legislative goals and identifying true goals – but only if it is truly “strict”. This has often been observed in US constitutional scholarship: strict scrutiny may be justified by a suspicion that improper motives are at work, and it requires a close connection between the asserted aim and the legislative means adopted. As Cass Sunstein puts it: “If a sufficiently close connection [between the asserted justification and the means adopted] cannot be shown, there is reason for skepticism that the asserted value in fact accounted for the legislation.”17 As for proposition (2), namely that there may be measures deemed necessary and yet not proportionate, this may initially seem odd: after all, one may have an intuitive sense that if a measure is necessary then a fortiori it is proportionate. But this is not so, and it all depends on the notion of proportionality we adopt. In particular, it is not so if we consider proportionality as proportionality sensu stricto, as distinguished from proportionality sensu largo. To summarise a well-known standard, 17

Cass R. Sunstein, The Partial Constitution (Cambridge Mass.: Harvard University Press, 1994), p. 30.

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proportionality in the strict sense of the word requires comparison of costs of the rights restrictions with the benefits of achievement of the constitutionally legitimate objective that may be fulfilled only by interfering with a constitutional right.18 The proportionality analysis sensu stricto demands that the latter benefits outweigh the former costs: if they do not, the rights restriction is impermissible under this test. Proportionality sensu largo, in turn, encompasses the analyses in terms of suitability of the means to a legislative end, of the least restrictive means possible and of proportionality sensu stricto. Now proportionality sensu stricto does not fully correlate with necessity. There may be legislative measures which will be found necessary and yet not proportionate sensu stricto because the balance between benefits and burdens turns out to be negative: the costs (of rights restrictions) prevail over the benefits (of accomplishing a goal). From the point of view of our theme in this chapter, namely that of the goal ascertainment, an important observation is that when the Court applies this notion of proportionality, it uses a necessity proxy (proportionality) which is incapable of discerning with precision the aim of the legislation. If the standard of proportionality is not strictly correlated with necessity, the potential of proportionality in goal detection is lost. While the Court has never clearly articulated its understanding of the standards of proportionality, occasionally it seems to use proportionality precisely in this sense. Consider Dudgeon v. UK,19 a case involving the prohibition of homosexuality in Northern Ireland. Having quickly disposed of the issue of a “pressing social need” for making homosexual acts criminal offences, the Court moved on to the next step in its necessity scrutiny: “On the issue of proportionality, the Court considers that such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant” (para. 60). The balancing of the costs and benefits, on both sides of the equation, is unmistakable, scattered as it is throughout that part of the reasoning of the Court. On the side of the prohibition, the Court put together a number of factors, including the fact of the strong and morally grounded opposition in Northern Ireland to legalising homosexuality (para. 57) and the need to 18

19

Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (Cambridge: Cambridge University Press, 2012), p. 340. Dudgeon v. UK, Appl. No. 7525/76 (Judgment of 22 October 1981).

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provide safeguards against the exploitation and corruption of those who were especially vulnerable by reason, inter alia, of their youth (para. 49 and 62). On the other side of the equation, the Court noted the costs of interfering with “an essentially private manifestation of the human personality” (para. 60), and that the “nature of the activities involved” was such that they “concern a most intimate aspect of private life” (para. 52). It is on the basis of this comparison of costs and benefits that the Court concluded that the legal restrictions on the applicant were disproportionate “to the aims sought to be achieved” (para. 61). But there are of course other uses of proportionality in the ECtHR case law, when proportionality is better calibrated to serve as a necessity standard and does not involve the balancing of benefits of the goal attainment and costs of rights infringement. It is in those cases that we observe the Court’s implicit use of that standard as goal detection. Consider the case of Vajnai v. Hungary20 in which the Court found a violation of Article 10 in the punishing of a leader of a left-wing party for wearing a red star emblem at a demonstration in Budapest. The punishment was meted out under a newly added provision of the Criminal Code, entitled “The use of totalitarian symbols”, which prohibited public uses and exhibits “of a swastika, an SS-badge, an arrow-cross, a symbol of the sickle and hammer or a red star” (para. 16). In the Convention’s terms, the law according to the government was aimed at the prevention of disorder and the protection of the rights of others (para. 33) – something that the Court immediately agreed with (para. 34). The necessity scrutiny, which followed this certification of the legitimate goal, is an example of a remorseless demolition of the relevance of the prohibition to the goals asserted. The Court first demonstrated that the red star can be viewed as a symbol not only of totalitarian oppression under Communism, but also of the international workers movement and the struggle for a more just society (para. 52). Second, the Court noted that Mr Vajnai did nothing to show that his participation in public life of Hungary would be in defiance of the rule of law (para. 53). And third, there was no evidence that the wearing of the red star would bring about public disorder in Hungary (para. 55). These are all eminently plausible arguments. What the Court did not say, but what any reasonable reader can be excused for suspecting at this stage, is that the true goals of the restrictive law were different from those asserted. If the law is so clearly disproportionate to the aims of prevention 20

Vajnai v. Hungary, Appl. No. 32609/06 (Judgment of 8 July 2008).

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of disorder and protection of the rights of other people, then the only credible conclusion is that the law was in fact triggered by some other motives – that it was meant to serve different goals, for which purposes it was better calibrated, such as hostility to certain political or philosophical ideals considered “off limits”. But since these goals are clearly not suitable for governments to assert publicly as grounds for restrictions on speech, the government had to cite aims that were seriously incommensurate with the prohibition. In this case, the Court’s tacit goal ascertainment (and disqualification – but again, only tacitly, and at the stage of the necessity scrutiny) was argumentatively made possible by the very narrow “margin of appreciation” granted to the government by the Court. In other words, the Court adopted a relatively low level of deference to the national authorities. However, this approach has not always been taken. When the Court chooses to grant a respondent state a wider margin of appreciation (i.e., to manifest a greater deference to the national institutions), the role of its necessity scrutiny as a way of smoking out improper legislative goals is appropriately lower. It is now time to draw provisional conclusions for this section of the chapter. We have seen that goal detection, when it happens, occurs in the course of necessity scrutiny rather than at the earlier stage of the assessment of government-declared goals. There is an immediate problem with a tacit rather than explicit determination of the goals – a point to which I will return at the end of this chapter. For the moment, it is important to note that some aspects of the necessity scrutiny, as conducted by the Court, are better suited to goal detection than others, and that they carry potential for some negative side effects, regardless of the goal detection effort. When the Court uses a “pressing social need” as a proxy for “necessity”, it may be quite effective in goal detection, but there is a risk that the social need will be understood in a self-standing rather than a relational way. This decreases the effectiveness of goal detection because it is precisely thanks to the relational aspect of necessity that the true goal may be ascertained. When the Court uses the proportionality test as a proxy for necessity, it oscillates between two interpretations of the test, which it does not care to distinguish from each other. The balancing sensu stricto interpretation, calling for comparison of the costs of rights restrictions with the benefits of goal attainment in a particular context, has no potential for goal detection, because it cannot serve as a reliable proxy for necessity. There may be some measures that are necessary and yet fail the proportionality sensu stricto test. When, in turn, the Court applies the relevance-oriented interpretation

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of the proportionality test, everything depends on the level of scrutiny of proportionality of the measure to the goal: the stricter the scrutiny, the higher the potential for successful goal detection. However, when the Court accords a generous margin of appreciation to the state and, accordingly, lowers the level of scrutiny, the potential for goal detection is all but lost.

III “Protection of Morals” Exceptionalism and Public Reason One ground for state interference with citizens’ rights raises special issues when we consider whether the Court has been pursuing an ideal of public reason. When the Court uses the standard of protection of public morals as one of the legitimate aims of rights restrictions listed by the Convention, its intellectual task is qualitatively different from the task of judging the necessity of restrictions from the point of view of public health, safety, national security or even “rights and freedoms of others”. Naturally each of these standards lends itself to multiple interpretations, and there is, prima facie, nothing about them that renders them problematic as “public reasons”. Furthermore, each of these goals may be interpreted disingenuously. They may be used by a defender of a law in order to cover up some other, “non-public” reasons – but this is the whole point of the necessity scrutiny. The “protection of morals” ground is different, however. Some moral positions are inconsistent with public reason – but not because they are improperly interpreted, nor because they have been misused to cover up some other, improper motivations. They may be antithetical to “public reason” at their very core, when the interpretation is reasonable, conducted in good faith, and not disingenuous. Some moral positions, under the best interpretation that can be given to them, may strike at the very heart of the ideal of public reason, the point of which is that the motivations of legislation – and, correspondingly, the legislative aims – should be endorseable by all to whom they apply. When the legislator enforces moral positions which, by their very nature, cannot be endorsed by some citizens who must comply with the law, this violates the fundamental rationales of the ideal of public reason: the ideas of liberty, equal citizenship and respect to all as free and equal citizens. Some introductory conceptual observations are needed in order to place the ECtHR’s approach to the “protection of morals” in a broader framework, which will allow us to characterise and assess the Court’s

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jurisprudence in this regard. In particular, two dichotomies are relevant. The first dichotomy contrasts morally informed legal status of a practice with a moral assessment of the practice itself. Michael Perry, an American constitutional scholar exploring various intersections of law and morality, has long been arguing that courts should take into account public morals (in the sense of “conventional morality”, as he occasionally calls it),21 but he makes a strong caveat that, in ascertaining conventional morality, the courts should look not at social values regarding what is right and wrong, but rather at moral judgments about what immoral behaviour should be legally prohibited. Only those “commands to which [conventional moral culture] not only subscribes but believes should have the force of law and thus be legally binding on all, subscribers and nonsubscribers alike”22 should be visible and relevant to courts. Without such a distinction, Perry argues, we cannot draw a line between “private morals” and “public morals”, and it is only the latter which are relevant to the exercise of the judicial function. There is a temptation, consistent with Perry’s usage, to reserve the notion of “public morals” to moral judgments about the legal status of a particular practice, while all other morality (including private morals) would be about right or wrong per se. However, as a terminological fiat it would be somewhat counter-intuitive (is it really absurd to talk about public morals in a context other than legal prohibitions?), and for the purpose of our theme in this chapter it is worth noting that the European Convention does not use the concept of “public morals” but rather “morals” simpliciter. Not much can be read into this legal drafting, especially since, on occasion, the Court has used both concepts interchangeably, and somewhat contrary to the Convention’s text, it talks about “public morals”, but seemingly does so without attaching any significance to this qualifier.23 But the distinction raised by Perry remains very important, and rather than presenting it as “public” versus “private” morals (with predictable objections to the very idea of “private morals”),24 it is more prudent to characterise the dichotomy as that of 21

22 23

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Michael J. Perry, “Substantive Due Process Revisited: Reflections on (and beyond) Recent Cases,” Northwestern University Law Review, 71 (1976), 446–47, n. 189. Ibid., 442, footnote omitted. See Müller and Others v. Switzerland, Appl. No. 10737/84 (Judgment of 24 May 1988), paras. 39 (public morals), 43 (public morals), 43 in fine (morals), 36 (morals). “I do not think that one can talk sensibly of a public and private morality any more than one can of a public and private highway,” Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965), p. 16.

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first-order and second-order morals. First-order morals are about judgments concerning the rightness or wrongness of a given practice, while second-order morals are about moral judgments regarding whether and how the practice should be regulated by law. This is an easily recognisable distinction: there is nothing inconsistent about morally condemning abortion and believing that it should be legally available, at the same time. Indeed, such a discontinuity between condemnation and legal tolerance seems to be the test for a genuinely liberal approach to individual rights. The second dichotomy is that between morals in a descriptive sense, as conventional moral standards, and morals in a normative sense consisting of judgments espoused by a speaker. The latter may serve as a standard to criticise the former – but not the other way around. H. L. A. Hart dubs this distinction (picking up the late nineteenthcentury utilitarian terminology) as that between “positive” and “critical” morality, the former being “the morality actually accepted and shared by a given social group” while the latter consists of “the general moral principles used in the criticism of actual social institutions including positive morality”.25 The target of Hart’s criticism is Lord Patrick Devlin and his “legal enforcement of morality” thesis. Hart, at the time, criticised Devlin for using, in a question-begging manner, “positive morality” in his thesis: “It would plainly be no sufficient answer [to the question about whether the enforcement of morality is justified] to show that in fact in some societies – our own or others – it was widely regarded as morally quite right and proper to enforce, by legal punishment, compliance with the accepted morality.”26 In my discussion of the ECtHR approach to “protection of morals”, I will describe this dichotomy as “descriptive” versus “normative” senses of morals. It has been captured well by Eyal Benvenisti: “The adjudicating organ must either adopt a moral standard or defer to a relativistic approach based on comparative analysis.”27 These two dichotomies (first-order versus second-order morals, and morals in a descriptive versus normative sense), when combined, produce four possibilities, as shown in Table 1 below. 25

26 27

H. L. A. Hart, Law, Liberty, and Morality (Palo Alto, CA: Stanford University Press, 1963), p. 20. Ibid., pp. 17–8. Eyal Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards,” NYU Journal of International Law & Politics, 31 (1999), 851.

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Table 1: Meanings of “Morals” in the Judicial Usage

First-order Second-order

Descriptive

Normative

(1) (2)

(3) (4)

In (1), a judge makes his or her view dependent on the dominant views about the wrongness (or otherwise) of certain practices; in (2) on the dominant views about what should be prohibited or legally tolerated, regardless of condemnation; in (3) on his or her own moral view about the rightness or wrongness of a given practice; and in (4), on his or her own moral view about the limits of prohibition, regardless of condemnation. For the lack of better words, position (1) may be called “radically moralistic”, and position (4), “radically civil-libertarian” (or rights-protective). Positions (2) and (3) are intermediate, although a moment’s reflection suggests that (2) comes much closer to (1) than to (3), and if one were to economise on evaluative assessment of the ECtHR in this regard, (1) and (2) would be located on one side of the divide, and (3) and (4) on the other. Still, position (2) is a milder form of “moralism” than (1). Where does the “protection of morals” jurisprudence of the ECtHR stand, when viewed from the point of view of this taxonomy? It is not easy to assign the Court’s positions to any of the four categories just identified – which is not surprising: judicial opinions are not exercises in legal or moral theory. If, however, one reads the reasoning in those cases where “protection of morals” is either the only or the main factor in the decision, one has an impression that all four positions are present, with different positions acquiring crucial argumentative value, depending on the context. In the Handyside case28 – a foundational decision for the Court’s Article 10 jurisprudence, and the one where protection of morals was the only legitimate aim claimed by the government and considered by the Court – the Court commenced its “margin of appreciation” argument with a statement (to be so often repeated in the subsequent decisions) that “it is not possible to find in the domestic law of the various Contracting States a uniform conception of morals” (para. 48). It immediately continued: “The view taken by their representative laws of the 28

See footnote 15.

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requirements of morals varies from time to time as well as from place to place . . . .” (para. 48). It seems that “the conception of morals” and the “requirements of morals” must belong to categories (1) or (2): certainly it is not a “normative” conception of the judges but the descriptive moral position that appears in these statements. It may apply either to firstorder or second-order conceptions. However, the reference inserted later to “that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” (para. 49) suggests that second-order moral positions may figure in the Court’s understanding of “morals”, at least alongside first-order positions, since these three values are typically second-order ideals. The proposition that there is “no uniform European conception of morals” was repeated in another important Article 10 case, Müller v. Switzerland29 (para. 34), with similar effect. The difference was that in this case the government cited two grounds for conviction and confiscation of paintings – protection of morals and the rights of others (para. 30). The Court effectively bundled these together by announcing (without any argument) that there is “a natural link between protection of morals and protection of the right of others” (para. 30). The Court echoed the Swiss courts in saying that “conceptions of sexual morality have changed in recent years”, but immediately followed this proposition with a quotation, with approval, of the view by the Swiss court that the paintings in question were “liable grossly to offend the sense of sexual propriety of persons of ordinary sensitivity” (para. 36, emphasis added). The italicised words, in connection with the fact that the Swiss interference in the painter’s rights was upheld, suggest that it was category (1) in our taxonomy of moral positions, which was taken into account by the Court. In Dudgeon,30 a decision which preceded Müller by seven years, just as in Müller, “protection of morals” was considered jointly with the “rights of others” as the grounds for interference in Article 8. Several statements suggest that, again, it is a category (1) moral position: the Court, in scrutinising the prohibition on homosexuality in Northern Ireland, referred to the “prevailing conception of sexual morality” at the time of the enactment of the laws, and agreed that the general aim pursued by the legislation “remains the protection of morals in the sense of moral standards obtaining in Northern Ireland” (para. 46 in fine, emphasis 29 30

See footnote 28. See footnote 19.

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added). This, in connection with such concepts (used approvingly) as “the moral ethos or moral standards of a society as a whole” (para. 47, see also para. 49), as well as “the moral climate in Northern Ireland in sexual matters” and “the moral fabric of society” (para. 57, referring approvingly to the government’s submissions), may suggest that, just as in Handyside and Müller, it is category (1) which dominates. But there is an important difference. Referring to the fact that “a substantial body of opinion in Northern Ireland [is] opposed to a change in law [in a liberal direction]”, the Court immediately asserted: “Nevertheless, this cannot of itself be decisive as to the necessity for the interference with the applicant’s private life . . . .” (para. 59). And further: “The moral attitudes towards male homosexuality in Northern Ireland and the concern that any relaxation in the law would tend to erode existing moral standards cannot, without more, warrant interfering with the applicant’s private life to such an extent” (para. 61). No equivalent assertions are to be found in Handyside or Müller, and they clearly belong to categories (3) and/or (4): the Court assumes a normative, critical position of the conventional moral standards in the country of interference. Let us note, parenthetically, that in both cases, Dudgeon and Müller, the Court explicitly connected the “protection of morals” goal with that of protection of “the rights and freedoms of others”, even though in the Convention these are two separate grounds for derogation. In Dudgeon, where the breach of Article 8 was found in anti-homosexual laws, the Court said that it was “somewhat artificial” to draw a rigid distinction between the two grounds because protection of “moral interests and welfare” may come under both these labels. This is especially so in cases where the legislation in question aims to safeguard vulnerable members of society such as young people who, in this instance, it was argued, were in need of “special protection” from the “consequences of homosexual practices” by reason of their dependence or lack of maturity (para. 47). In Müller, where no breach of Article 10 was found in antiobscenity regulations, the Court agreed that “there is a natural link between protection of morals and the protection for the rights of others” (para. 30). By joining together both these grounds, the Court implicitly suggested that the “morals” it had in mind must be equivalent to the conventional rather than critical moral position: if protection of morals at the same time protects the rights of others, those “rights of others” must consist of rights against being offended in one’s own moral sensitivities, for instance when confronted with obscene paintings, as in Müller. This is a par excellence moralistic viewpoint, where moralism

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is understood as a position which mandates prohibition based on one’s moral disapproval, without more. When “rights of others” are allegedly breached by what is considered to be an immoral behaviour, morality is seen as equivalent to conventional moral standards, under which people have a right to be protected against offence to their sensitivities. The matter is slightly different in Dudgeon where the Court explicitly interpreted “the rights of others” as belonging to the youth which must be “protected” against homosexuality. In contrast to Müller, where moralism discernible in the merging of “public morals” and “the rights of others” places it unmistakably in the category (1) in our taxonomy, the Dudgeon merger of these two categories is softened by an aspect of protecting the youth against “harm”, as the Court saw it in 1981, of homosexuality. Norris,31 a 1988 case of anti-homosexuality law in Ireland, was very similar to Dudgeon in all relevant respects: it also was based on “protection of morals” as the sole goal cited by the government and recognised by the Court, and it also ended in a conclusion of breach of Article 8. Significantly, it rested its conclusion about the breach on the dictum, quoted from Dudgeon, that the very fact that some members of the public may be shocked, in itself, cannot warrant penal sanctions (para. 46 in fine, quoting Dudgeon para. 60). So again, the Court applied a normative, or critical, notion of “morals” in the key part of its argument. To conclude this section of the chapter, there is no single, coherent notion of “morals” in the Court’s jurisprudence of the “protection of morals”. The Court does not make it clear whether it uses “morals” in the first-order or the second-order sense, and whether it applies moral standards in a descriptive or in a normative/critical sense.32 In fact, the Court oscillates between all these meanings, depending on the context and on the rhetorical use necessitated by the conclusions of the reasoning. This oscillation is unfortunate since the use of the “protection of morals” as an aim justifying rights restrictions lends itself to excessive restrictions of rights (based, for instance, on the mere fact of moral reprobation for a particular practice),33 and because it lends itself to 31 32

33

See footnote 15. See similarly, though using a different conceptual framework, Christopher Nowlin, “The Protection of Morals Under the European Convention for the Protection of Human Rights and Fundamental Freedoms, Human Rights Quarterly, 24 (2002), 264–86, in particular 279. See George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007), pp. 120–23.

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usages which are antithetical to public reason (because some moral positions, in a descriptive sense, may be damaging to the value of public reason). More fundamentally though, the questions regarding the meaning of “morals”, in the “protection of morals” cases, should have been elaborated at the stage of the scrutiny of legitimacy of legislative goals. This is because such a positioning of the analysis might have compelled the Court to establish that some asserted aspects of “protection of morals” do not belong to protected morals at all, and so cannot form part of a “legitimate aim” in the first place.34 The Court would have to openly tackle the issue of whether morals, in the Convention’s sense as a legitimate legislative aim, include those moral standards that are based merely on moral reprobation for someone’s harmless action. The Court would also have to openly wrestle with the relationship between the protection of morals and the rights of others, including the question of whether we have a right not to be morally offended by someone’s harmless conduct or lifestyle.

IV Conclusion Like many other constitutional courts around the world, the ECtHR, an emerging European constitutional court for human rights, has engaged in scrutiny of legislative aims pursued by national laws interfering with the proclaimed rights. For this reason, it can be viewed as adopting a standard similar to a liberal conception of public reason: a conception that laws motivated by inappropriate aims are illegitimate, regardless of their effects, and that the appropriateness of the aim is judged by its endorseability by all to whom it applies. The Court, however, has almost always eschewed its authority to evaluate the aims in this way. On the very few occasions when it did express its doubts about the plausibility of the aims cited by the governments concerned, it either refused to attach any weight to these doubts and moved on to the next stage in the analysis (the necessity scrutiny) or identified another aim which it found legitimate, and for this reason it moved on to the necessity scrutiny stage. The main burden of the aim scrutiny was therefore shifted to the necessity stage, when the Court assessed whether the restrictions were necessary (in a democratic society) to attain this aim. In purely practical 34

See, similarly, Kai Möller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012), pp. 183.

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terms, this transfer of the goal analysis from the aim scrutiny to the necessity scrutiny stage may not have mattered: it may well be that the aims would have been disqualified at the aim scrutiny stage exactly in all those cases when the legislative measures were found unnecessary to attain the stated aims. It may therefore be the case that breaches of the Convention would have been established at the aim scrutiny stage in all these cases when the breaches were actually found on the basis of the defective necessity link. So what does it matter? If the only downside of the Court’s puzzling gullibility at the aim scrutiny stage were the undermining of an elegant architecture of the canonical reasoning, and of clarity in the Court’s argument, then the Court can be excused for its strategy of evaluating the goals in a roundabout, surreptitious manner, rather than candidly and explicitly, at the stage of the argument when it is supposed to do so. However, clarity of argument is only one among the ideals that the Court pursues in its public reason-giving; another is that of legitimacy. It may be argued, and it is my primary theory for the reasons underlying the Court’s adoption of this strategy, that questioning the state at the aim ascertainment stage – in practice, accusing the state of being disingenuous in providing aims which act as mere pretexts, while the true aims were of a much less wholesome character – brings the Court into a head-on collision course with the state and risks weakening the Court’s legitimacy, which is tenuous at the best of times anyway. It may be argued that postponing the exercise of aim ascertainment to a later stage, and hiding it within the much more technical and complex necessity scrutiny stage, helps the Court to reduce the reputational losses for a state found eventually to be in breach of the Convention, and thereby maintain its legitimacy capital through a shrewd exercise in judicial diplomacy. After all, if the legislative restrictions have been found “unnecessary” to achieve a stated aim, it sounds more like an error on the part of the state; if, in contrast, the state is found to publicly provide an aim that is not credible under the circumstances, it sounds much more like deceit. If you are a state, you would rather be found mistaken than dishonest. The force of this explanation (and a consequent justification) is, nevertheless, limited. For one thing, the condemnation of a state may be also quite harsh when it is made at the necessity scrutiny stage: if necessity is blatantly missing, the only implication is that the government provided disingenuous aims, and that it is concealing the true motives for a restriction. More importantly, however, the necessity scrutiny, at least as conceptualised and adopted as canonical by the Court, is imperfect as

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a device for discerning the true goals of legislation – as shown in Section II of this chapter. When the necessity is translated into “a pressing social need”, the temptation for the Court is to consider it as a self-standing rather than a relational concept, in which case its capacity to ascertain the goals is lost. When necessity is viewed through the prism of proportionality, the Court’s capacity for goal ascertainment decreases with the lowering of a standard of proportionality (based on the broadening of the “margin of appreciation”). The less strict a scrutiny of proportionality, the less proportionality serves as a proxy for necessity, in turn reducing the latter standard’s potential as a tool for credible goal ascertainment. Appeals to the “protection of morals” as one of the Conventionmandated legitimate grounds for rights restrictions raise partly similar and partly different issues from those just mentioned. A similarity rests on the fact that the ambivalence about the meaning of “morals” has allowed the Court to avoid assessing the credibility of citing this particular aim: if the assessment of the aim were undertaken right at the stage of “legitimate goals” scrutiny, the Court would have to explicate its own understanding of “morals” for the purposes of the Convention analysis. It has never done so because also in the “protection of morals” cases, it has used (or under-used) the “legitimate goal” stage in the manner described in this chapter – in a cursory, perfunctory and non-critical way. The Court has never explained to the European public, therefore, whether an aim to protect some sections of the public from offence caused by certain practices held immoral by the majority constitutes a part of the legitimate aim of “protecting morals”. Rather, as shown in Section III of this chapter, it has oscillated between a moralistic approach, whereby the fact of majoritarian condemnation counts as an argument for a prohibition, and a liberal position, whereby moral standards held in the community do not warrant, per se, restrictive measures. Also, in failing to recognise a difference between moral positions regarding rightness or wrongness, and moral positions regarding legal tolerance or prohibition, the Court has failed to establish clear standards for the “protection of morals” exception and helped (in an unfortunate way) to maintain its rights-restrictive potential.

10 The Right to Justification in the Context of Proportionality: A Plea for Determinacy and Stability a la i n z ys s e t

I Introduction: The Right to Justification in Proportionality Analysis The basic function of proportionality in the context of judicial review is to assess whether an interference with a basic right can be justifiable under particular circumstances. While its precise wording and structure varies between jurisdictions, the proportionality test usually comprises (at least) three steps in the following order: (1) whether the state’s interference with a right pursued a legitimate aim (rational connection step); (2) whether it was the least intrusive measure (necessity step); and (3) whether it imposed a disproportionate burden on the individual (balancing step). When it comes to the normative point of the proportionality test, one can usefully distinguish between structural and substantive considerations. It is well established that the test provides structural guidance: “It helps judges identify and address all morally relevant considerations when resolving a rights issue.”1 But whether the test provides substantive answers to those questions is far less clear. Mattias Kumm’s contribution to the debate on proportionality addresses that crucial issue.2 In his view, when evaluating grounds for 1

2

Kai Möller, “‘Balancing as Reasoning’ and the Problems of Legally Unaided Adjudication: A Rejoinder to Francisco Urbina,” International Journal of Constitutional Law, 12 1 (2014), 223. Four articles by Mattias Kumm are examined in this chapter: Mattias Kumm, “Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement,” in George Pavlakos (ed.), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford: Hart, 2007); “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review”, Law & Ethics of Human Rights, 4 2 (2010), 142–175; “Is the Structure of Human Rights Practice Defensible? Three Puzzles and Their Resolution,” in Vicki C. Jackson and Mark Tushnet (eds.),

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limiting basic rights, courts should privilege the reasons that are justifiable to all members of a legal and political community constructed as free and equal individuals, not only to the parties to the case. Kumm hence adopts a “conception of law and politics as justice-seeking among free and equals.”3 Judges should neither apply a preestablished doctrine nor seek moral truth in adjudication. They should reaffirm the normative but ethically neutral foundations of a liberal-democratic order upon which they only have delegated authority. This approach grants the courts’ decisions legitimate authority. Kumm not only believes that this account can illuminate the structure of rights and their current practice but also that his account places us “in better position to interpret, and progressively develop that practice in a way to help it better realize its moral point.”4 In articulating this argument, Kumm relies on a philosophical conception of human rights defended by Rainer Forst,5 the right to justification (hereafter, RTJ). The injection of a rich philosophical view into proportionality analysis makes Kumm’s original and challenging, but it also allows for a dialogue between specialists of proportionality theory and specialists of human rights theory, which have not crossed paths a lot. Central to Forst’s RTJ account is the “principle of justification,”6 which requires that binding norms are reciprocally and generally justifiable within any political community.7 As I shall explain, this principle sits on an ontological premise of individuals as agents of justification and draws the normative implication that any legal and political order ought to pass the test of mutual

3

4 5

6 7

Proportionality: New Frontiers, New Challenges (Cambridge: Cambridge University Press, 2017); “The Turn to Justification: On the Structure and Domain of Human Rights Practice,” in Adam Etinson (ed.), Human Rights: Moral or Political? (New York: Oxford University Press, 2018). Kumm, “Is the Structure of Human Rights Practice Defensible? Three Puzzles and Their Resolution,” p. 57. Ibid., p. 52. Rainer Forst, “The Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach,” Ethics, 120 4 (2010), 711–40. Forst, “The Justification of Human Rights and the Basic Right to Justification,” 713. Forst’s account of the RTJ shares a number of basic features with the Rawlsian notion of public reason. His demand for reciprocity has a broader scope than Rawls’s, although I cannot precisely address this overlap within the remit of this chapter. As Langvatn explains in footnote 20 in Chapter 1 of this volume, “Forst takes a broader perspective on public justification than most defenders of public reason and states that ‘every claim to goods, rights or liberties must be justified in a reciprocal and general manner, where one side may not simply project its reasons onto the other but has to justify itself discursively.’”

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justifiability for that order to be granted legitimate authority. In the field of human rights theory, this view was notably presented as an alternative to two predominant accounts, the ethical and the political, as I explain in Section II and Section III. The RTJ importantly differs from those two accounts in defending a human right to democratic participation and political contestation. Kumm suggests that the RTJ should guide the reasoning of courts scrutinizing interferences with enshrined rights. The RTJ is borrowed from moral and political theory to offer normative guidance in the concrete and localized circumstances of the proportionality test. Yet, while giving examples of “excluded reasons”8 for limiting rights (e.g., teleological, perfectionist, consequentialist reasons), Kumm does not clearly explain if the test also helps identify what the RTJ positively requires, that is, which rights/duties and right-/duty-holders are particularly important to the pursuit of mutual justifiability as a normative ideal. Rather, Kumm places emphasis on the variant practice of human rights, which according to him is explained both contextually and conceptually, as I shall explain in Section III. I aim to show that this variance has structural limitations and that the proportionality test highlights those limitations. More precisely, I argue that the “tracking” role of the proportionality test helps specify and stabilize the normative content of the RTJ. This tracking role applies both empirically and normatively: Whereas the necessity step (2) of the test requires zooming on the very circumstantial facts of an interference, the legitimate aim step (1) and most clearly the balancing step (3) correspondingly require zooming on – hence specifying – the normative content of the RTJ. This chapter exemplifies the specification process at the balancing step of the proportionality test, and it tests this specification against the practice of the European Court of Human Rights (hereafter, the Court or ECtHR). My argument stems from the core right derived from the RTJ, namely the right to democratic participation. While the precise form of organization of a political community is not predetermined by the RTJ, both Forst and Kumm contend that the right to codetermine the terms governing this community is necessary to realize the RTJ. How does this basic procedural principle translate into more specific rights/duties and right-/duty-holders? I argue that the RTJ can specify this general right in three connected ways: (1) by identifying which specific rights (and their contributions) are particularly central to realizing the general right, and hence inform the courts’ balancing stage; (2) by identifying 8

Kumm, “The Idea of Socratic Contestation and the Right to Justification,” 145.

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specific duties that correlate with the general right; and (3) by identifying right-/duty-holders whose contributive role to protect and develop the general right is central. As a result, my argument does not challenge either the plausibility of the RTJ in human rights theory (defended by Forst) or the relevance of the RTJ to the proportionality test (defended by Kumm). Rather, I challenge the limited implications drawn from the former for the latter. The chapter is three-pronged and logically navigates from the abstraction of moral and political theory to the specifics of the proportionality test and its current practice at the European Court of Human Rights. In Section II, I present the core features of Forst’s account of the RTJ and how this account differs from rival accounts in human rights theory. I put emphasis on the right that best demarcates the RTJ from those accounts, namely the right to democratic participation, and explain how this right derives from mutual justifiability. I also show that while Forst contemplates a list of rights/duties that could follow from his abstract account, he ultimately resists specification. In Section III, I reconstruct the precise role that the RTJ should play in proportionality analysis as suggested by Kumm. I insist on the common thread between Forst and Kumm, namely how the principle of mutual justifiability should inform the evaluative part of the proportionality test. I put my argument to test in Section IV, where I place it in the context of the classical conflict between two equally protected rights, expression and privacy. I show that my argument offers guidance to judges in the three ways outlined above. I finally consolidate my argument in the concrete context of the European Court of Human Rights by showing how the Court has envisioned the conflict between expression and reputation in the proportionality test. I show how the RTJ can illuminate the Court’s reasoning with regard to its foundations, content, and limits – thereby offering a concrete illustration of my argument.

II The RTJ in Human Rights Theory (Forst) In this section, I introduce Forst’s account of the RTJ. The goal is to reconstruct the distinctive features of this account within the field of human rights theory before turning to Kumm’s use of the RTJ in proportionality theory and practice in the next section. This first section cannot render justice to the breadth of Forst’s account but will, I hope, be sufficient for its application to law and for my subsequent critique. Before playing any role in proportionality theory, either at the domestic or

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international level, the RTJ is notably presented by Forst as an account of the foundations of human rights and aims to offer an alternative to two predominant accounts of human rights in the literature, the ethical and the political. I shall therefore start by briefly explaining those two types of account. The ethical and political accounts (and the RTJ for that matter) respond to what Allen Buchanan has called the “justificatory deficit of human rights,”9 namely the lack of a normative account of what makes human rights distinctive among other moral rights and values. The ethical account suggests that what makes human rights distinctive is that those rights are held only by virtue of being human, and it hence explores what that normative basis could possibly be. One prominent ethical account of that sort (which Forst specifically addresses) is James Griffin’s influential argument that human rights protect the capacity for normative agency (or “personhood”). The capacity for normative agency is defined as follows: Anyone who has the capacity to identify the good, whatever the extent of the capacity and whatever its sources, has what I mean by “a conception of a worthwhile life; they have ideas, some of them reliable, about what makes a life better or worse.”10

Forst’s RTJ account both follows and challenges the core of Griffin’s ethical account. On the one hand, Forst agrees that “a notion of human dignity and normative agency (or ‘personhood’) stands at the center of human rights discourse.”11 On the other hand, Forst argues that Griffin’s account is problematically teleological and thereby falls prey to the problem of parochialism: It promotes a particular (yet comprehensive) idea of the good life. As Forst explains, Griffin’s account “depends on the belief that the good life can only be called such when it has been autonomously chosen and pursued.”12 As a result, Griffin’s account cannot meet the demand of universality that the very concept of human rights ought to meet. This critique of Griffin allows me to introduce one pillar of the RTJ. Rather than tying human rights to a rich notion of normative agency, Forst lowers the bar and ties it to the ability of giving and receiving 9

10 11 12

Allen Buchanan, “Human Rights and the Legitimacy of the International Legal Order,” Legal Theory, 14 1 (2008), 39. James Griffin, On Human Rights (New York: Oxford University Press, 2008), p. 24. Forst, “The Justification of Human Rights and the Basic Right to Justification,” 722. Ibid., 724.

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justifiable reasons – “a notion of respecting an other’s autonomy, which is neither attached to a reasonable contestable notion of the good nor requires a translation of a prudential ethical value ‘for me’ to a moral reason ‘for all’”13. This implies that while the status of normative agency crucially matters to the notion of human rights, the list of rights cannot be determined a priori. This is because such content is strictly contingent upon a “test of reciprocity and generality:”14 The moral basis for human rights, as I reconstruct it, is the respect for the human person as an autonomous agent who possesses a right to justification, that is, a right, to be recognized as an agent who can demand acceptable reasons for any action that claims to be morally justified and for any social or political structure or law that claims to be binding upon him or her. Human rights secure the equal standing of persons in the political and social world, based on a fundamental moral demand of respect.15

I shall say more about the contours of this basic premise and its practical implications in Section III of the chapter. For now, I turn to the political account of human rights, which Forst also seeks to supplant with the RTJ. It must be noted that the political account has been defended in different versions by Charles Beitz and Joseph Raz. What motivates those accounts is an attachment to the practical function of human rights in the international legal and political order. The distinctive function of human rights is either sovereignty-disabling (Raz)16 or at least capable of raising “international concern” (Beitz)17. Unlike what ethical theorists suggest, human rights do not have a single unifying normative foundation to be apprehended by moral reasoning. This reliance upon the international function of human rights is highly problematic for Forst as “this is to put the cart before the horse. We first need to construct (or find) a justifiable set of human rights that a legitimate political authority has to respect and guarantee, and then we will ask what kinds of legal structures are required at the international level.”18 Further, human rights cannot be conceived as conditions for 13 14 15 16

17 18

Ibid., 724. Ibid., 725. Ibid., 719. Joseph Raz, “Human Rights without Foundations,” in Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (New York: Oxford University Press, 2010). Charles Beitz, The Idea of Human Rights (New York: Oxford University Press, 2009). Forst, “The Justification of Human Rights and the Basic Right to Justification,” 726.

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noninterference between states before being conceived as norms that bind states to their subjects: “The first question of human rights is not how to limit sovereignty from the outside; it is about the essential conditions of the possibility of establishing legitimate political authority.”19 Other contributors to this debate have argued that a step is missing in Beitz’s reasoning: If some rights and not others are capable of generating international concern, one important task is to reconstruct this distinction in sound normative terms.20 This emphasis on the internal legitimacy of states allows me to introduce a second pillar of the RTJ. Forst believes that both the ethical and the political conceptions of human rights fail to identify the principal addressee of human rights, namely any social or political agent making a claim to legitimate authority. Forst speaks of “legitimate social or political order” and “claims to be binding.”21 To support this point, Forst points to the historical role of (human) rights and to the emancipatory movements that initiated the liberal revolutions of the seventeenth and eighteenth centuries: The language of these rights was a socially and politically emancipatory language, directed against a feudal social order and against an absolute monarchy that claimed “divine” rights for itself. That is a truism, yet an important one, for many of the views mentioned above, even some of those labelled as “political,” tend to neglect the essential political message of human rights.22

This suggests that while the concept of human rights “needs to have an independent and sufficient moral substance and justification,”23 it also has a distinctively political dimension in that it applies to any social or political order or institution. Furthermore, it is part of the concept of human rights that it calls for a practice of political autonomy through equal participation: It “interprets the very notion of justification in a normative way as a basic concept of practical reason and as a practice of moral and political autonomy.”24 Therefore, for Forst deriving political autonomy from normative agency and reciprocity of reasons naturally leads to defending a human right to democratic participation – a right whose very existence 19 20

21 22 23 24

Ibid., 726. See Massimo Renzo, “Human Rights and the Priority of the Moral,” Social Philosophy and Policy, 32 1 (2015), 127–148. Forst, “The Justification of Human Rights and the Basic Right to Justification,” 726. Ibid., 719. Ibid., 719. Ibid., 712.

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qua human right is denied by both the ethical and the political accounts. While various forms of political organization may ultimately obtain, failing to respect the equal right to have a say in the making of this order endangers the core of the RTJ: “The point of human rights is to strengthen those who dissent from certain ‘decisions’ for unequal representation which have not been and cannot be reciprocally justified.”25 So far, I have reconstructed the two legs of the RTJ. The first refers to our ontological status as agents of justification. This is the component that Forst shares with the ethical view like Griffin’s. The reason why Griffin’s account of normative agency cannot be endorsed is that it fails the test of reciprocity. In turn, Forst’s account of agency help question the purely political account of human rights. The standard of state sovereignty or self-determination that the political account focuses on cannot obtain without first justifying how they can bind states to their subjects. This is where the ontological and the normative meet: Our fundamental status as agents of justification implies that any legitimate political authority ought to meet the test of reciprocity and thereby calls for the right to democratic participation to be considered as a fundamental human right. It is the second (practical and institutional) pillar of the RTJ that I shall refer to in my critique. On this basis, I now turn to the legal context and examine how the RTJ could operate in one crucial context of judicial reasoning, namely the test of proportionality.

III The RTJ in Proportionality Theory (Kumm) We have seen that both Forst and Kumm view human rights as corresponding to those rights that cannot be denied to one another as agents of justification in a community of equals. Now, Forst makes only parsimonious connections to law in his exposition of the RTJ. This limited connections follows from the second pillar explained in Section I, namely that human rights are a precondition of any legitimate political and legal order: “They are moral rights of a specific kind which are directed to a political-legal authority and have to be secured in a legally binding form.”26 Although Forst says very little about his concept of law, the RTJ calls for the establishment of public institutions in charge of enforcing those rights: “The role of international institutions to prevent, judge, stop, or sanction 25 26

Ibid., 730. Ibid., 736.

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human rights violations”27 in that respect. This being said, it is interesting to observe that in a more recent article Forst does call – at least to some extent – for a more specific account of rights. Forst distinguishes between status-based rights, which are “necessary to institutionalize and secure the very status of being a justificatory equal free from legal, political or social dominate,”28 and reciprocitybased rights, which “cannot be reciprocally and generally rejected among equal justificatory authorities.”29 Whether a right belongs to the first or the second group depends on whether it can be directly derived from our status as agents of justification; rights of the second group “do not point directly to the status-implications of certain rights.”30 In addition, Forst identifies a distinctively legal task, the one of determining “how this can be realized in such a way that the moral status of being a justificatory equal acquires the best possible legal and political expression.”31 However, Forst does not specifically examine conflicts of rights – an issue that the proportionality test crystallizes. The work of Mattias Kumm has been seminal in specifying how the RTJ can operate in this domain. To begin with, it is clear that the RTJ cannot operate only at the international level. It applies to the broader realm of constitutional and public law defining the content and limits of public authorities interfering with individual rights. In several articles, Kumm argues that proportionality forms part of the very structure of human rights in a liberal political morality: “Human rights norms empower rights-holders to challenge existing power relationships by insisting that those relationships be susceptible to justification in terms of public reason.”32 More precisely, we 27 28

29

30 31 32

Ibid., 736. In this first group, Forst includes the rights to “life, bodily integrity, personal liberty, equality before the law and a fair trial, gender equality, non-discrimination, freedom of expression, freedom of collective action including political protest, freedom of political participation as an equal, freedom of movement, the right to citizenship, to means of social subsistence and a minimum standard of social life, and to protection against cruel punishment.” In Rainer Forst, “The Justification of Basic Rights: A Discourse-Theoretical Approach” (working paper, Normative Orders, Cluster of Excellence, Goethe University, Frankfurt, 2017), 20. In this group, Forst includes the rights to “religious liberty (of belief and practice), freedom of the press, to artistic expression and scientific inquiry, to educate one’s children and to education more generally, to privacy, to work and to exercise an occupation, and to personal property.” In Forst, “The Justification of Basic Rights.” Ibid. Ibid., 21. Kumm, “Is the Structure of Human Rights Practice Defensible?,” p. 65.

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have seen how the RTJ insists on the right to contest the legitimacy of any of those collectively binding norms. This follows from the premise of normative agency as ontological premise and mutual justifiability as normative horizon. Kumm endorses both in quite straight terms: “We should think of human rights as constituting a particular conception of law and politics: A conception of law and politics as justice-seeking among free and equals.”33 Like Forst, Kumm questions the law’s claim to legitimate authority generally. The context in which contestation comes into play at the legal level is the one of judicial review: Its very purpose is to offer a remedy for individuals to challenge the laws, acts, and decisions that the legislative and the executive branches produce and enforce. The location of contestation in judicial reasoning is even more salient in the proportionality review, because courts are required by law to scrupulously examine possible grounds for infringing one or several rights. There would be a lot to say on the origins and evolution and proportionality in constitutional and human rights adjudication – a topic that now has its particular literature.34 In Section V of the chapter, I do examine in more detail one concrete legal context of proportionality review, the one of the European Court of Human Rights. Cross-contextually, one can start from the basic premise that post– World War II human rights treaties, conventions, and constitutions list a number of general grounds for restriction (e.g., public safety, public order, health or morals, the rights and freedoms of others for the ECHR’s Articles 8–11). Those grounds are examined at the first step of the proportionality test: States must demonstrate that their interference pursued one or several of those legitimate aims. Then, courts examine whether the measure taken to pursue that aim was the least intrusive measure (or necessity). Those steps may be conceived as preconditions for courts to conduct the final step of the test, the balancing one. This step implies properly weighing the right (and the interest it protects) against the (public) interest of the respondent state party or public authority – an interest that may itself ground another (human) right and that constitutions and human rights conventions often label “the rights of others” (e.g., Articles 8–11 ECHR).

33 34

Ibid., 57. See Moshe Cohen-Eliya and Iddo Porat, Proportionality and Constitutional Culture (Cambridge: Cambridge University Press, 2013).

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Those restriction clauses are highly intriguing as they have an openender character. Their content and limits are not clearly specified. Kumm believes that the RTJ should inform the reasoning of courts in that respect. Kumm’s conditions for an infringement to be justified in the legal context mirror the conditions that Forst defines for a legitimate social or political order. As Forst targets Griffin’s teleological view of agency in the philosophical context, Kumm targets what he calls “political pathologies” – such as religious justifications for treating homosexuality as sin – on the same grounds but in the judicial context. In both cases, the reason offered cannot pass the test of mutual validity (the second pillar of the RTJ): “This type of reason, a reason relating to what it means to live a good, authentic life, might not generally count as legitimate reasons to restrict someone’s right.”35 Rather, it constitutes a comprehensive moral view that amounts to exercising illegitimate power over individuals. More generally, the RTJ’s deontological basis is at odds with any comprehensive, perfectionist, or consequentialist reasons. To pass the final stage of the test, the reason given by the defendant must precisely conform to the mutual justifiability condition. Kumm argues that “the proportionality test, structured as it is, effectively establishes a test of public reason.”36 The RTJ not only governs the application of the proportionality test. It also establishes the limits of judicial review. To support this point, Kumm points to the various doctrines of deference (e.g., the margin of appreciation at the ECtHR): “The point of these doctrines is to fix the difference between what justice requires (a question to be determined by other, more participatory process) and what is reasonable. Reasonableness here refers to the idea of justifiability among equals,”37 which confers legitimacy to public norms. Consequently, while one can reasonably disagree about the requirement of justice, reasonableness justifies the role of the judiciary taking action in the name of those foundational values. In Section V of the chapter, I give some examples of cases where the ECtHR operationalizes the distinction by relying on the notion of “democratic society” as a substitute for reasonableness in its proportionality test. In accordance with Kumm’s view, the ECtHR adjusts its level of scrutiny accordingly. When that is not the case, the ECtHR lowers it by using the margin of appreciation doctrine, as we shall see. 35 36 37

Kumm, “The Idea of Socratic Contestation and the Right to Justification,” 159. Kumm, “Is the Structure of Human Rights Practice Defensible?,” p. 69. Ibid.

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IV The Normative Content of the RTJ: A Plea for Determinacy and Stability Having introduced the RTJ in both philosophical and legal contexts, I can now turn to the main claim of the chapter. As outlined in the introduction, my argument does not challenge the relevance of the RTJ either in human rights theory (Forst) or in proportionality review (Kumm). Rather, I argue that the account, as currently presented, suffers from internal limitations that endanger its conceptual clarity, normative force, and practical guidance. Most importantly, I hold that there is a problematic discrepancy between the RTJ as presented by Forst, on the one hand, and its implications for the adjudication of constitutional and human rights law as defended by Kumm, on the other. I aim to show that it is the proportionality test itself – through its “tracking” function – that generates a more precise and stable content than what Forst and Kumm assume, without collapsing into the kind of comprehensive, perfectionist, or consequentialist view that they both fiercely reject. While I hold that this issue concerns both Forst and Kumm, my argument targets Kumm’s account of the proportionality test specifically. This is because the proportionality test requires judges to give more specific reasons – both on the empirical side and on the normative side. That is, the test must not only reconstruct the empirical circumstances of the interference in their best light – “was there a less intrusive measure to reach the goal?”– but also demonstrate that the reason for such a measure is legitimate – “is this interference excessively burdensome?” Yet, while giving examples of illegitimate reasons for limiting rights, Kumm remains almost silent on whether the same normative basis can help specify the normative content of the RTJ itself – which rights/duties are particularly important to its pursuit. When it comes to freedom of expression, for instance, Kumm insists on what he calls “excluded reasons” such as: “Reasons that discriminate between views on the basis of plausibility or correctness are excluded.”38 I argue that the proportionality test does more than just exclude reasons for interfering with rights. It also leads to refining – in a positive fashion – the normative content of the RTJ. There is a further reason to plead for a more specific and stable account of rights: Kumm greatly emphasizes the variation found in the practice of human rights, which according to him can be explained both by their irremediably local application and the reasonable disagreement 38

Kumm, “Political Liberalism and the Structure of Rights,” p. 145.

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that pervades the very concept of human rights. When it comes to context, Kumm explains that “the human rights norms are only properly specified locally, if they take account of the relevant local contexts.”39 Variation does not, however, stop at the surface of communities’ history and practice. The very concept of human rights is pervaded by reasonable disagreement. As a result, its content and scope depend on “a participatory process of contestation and deliberation at the end of which different settlements about rights might well be reached.”40 The proportionality test, I argue, also identifies some basic structural limits to this variation. This is because the test implies balancing two rights that have an equal legal status. In what follows, I illustrate my argument by returning to both Forst and Kumm separately before merging the two in a final critique. In the case of Forst, I show that the RTJ justifies not only that binding norms are mutually justifiable, but it also justifies establishing appropriate procedures that contribute to realizing this ideal. Yet, Forst is almost silent on the norms (rights/duties and right-/duty-holders) that should govern those procedures. More specifically, Forst makes a strong case for a right to democratic participation. But he says almost nothing about the (wave of) duties that the democratic procedure consists of. The same is true for Kumm. As much as “excluded reasons are complementary structural features of rights in liberal constitutional democracies,”41 I argue that the RTJ specifies the rights/duties and right-/duty-holders that serve the pursuit of mutual justifiability. This is because the test amounts to examining rights that are all, in abstract terms, necessary to mutual justifiability. The test is, however, not about abstraction – it is about arbitration and specification, as we have seen. In the last part of this section, I shall use the conflict between expression and privacy to illustrate the specification process.

1 The Right to Democracy in the RTJ Let me start with Forst. As already outlined, Forst assigns legal human rights the crucial role of concretizing the RTJ: “The legal and political function of human rights is to make this right socially effective, both substantively and procedurally.”42 I shall concentrate here on the 39 40 41 42

Kumm, “The Turn to Justification,” p. 256. Ibid., p. 257. Kumm, “Political Liberalism and the Structure of Rights,” p. 147. Forst, “The Justification of Human Rights and the Basic Right to Justification,” p. 712.

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procedural component of human rights as informed by the RTJ. Forst further explains that “the procedural aspect highlights the essential condition that no one should be subject to a set of rights and duties – and to a political-legal rights regime – the determination of which he or she cannot participate in as an autonomous agent of justification.”43 But nowhere does one find an approximate list of those enabling conditions – which, if they are to make their way into law and judicial practice, must take the form of enforceable rights and duties. Forst does mention the possibility of a list but does not elaborate on its content: “That kind of list is to some extent general and subject to further elaboration, but it expresses basic standards of respect that must be secured in the form of basic rights.”44 From that standpoint, my project of specifying the normative content of the RTJ prolongs Forst’s interest in making the procedural aspect of the RTJ effective and concrete enough to pursue political autonomy. I believe the room for specification is even clearer when it comes to the right to political participation fiercely defended by Forst. More precisely, like Kumm, Forst explicitly refers to political contestation as a necessary component of the RTJ: “One cannot limit the right to democracy by appealing to the principle of collective self-determination, for that is a recursive principle, with a built-in dynamic of justification that favors those who criticize exclusions and asymmetries.”45 While Forst readily warns that the precise form of political organization is not predetermined by the RTJ, he fiercely holds that the right to codetermine the terms governing this organization is strictly necessary. As outlined in Section II, the historical role of human rights as resisting various forms of political oppression or marginalization reinforces the centrality of the procedural right to democratic participation among other (even more substantive) rights. Beyond historical considerations, the RTJ is anchored in the mutual justifiability condition – a normative one. Applying this condition “cannot, in turn, be determined without the possibility of everyone participating effectively in the practice of justification.”46 The core question I ask is whether the RTJ can, as it stands in Forst and Kumm, specify a more specific and stable set of rights/duties and right-/ duty-holders that enables the procedural conditions of the right to democratic participation. This is the most clearly derived right from its 43 44 45 46

Ibid., 712. Ibid., 736. Ibid., 735. Ibid., 736.

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basic premise of human beings as agents of justification. Another way to plead for determinacy is to question the status of the right to democratic participation as right. Two arguments support this interrogation: First, at the legal level, there is no such thing as a right to democracy in the text of constitutions or international covenants. Rather, those documents (e.g., the ECHR) make explicit that several rights are central to the democratic process, freedom of expression (Article 10 ECHR), freedom of assembly (Article 11 ECHR), or the right to free elections (Article 3 Protocol 1 ECHR). Second, at the conceptual level, rights can be understood as intermediaries between interests and duties: Following Joseph Raz, an interest must be sufficiently important to hold others under a duty.47 This invites to view the right to democracy as a democratic interest that correlates with a wave of rights and duties. As Samantha Besson puts it, “The phrase ‘human right to democracy’ can only be used therefore as shorthand for a human right to a given democratic interest.”48 Now, all I said about Forst’s abstract account of the RTJ applies even more clearly to Kumm’s concrete context of proportionality. But before developing this point further, it is worth noting that the proportionality test is, according to Kumm, a particularly useful tool to examine the practical reality of rights. More specifically, it can help detect the pathologies of politics that I outlined in Section III. Kumm holds that “there is another form of thoughtlessness, however, that judicial review is reasonably good at countering. It concerns lack of serious engagement with the realities to which the law applies.”49 I fully agree that judicial review and the proportionality test specifically bring those realities closer, both empirically and normatively. But the tracking role of the RTJ also applies normatively at the legitimate aim and balancing steps, as Kumm also explains: “The other two – legitimate ends and balancing – are normative and express the requirement that principles be realized to the greatest extent possible given countervailing normative concerns.”50

47 48

49 50

See Joseph Raz, “On the Nature of Rights,” Mind, 93 370 (1984), 194–214. Samantha Besson, “The Human Right to Democracy – A Moral Defence with a Legal Nuance” (paper presented at “Definition and Development of Human Rights and Popular Sovereignty in Europe” Conference, Frankfurt, 2013), 61, available at http://www .venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-UD(2010)003-e. Kumm, “The Idea of Socratic Contestation and the Right to Justification,” 160. Kumm, “Political Liberalism and the Structure of Rights,” p. 8.

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Like Forst, Kumm insists on democratic values and principles to conduct constitutional and human rights review. More specifically, Kumm draws an analogy between the judge and the legislator in the normative criteria that apply to their respective deliberations: “When courts apply the proportionality test, they are in fact assessing whether or not legislation can be justified in terms of public reasons, reasons that every citizens might reasonably accept.”51 The idea that one can disagree with the content of a decision and yet deem it legitimate has been further refined in the literature on judicial review. Wojciech Sadurski helpfully defines the concept as “a halfway along a spectrum between legal validity and justice: Stronger than that of validity because it confers some moral authority upon a norm, but weaker than that of justice because reasonable people can disagree about the justness of a particular norm.”52 I shall give examples of such a norm in the next section of the chapter with cases from the ECtHR. While not distinctively legal, this concept of legitimacy applied to courts implies that that those institutions ought to remain agnostic to moral truth: “our task is to police the boundaries of the reasonable.”53 This view frontally opposes those that think that courts engage in moral truth-seeking when handling hard cases.54 Now, what explains that one can disagree with the content of a judicial decision and yet go along with it primarily comes from the democratic procedure through which the outcome is issued – a procedure founded on the value of political equality and ultimately reflected in the equal right to vote. But the right to vote is certainly not the only procedural requirement here. For instance, failing to implement deliberative procedures preceding the formal stage of the vote blatantly violates political equality. Like Forst, Kumm insists on this aspect and calls it “the procedural prong of the constitutional legitimacy requirement”: “What does deserve a great deal of thought is how to design the procedures and institutions that institutionalize the Socratic contestation.”55 That is exactly the project pursued in this chapter: How can the RTJ generate a more determinate and stable content with regard to deliberative procedures specifically?

51 52

53 54

55

Kumm, “Is the Structure of Human Rights Practice Defensible?,” pp. 168–169. Wojciech Sadurski, “Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities”, Global Constitutionalism, 4 3 (2015), 401. Kumm, “Is the Structure of Human Rights Practice Defensible?,” p. 169. See George Letsas, “Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer,” The European Journal of International Law, 21 3 (2010), 509–541. Kumm, “The Idea of Socratic Contestation and the Right to Justification,” 171.

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2 Refining the RTJ: Rights/Duties and Right-/Duty-Holders As explained in Section IV.1, my plea for determinacy and stability does not apply so much to the basic list of rights that structure the democratic procedure (e.g., freedom of expression, freedom of assembly, the right to vote), as those do find a proper place in Forst’s and Kumm’s accounts. Rather, it focuses on specifying the rights/duties and right-/duty-holders that correlate with those abstract moral rights. To recall, Kumm’s conditions for an infringement mirror the conditions that Forst establishes for a legitimate social or political order to be legitimate, namely that they ought to be mutually justifiable. Now, even if the conflict is not framed as such in judicial reasoning, the proportionality test ultimately amounts to balancing two rights that stand in genuine conflict. This conflict (e.g., between expression and privacy) can also occur between the right of one individual against the cumulated rights of a group of individuals (e.g., “the protection of the rights and freedoms of others” under Articles 8–11 ECHR). Let me zoom in on the classical conflict between expression (e.g., Article 10 ECHR) and privacy (e.g., Article 8 ECHR). The typical question raised in the proportionality test in this case is whether it is justifiable to infringe upon privacy given the preeminence of freedom of expression in a liberal-democratic society. Conflicts imply that one cannot protect one right without restricting the other. The ECtHR has, for instance, come to recognize a genuine conflict here: The Court must verify whether the authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in this type of case, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right of the persons . . . to protect their reputation, a right which is protected by Article 8 of the Convention as part of the right to respect for private life.56

How can the RTJ help in this context? First, I argue that the RTJ does not only flag the general right to democratic participation as particularly important, but also more specific and practicable rights. Most importantly, freedom of expression appears as the primary vehicle for individuals not only to be publicly recognized as equal agents of justification (expressive function) but also to pursue mutual justifiability itself (instrumental 56

Chauvy and Others v. France, Appl. No. 64915/01 (Judgment of 29 June 2004), paras. 229–230.

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function). That is, exercising freedom of expression first expresses equal membership in the democratic community. In the words of Eric Barendt, “It is the equal rights of everyone to participate in society through the exercise of free speech and of the related freedom of assembly and association, which underpin the commitment to democratic government.”57 In addition, freedom of expression appears as the primary tool to pursue mutual justifiability itself. To recall, for Forst the RTJ is the right “to be recognized as an agent who can demand acceptable reasons for any action that claims to be morally justified and for any social or political structure or law that claims to be binding upon him or her.”58 This “demand” for acceptable reasons within a community of equals crucially requires deliberative practices directly protected and nurtured by freedom of expression. It presupposes a deliberative procedure between speakers and listeners governed by the quest for mutual justifiability. The role of deliberation for the sake of justifiability is well explained, for instance, by the theorists of deliberative democracy: “In such a procedure participants regard one another as equals; they aim to defend and criticize institutions and programs in terms of considerations that others have reasons to accept, given the fact of reasonable pluralism and the assumption that those others are reasonable.”59 One caveat is in order here. It is notably difficult to identify the boundaries of the deliberative community, which falls back onto the question of the demos that has haunted democratic theory for quite some time.60 This boundary problem however concerns any attempt to circumscribe a political community. It is not distinctive of the RTJ. As far as human rights law (and constitutional law) are concerned (the broad context of this chapter), the mutual justifiability principle should apply to the authority of states with respect to those rights, whether this authority is territorial or extraterritorial.61 The exercise of this authority sets the boundaries of the political community of human rights law. Consequently, freedom of expression – what falls within the scope of 57 58 59

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Eric Barendt, Freedom of Speech (Oxford: Oxford University Press, 2005), p. 20. Forst, “The Justification of Human Rights and the Basic Right to Justification,” 719. Joshua Cohen, “Procedure and Substance in Deliberative Democracy,” in Thomas Christiano (ed.), Philosophy and Democracy: An Anthology (New York: Oxford University Press, 2003), p. 21. On this point, see Robert E. Goodin, “Enfranchising All Affected Interests, and Its Alternatives,” Philosophy & Public Affairs, 35 1 (2007), 40–68. On this point, see Samantha Besson, “The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts To,” Leiden Journal of International Law, 25 4 (2012), 857–884.

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that right – correlatively applies to this set of norms and defines the deliberative space in which mutual justifiability ought to be pursued. From this standpoint, the right to privacy in contract does not have the same direct link to democratic participation and mutual justifiability. Rather, the domain of privacy is delineated by those reasons that do not pass the test of mutual justifiability. This is the view advanced by scholars of privacy that have recently attempted to reconceptualize privacy as the “flip-side of public justification.”62 The private and the public can be viewed as interconnected vessels: “The material that public justification requires us to keep out of each other’s faces is private for the purposes of political life.”63 “This means that when we claim privacy by way of protecting our autonomy, we do not make a claim to withdraw from political life, but rather make a claim to protect certain forms of political engagement.”64 The indirect role of privacy vis-à-vis political engagement and mutual justifiability – both enabling and protecting it – illustrates how abstract normative principles can specify the content of scope of rights that initially enjoy the same legal status. In this sense, my argument for determinacy and stability aims to avoid both the strict equality of rights (for the purpose of pursuing the RTJ) and the strict hierarchy of these same rights. Indeed, this specification still leaves a significant space for ad hoc balancing. As Annabelle Lever explains, “Instead, we will have to identify and evaluate the expressive and privacy interests at stake, when conflict arises, bearing in mind that if the right to publish, in a democracy, does not depend on literary, moral or political merit, respect for privacy is not just for the virtuous, sensible or the uninteresting.”65 A second point applies to publicity here. Freedom of expression may enable deliberative and justificatory practices, but only if the views or opinions expressed can actually make it to the public arena. Publicity must be effective. Otherwise, the very reason why it ought to be protected and weighed against interferences with other rights collapses. While this may sound intuitively clear, there are plenty of hurdles in the real world that can prevent a view from being made public at different stages of the 62

63 64 65

Dorota Mokrosinska, “Privacy and Autonomy: On Some Misconceptions Concerning the Political Dimensions of Privacy,” Law and Philosophy, 37 2 (2018), 22. Ibid., 14. Ibid., 21–22. Annabelle Lever, “Privacy, Democracy, and Freedom of Expression,” in Beate Roessler and Dorota Mokrosinska (eds.), Social Dimensions of Privacy: Interdisciplinary Perspectives (Cambridge: Cambridge University Press, 2015), p. 175.

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process. As we shall see in the next section, hurdles are found at the formal stages of the procedure through the right to vote (e.g., when a linguistic minority cannot fully understand voting material)66 or at the deliberative stages through freedom of expression (e.g., when a journalist is imposed a large fine for publishing).67 The integrity of the democratic procedure and the pursuit of the RTJ crucially depend on it. Courts will therefore be particularly attentive to those hurdles. Those hurdles in fact specify the duties that correlate with the right to democratic participation in given circumstances. Those empirical conditions may be highly specific, but their relevance – whether they are in fact sufficient for states to interfere – can be highlighted only via appropriately tailored normative criteria. These two first points explicate how the RTJ can specify the normative role and content of rights in the proportionality test. Now, I want to further develop the argument by extending it to right-/duty-holders. As we just saw, it is necessary that all subjected individuals have their views and opinions taken into account in the democratic procedure. But in order to be full members of that community, they must be able to inform, to get informed, and to debate with others. A number of societal actors gain prominence to perform those functions. Most importantly, those processes cannot take place without having in place a free and diverse press and media that report, mediate, and structure those processes. The role of scientists, intellectuals, and public interest groups (e.g., NGOs) are particularly concerned for the contribution they may make to those processes. Moreover, the role of the media in informing the public extends to providing multiple sources of information and offering a pluralistic and therefore representative overview on the matter at hand. It is rather rare for a state to function without establishing and/ or authorizing channels of communication. But it remains challenging for states to effectively guarantee a free, pluralistic, diverse, and contradictory press and media. Now again, those implications may be straightforward, but they become particularly relevant in the case of conflicts of rights. This is why the RTJ does not ultimately solve conflicts of rights, but only helps weigh the rights (the interest they protect) at stake in a more determinate and stable way.

66

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See Şükran Aydın and Others v. Turkey, Appl. Nos. 49197/06, 14871/09, 23196/07, 50242/ 08, 60912/08 (Judgment 22 January 2013), para. 52. See Kasabova v. Bulgaria, Appl. No. 22385/03 (Judgment of 19 April 2011), para. 71.

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V The Practice of the ECtHR I have now shown how one can specify both the rights/duties and right-/ duty-holders that correlate with the RTJ. With a view to consolidate my argument, I want now to bring some empirical elements, namely the predominant practice of the European Court of Human Rights, and reconstruct how the Court has applied the proportionality test with regard to the conflict between freedom of expression (Article 10 ECHR) and privacy (Article 8 ECHR, more specifically the right to reputation) that I used in Section IV. I argue not only that the RTJ can help interpret some portions of the Court’s reasoning with respect to this conflict but help show how the Court has further refined the normative content of those conflicting rights in a stable way, thereby illustrating the specifying function of the proportionality test. As we saw earlier, the proportionality test is often portrayed as threepronged. In the case of the European Convention on Human Rights, those three steps read as follows: The first step reviews whether the interference pursued a “legitimate aim”: the protection of public safety, public order, health or morals, or for the protection of the rights and freedoms of others, etc.). And the second step requires examining if the interference was “necessary in a democratic society” and whether it responded to “a pressing social need.” The last phase therefore comprises both the necessity and balancing steps of the test. Let us now move straight to how the Court has addressed this last step in the context of the conflict between expression and reputation (under the right to privacy). Oberschlik v. Austria (no. 2) refers to a case where the applicant was convicted and ordered to pay a fine for having used the term “idiot” (based on Article 10 ECHR) in reaction to a speech of the late Austrian right-wing politician Jörg Haider. When examining the conflict, the Court held the following: As to the limits of acceptable criticism, they are wider with regard to a politician acting in his public capacity than in relation to a private individual. A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly.68 68

Oberschlik v. Austria, Appl. No. 20834/92 (Judgment of 1 July 1997), para. 29.

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To justify the heavier weight of the right to freedom expression, the Court therefore emphasizes that the term “idiot” was used in the context of a distinctively public debate, namely the standing of an elected politician. One can interpret the Court’s reasoning from the RTJ’s standpoint, namely that beyond the formal right to vote, the views and opinions of all on matters of public debate crucially matter to the pursuit of mutual justifiability. Having exemplified how the RTJ can help interpret the Court’s balancing of rights, I now turn to the right- and duty-holders, that is, prominent social actors that are structurally positioned to inform practices of mutual justification. A particularly interesting case in this respect is Von Hannover v. Germany (nos. 1 and 2), in which the Court does not only circumscribe public interest issues but also identifies the role of the press as the “watchdog of democratic society” with respect to those issues: The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest . . ., it does not do so in the latter case.”69

The role ascribed to the press by the Court matters to the extent that it has derived a positive obligation in the seminal case of Lingens v. Austria: While the press must not overstep the bounds set, inter alia, for the protection of the vital interests of the State . . ., it is nevertheless incumbent on the press to convey information and ideas on political issues, even divisive ones. Not only has the press the task of imparting such information and ideas; the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.70

In other words, democracy (understood in normative terms) is used by the Court to justify the normative weight of expression in this conflict, which then explains the crucial role of the press. For one to form an opinion and effectively exercise one’s right to democratic participation 69

70

Von Hannover v. Germany (no. 1), Appl. No. 59320/00 (Judgment of 24 June 2004), para. 63. Lingens v. Austria, Appl. No. 9815/82 (Judgment of 8 July 1986), para. 41.

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with a view to pursuing mutual justifiability, one needs to be informed about which issue is at stake, receive the opinions of others on that issue, and then offer one’s views and opinion in return. Interestingly, the Court generally views expression as aiming to find acceptable reasons to everyone involved – thereby explicitly echoing mutual justifiability. As the Court firmly held in United Communist Party of Turkey and Others v. Turkey, From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.71

The more structural implication of the Court’s attachment to freedom of expression is the allocation of a thin margin of appreciation to the respondent state party. In contrast, other rights are not assigned the same prominent role and therefore lend themselves to a thicker margin of appreciation, such as privacy (Article 8 ECHR) and freedom of religion (Article 9 ECHR). The most illustrative cases of the margin of appreciation under Article 9 perhaps pertain to the wearing of religious symbols – and, most famously, the issue of head scarfs in schools and universities. It appears from the case law that the prohibition of such religious symbols amounts to an interference with the right to manifest religious beliefs. However, the Court is very likely to recognize a certain margin of appreciation to the respondent state party. It argues either that the state party needs to prevent fundamentalist religious groups from exerting pressures on people that may amount to proselyte practices, or simply that there is not enough consensus across state parties on the scope of protection. This is the case for instance in Leyla Şahin v. Turkey, in which the applicant was prohibited from wearing a headscarf at university and thereby refused to attend classes: Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance . . . . It is not possible to discern throughout Europe a uniform conception of the significance of religion in society . . . and the meaning or impact of the public expression of a religious belief will differ according to time and context . . . . Rules in this sphere will consequently 71

United Communist Party of Turkey and Others v. Turkey, Appl. No. 29400/05 (Judgment of 19 June 2012), para. 57.

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vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order . . . . Accordingly, the choice of the extent and form such regulations should take must inevitably be left up to a point to the State concerned, as it will depend on the specific domestic context.72

It is important to notice that the Court makes a distinction between public space on the one hand and public schools or universities on the other.73 However, the Court does not engage in a similar search for consensus when it examines the content and scope of freedom of expression, for instance. Its reasoning explicitly suggests that some rights/duties and right-/duty-holders are inferred from the overarching concern with the preconditions of a “democratic society,” which, in my reconstruction, follows from Forst’s RTJ and is also coextensive with the realm of what Kumm sees as reasonable, or which falls within public reason.

VI Conclusion The objective of this chapter has been to more thoroughly examine the relation between a philosophical principle, the RTJ, and one legal context in which this principle can operate, the proportionality test. The purpose of the proportionality test is practical and empirical: It ought to guide the reasoning of judges examining interferences under specific conditions. Yet, this test often and ultimately amounts to balancing two rights that have the same initial normative weight. I have argued that the RTJ has the resources to generate a more determinate normative content, and that the proportionality test in fact requires that specification for it to play any meaningful role. More generally, I find it counterintuitive to hold that judicial review and the proportionality test can better track political pathologies without refining the criteria whose violations constitute those pathologies. In other words, it is unclear to me how the evaluation of a factual situation can be improved without a more specific normative criterion. If it is possible to identify what falls outside the RTJ, symmetry requires that it is also possible to characterize what (approximately) falls within RTJ. Nothing in this argument amounts to saying that the RTJ is the panacea for all the problems and vagueness of proportionality analysis, however. 72 73

Leyla Şahin v. Turkey, Appl. No. 44774/98 (Judgment of 10 November 2005), para. 80. Ahmet Arslan and Others v. Turkey, App. No. 41135/9, (Judgment of 23 February), para. 49.

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I have only shown that the content and scope of two competing rights and their correlative duties can be informed by the RTJ, not that it suffices to establish a basis to definitely and generally solve conflicts of rights. To illustrate my argument, I focused on the right to democratic participation and its procedural conditions for two reasons. First, the right is clearly derived from the RTJ in both Forst’s and Kumm’s accounts. Second, this right cannot be operationalized and realized without specifying its constitutive and practical components. I contended that the conjunction between the RTJ and the stable empirical conditions of a liberal democracy can, for instance, help provide a specification of the rights/duties and right-/duty-holders that help or endanger the realization of that right. With a view to further consolidate my argument, I also placed the RTJ in the context of the classical conflict between expression and reputation. I finally offered an overview of the practice of the ECtHR and showed how the RTJ can illuminate the Court’s reasoning.

11 “Going Public”: Reasoning and Justification at the World Trade Court s i v a n s h l o m o ag o n

I Introduction The exercise of power by international courts requires legitimacy. But as international courts come to play an ever more significant role in global governance, evolving into autonomous actors wielding extensive public authority,1 their traditional source of legitimacy embedded in state consent seems no longer sufficient, and additional, more convincing grounds are needed to sustain the claim for legitimacy of these empowered judicial institutions.2 In the search for such grounds, several scholars in recent years have pointed to “public reason” or “public justification” as a possible supplementary source of legitimacy within the reach of international courts.3 Admittedly, many aspects of international courts’ legitimacy lie beyond the 1

2

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A. von Bogdandy and I. Venzke, “In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification,” European Journal of International Law, 23 (2012), 17–19 (arguing that international courts are institutions exerting public authority as they condition parties to the dispute and other subjects of the legal order in the exercise of their freedom). Ibid.; N. Grossman, “The Normative Legitimacy of International Courts,” Temple Law Review, 86 (2013), 61. See S. A. Langvatn, “Should International Courts Use Public Reason?,” Ethics & International Affairs, 30 (2016), 355; W. Sadurski, “Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities”, Global Constitutionalism, 4 (2015), 396; M. Kumm, “The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and Beyond the State,” in J. L. Dunoff and J. P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009); M. Kumm, “The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review,” Law & Ethics of Human Rights, 4 (2010), 140; E. Petersmann, “Human Rights, International Economic Law and “Constitutional Justice,” European Journal of International Law, 19 (2008), 769; E. Petersmann, “Need for a New

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courts’ control. Nevertheless, scholars argue that the use of public reasons and public forms of reasoning offers a way in which international courts themselves can address serious legitimacy concerns raised against them by ensuring that their own decisions, as well as the states’ decisions they are called upon to review, can be publicly justifiable or reasonably acceptable to all the subjects affected by them.4 On this public reason approach to legitimacy, the normative legitimacy of international courts can thus be derived not only from a single act, such as state consent, but rather from a dynamic practice of “deliberation and reason giving that is not a one-off, but an ongoing process of justification” to be carried out by international courts vis-à-vis their diverse subjects,5 which go far beyond the disputants or the limited public of member states (to include, inter alia, individuals, civil society actors, and other international institutions). It is the aim of the present contribution to show that such ideas of public reason and public justifiability in international adjudication are not merely theoretical conceptions of legitimacy and legitimation; rather, they are discernible in the actual practice of at least one prominent international adjudicative body – the World Trade Organization Dispute Settlement System (WTO DSS). A close examination of the jurisprudence developed by this system over the last two decades or so reveals a range of practices often associated with the public reason tradition, especially in cases that go beyond the WTO’s core trade domain, namely “trade-and” cases in which the DSS is called upon to scrutinize national policies pursuing “noneconomic” public values (such as health or environmental protection), and where the system’s legitimacy concerns are consequently intensified. As the chapter elaborates, the various substantive and deliberative public reason orientations identified in these types of WTO disputes may be seen not just as a strategic attempt by the DSS to build up and sustain the support for its authority among expanding circles of audiences, but as a sincere recognition by the DSS of the necessity to expand the normative bases of its legitimacy in a world where its decisions exert effects over wider ranges of issues and stakeholders. To put it another way, the public reason patterns followed in WTO jurisprudence reflect an evolving sensitivity on the part of the DSS to the challenges of legitimacy generated by its increasing exercise of public authority, and its consequential attempts to alleviate these

4 5

Philosophy of International Economic Law and Adjudication,” Journal of International Economic Law, 17 (2014), 639. Langvatn, “Should International Courts Use Public Reason?,” 355–356. See Chapter 1 in this volume.

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challenges by drawing on the capacity of legitimation that is embedded in the judicial process and judicial reasoning themselves. As our analysis shows, this WTO judicial endeavor of legitimation through public reason is not asserted outright; rather, it is concealed in a range of substantive and procedural jurisprudential techniques displayed by WTO adjudicators in a long line of trade-and cases. Yet when taken together, these various techniques exhibit a continuous effort by the DSS to “go public” both in its function as a power-holder having to publicly justify its decisions vis-à-vis a broader audience beyond WTO member states, as well as in its role as a court charged with the task of reviewing the public justifiability of acts and decisions taken by other public officials (i.e., those operating within the states under the DSS’s jurisdiction). By unraveling these various layers of public reason that seem to reside in WTO jurisprudence, the present contribution provides an opportunity to take a closer look at one central forum of public reason in international adjudication, to analyze the various ways in which the concept of public reason can be seen as relevant for international courts, and to assess the limitations of this concept as a means for international courts to enhance the legitimacy of their rulings and consolidate the legitimacy of their offices more generally. The chapter proceeds in four sections. Section II sets the scene by providing a brief account of the legitimacy gap that international courts have come to face and the ensuing arguments raised, which point to public reason as an appropriate normative requirement for international courts to meet, with a view to alleviating their legitimacy deficit. The same section then elaborates on the case in point – the WTO DSS – discussing the extensive reach of its public authority and the challenges brought against its legitimacy, with an emphasis on trade-and conflicts. Against this backdrop, Section III unfolds the public reason account of the WTO DSS, analyzing the substantive and procedural dimensions along which WTO adjudicators have attempted to entrench the legitimacy of their rulings by ensuring that the reasons and reasoning underlying those rulings are such that might be reasonably accessible and acceptable to a broad audience of affected subjects in and outside the WTO, at both the national and global levels. Following the public reason account provided in Section III, Section IV reflects on the promise as well as the constraints of using public reason as a way for international courts such as the WTO DSS to address their normative legitimacy predicament. Section V concludes.

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II Setting the Stage 1 International Courts and Their Legitimacy Gap For a long time, it was state consent that constituted the primary basis for the legitimacy of international courts. States, in turn, were also assumed to be the exclusive legitimating audience or community among whom the claim of international courts for legitimacy were to be maintained. However, in the present day of globalization and judicialization of international law, this traditional account of international courts’ legitimacy seems to no longer hold. During the last few decades, the world has seen an immense growth in the number and usage of international courts. These quantitative changes in the global judicial scenery have been intertwined with equally notable qualitative changes in the nature and powers of international adjudicative bodies.6 An ever-widening range of issues now fall under the jurisdiction of international courts (e.g., human rights, trade, investment, and the use of force). Furthermore, in many cases, this jurisdiction is no longer contingent upon the specific consent of states but rather is compulsory in nature. As such, the jurisdiction of many international courts may now be invoked unilaterally against those subject to their authority, in a manner quite similar to that which prevails in domestic legal systems. In addition, most international courts now operate within the framework of specific interstate treaty regimes (e.g., the European Union (EU) or the WTO), whose norms the courts are required to interpret and apply. Within such international legal regimes, international courts are expected not merely to resolve disputes but also to promote the regime’s underlying goals, overcome international cooperation problems, and hold states (or other entities) accountable to the international rules agreed upon. To these ends, international courts are therefore increasingly engaged in what is effectively administrative and constitutional review of acts and measures of other decision-makers, who form part of national and international governance structures.7 As Armin von Bogdandy and Ingo Venzke note, international courts in their modern form, like few other institutions, “serve the promise of international law to contribute to justice” and to foster the rule of law in 6

7

Y. Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary,” European Journal of International Law, 20 (2009), 73. K. J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton: Princeton University Press, 2014), pp. 13–17.

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the global community.8 But this generally welcome development, as the authors rightly add, entails new problems, since in the wake of their empowerment international courts have risen to become actors whose function in effect amounts to the exercise of “international public authority,” a function going far beyond their traditional role as mere resolvers of bilateral disputes.9 By restating the law in a particular case, international courts no longer simply determine the rights and duties of the immediate disputants, but rather they shape the development of international law prospectively and contribute to its making.10 Through each decision that so develops and adds to the law, international courts influence the rights and obligations of a broad range of others beyond the bilateral dispute and disputants, such as third states, corporations, individuals, and other international institutions. As a result, international courts increasingly “pierce the veil of the state,”11 no longer dealing solely with states as unitary entities but also interacting with and affecting the interests and opportunities of actors within the state, as well as in the global public sphere. In this newly emerging reality, it has been argued that the traditional legitimacy account justifying “the international judiciary out of the consent of states and out of the consent of the disputing parties to submit to the court’s jurisdiction” appears to be severely lacking.12 That is not to say that this conventional legitimacy construction of international courts, embedded in the classic state-centered conception of international law and the traditional view of these courts as being “agents” or “trustees” of their founding states, has lost its relevance. As states maintain a special position vis-à-vis international courts (by controlling their mandates, budgets, and appointments, among others), this legitimacy account continues to be important, and international courts themselves often tend to espouse this viewpoint when relating to the foundations of their legitimacy.13 Thus, for example, the WTO’s Appellate Body (AB) has stated: “The WTO Agreement is a treaty – the international equivalent of a contract. It is self-evident that in an exercise of their sovereignty, and in 8

9 10

11 12 13

A. von Bogdandy and I. Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford: Oxford University Press, 2014), p. 2. Ibid. Grossman, “Normative Legitimacy,” 68; A. von Bogdandy and I. Venzke, “On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority,” Leiden Journal of International Law, 26 (2013), 55–57. Sadurski, “Supranational Public Reason,” 410. Von Bogdandy and Venzke, In Whose Name?, p. 3. Ibid.

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pursuit of their own respective national interests, the Members of the WTO have made a bargain.”14 Nonetheless, it is argued that while state consent “continues to constitute an important resource of legitimacy” for international courts, state consent alone no longer sufficiently sustains many of the decisions they make and the extensive public authority they have come to exert.15 Rather, to be legitimate, the authority of international courts must be based on additional, more convincing, substantive, and procedural grounds, and must be established amid wider circles of affected stakeholders, well beyond their founding states.16

2 Public Reason: A Source of Legitimacy in the Hands of International Courts? With the legitimacy of the evolving international judiciary coming under ever closer scrutiny,17 some have suggested that one possible source of legitimacy for international courts, lying in the courts’ own hands, is upholding standards of public reason.18 Whereas many aspects of international courts’ legitimacy are found beyond the courts’ influence, it is asserted that the concept of public reason appears to be of special interest to these institutions, as this concept offers a way in which international courts themselves can address some of the legitimacy concerns raised against them.19 The concept of public reason, to be sure, is a complex and elusive one, often used in a range of different ways. Still, while one can find in political and legal philosophy various accounts of public reason, most if not all these accounts appear to share the following underlying normative idea: Collectively binding laws, rules, and decisions should be reasonably acceptable to all those over whom they purport to have authority20 as a necessary 14

15 16

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18 19 20

Appellate Body Report, Japan–Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/ AB/R, WT/DS11/AB/R (1 November 1996), p. 14. Von Bogdandy and Venzke, In Whose Name?, p. 3. See, e.g., von Bogdandy and Venzke, “An Investigation of International Courts”; Grossman, “Normative Legitimacy.” For a recent collection dedicated to the issue of the legitimacy of international courts, see N. Grossman et al. (eds.), Legitimacy and International Courts (Cambridge: Cambridge University Press, 2018). See on this issue the various references provided in fn. 3. Langvatn, “Should International Courts Use Public Reason?,” 355–356. Ibid., 357; J. Quong, “Public Reason,” in E. N. Zalta (ed.), The Stanford Encyclopaedia of Philosophy (2013), available at https://plato.stanford.edu/archives/sum2013/entries/pub lic-reason/.

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(though not sufficient) condition for legitimacy.21 It follows from this that in order for public laws and decisions to be reasonably acceptable to all their subjects, they must in some sense be publicly justifiable to the subjects.22 The point here, as Silje Langvatn elucidates, “is not that all subjects must publicly support all laws and decisions in order for them to be legitimate; this is clearly an unrealistic requirement in large and pluralistic forms of cooperation.”23 Rather, the idea is that “the reasoning and type of reasons that justify collectively binding laws, rules, and decisions . . . should be publicly known or publicly available to the subjects, and also presented such that the subjects can recognize them as appropriate and reasonably acceptable forms of political and legal reasoning.”24 Crucially, this general concept of public reason encapsulates a fundamental requirement for those who make and enforce public laws and decisions to ensure that the legal prescriptions they render are publicly justifiable to all the subjects they purport to bind. In other words, this idea “requires a practice whereby those who exercise public authority to make or shape the law must respect an ideal of public reason.”25 This means that they must be willing to offer a public justification for their legal acts that is directed toward the subjects or addressees of those acts, a justification that is accessible, and that the subjects can recognize as reasonable, or otherwise see as an appropriate public justification of a binding law or decision.26 Since the core idea within the public reason tradition is that collectively binding laws and decisions should be publicly justifiable, and that this entails a practice where those who exercise public power “should be able and willing to offer a justification in terms of public reasoning and public reasons,”27 it is understandable why this concept is conceived as particularly relevant for courts and judges, especially when the latter exercise their authority in relation to “issues that shape constitutional essentials and matters of basic justice.”28 Since supreme courts in domestic legal systems with constitutional review are routinely engaged in exercising political power over such matters, they are often said to be 21

22 23 24 25 26 27 28

D. Enoch, “Against Public Reason,” in D. Sobel, P. Vallentyne and S. Wall (eds.), Oxford Studies in Political Philosophy, vol. I (Oxford: Oxford University Press, 2015), p. 113. Langvatn, “Should International Courts Use Public Reason?,” 357 (emphasis original). Ibid. Ibid. (emphasis original). Ibid. Ibid. Ibid., 363. Ibid., 360.

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“the exemplar of public reason,” who are expected to meet the standard of public reason in a particularly stringent way.29 But as international courts have strengthened into actors wielding a considerable degree of public authority to enforce, interpret, and even make binding laws, and since they can no longer be seen as mere agents or trustees of their member states, public reason is now claimed to be an appropriate requirement for these judicial bodies as well. This is particularly so in the case of those international courts that hold compulsory jurisdiction and review powers, and whose rulings touch on subject matters that affect fundamental public goods or basic rights of citizens around the world.30 For such international courts, it is argued that adhering to an ideal of public reason – by, among others ways, ensuring that their decisions can be reasonably acceptable to their diverse subjects; using types of reasoning that are accessible in a pluralistic setting, such as the international one; making their decisions publicly available; and demonstrating the decisions’ compatibility with the basic aims of the treaty regimes in which the courts are embedded as well as the practice of international law more generally – offers a way in which such courts can make themselves more accountable to a broader range of affected publics, thus somewhat alleviating the legitimacy gap they have come to face in the wake of their empowerment.31 Interestingly, a look at the jurisprudence of some international courts reveals indeed an attempt on the part of the judges serving on those courts to mitigate their legitimacy deficit by appealing to such ideas of public reason.32 Admittedly, in carrying out their judicial function, these judges do not operate with any clear concept of “public reason” in mind. Yet, their rulings disclose a range of practices that closely resemble and resonate with the practices recommended in the public reason literature. In what follows, we explore these practices as manifested in one key forum of the evolving international judiciary: the mandatory DSS of the WTO. In so doing, we wish to shed clearer light on the different ways in which the idea of public reason can be said to apply to international 29

30 31 32

J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 216, 231–240. Langvatn, “Should International Courts Use Public Reason?,” 364. Ibid. See, e.g., Sadurski, “Supranational Public Reason”; Kumm, “Cosmopolitan Turn”; E. Petersmann, “Human Rights, Constitutionalism, and ‘Public Reason’ in InvestorState Arbitration,” in C. Binder, U. Kriebaum, and A. Reinisch (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: Oxford University Press, 2009).

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courts and their judicial reasoning, as well as to gain a better understanding of the promise and limitations embedded in the concept of public reason as a way for international courts to enhance their legitimacy given the unique properties and features of these courts.

3 The Case in Point: The WTO DSS The DSS opened its doors in 1995, with the formation of the WTO to supplant GATT as the structure overseeing the multilateral trading system and to regulate global trade in accordance with the numerous WTO agreements signed by the bulk of the world’s nations. Nested within this major WTO edifice (characterized by some as (quasi-) constitutional),33 the DSS has been assigned various goals in its constitutive instrument (the Dispute Settlement Understanding (DSU)), among them, providing security and predictability to the multilateral trading system, maintaining the negotiated balance of rights and obligations between WTO members, enforcing WTO trade commitments, and clarifying the WTO agreements.34 In order to fulfil these objectives, the WTO DSS, replacing the GATT’s more diplomacyoriented dispute settlement mechanism, has been established as a two-tier adjudicating system, composed of first-instance ad hoc panels and a permanent Appellate Body (AB). Both instances hold compulsory and exclusive jurisdiction over all disputes between members under the WTO agreements, and the “reports” they issue become binding quasiautomatically – that is, unless rejected by consensus of all WTO members.35 The legalized WTO DSS, currently under substantial pressure, has attracted a considerable amount of business over the years,36 evolving 33

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See, e.g., D. Cass, The Constitutionalization of the World Trade Organization: Legitimacy, Democracy and Community in the International Trading System (Oxford: Oxford University Press, 2005); J. H. Jackson, “The WTO ‘Constitution’ and Proposed Reform: Seven ‘Mantras’ Revisited,” Journal of International Economic Law, 4 (2001), 67; E. Petersmann, “The WTO Constitution and Human Rights,” Journal of International Economic Law, 3 (2000), 19. S. Shlomo Agon, “Is Compliance the Name of the Effectiveness Game? Goal-Shifting and the Dynamics of Judicial Effectiveness at the WTO,” World Trade Review, 15 (2016), 677–681. For a thorough presentation of the WTO DSS, see P. van den Bossche and W. Zdouc, The Law and Policy of the World Trade Organization: Law, Text, Cases and Materials, 3rd edn. (Cambridge: Cambridge University Press, 2013), pp. 156–311. Thus, at the time of this writing the DSS has become subject to substantial pressure resulting from the increasing number and complexity of cases filed with the system but especially from the US’s continued blocking of appointments to the AB, a development that may deprive this body of the personnel needed to adjudicate cases as of

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into a leading actor among international courts and tribunals.37 Since its establishment in 1995, almost 600 complaints have reached the DSS’s docket, covering a long list of subject matters under the WTO agreements. At their core, such disputes are interstate and bilateral in nature, fought between the complainant(s) and respondent, and are aimed at restoring the reciprocal balance of trade concessions originally struck among the parties and distorted by the respondent’s WTO-inconsistent measure. Yet the legal, economic, and social repercussions of such bilateral disputes often go beyond the immediate effects on the disputing states, implicating the interests of other WTO members or the broader WTO regime. Moreover, as WTO disputes increasingly transcend the organization’s core “trade” mandate, calling on the DSS to review traderestrictive measures in areas traditionally considered the exclusive domain of national regulators, such as public health and environmental protection, the authority exerted by the DSS often affects values and interests of concern to multiple stakeholders outside the multilateral trade setting, both within and beyond the nation-state. These widening spheres of influence that inhere in the DSS’s operation have generated a need for careful rethinking of the grounds for the system’s “moral legitimacy to accommodate its new realities.”38 As in the case of other international courts, it has become clear that the legitimacy of the DSS may no longer be predicated solely on state consent, or on limited technocratic grounds of economic efficiency among a closed group of member governments and trade policy insiders;39 rather, additional legitimacy sources are required in order to carry the justification of the DSS’s authority, such that would make the system more accountable to a wide range of audiences and actors that have become subject to the impact of its judicial power. The WTO DSS, it is argued, has not remained indifferent to this pressing legitimacy challenge. On the contrary, a close analysis of WTO jurisprudence, particularly in so-called trade-and cases that arouse the

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December 2019. See on this issue, M. Wagner, “The Impending Demise of the WTO Appellate Body: From Centrepiece to Historical Relic?” in C. Lo, J. Nakagawa, and T. Chen (eds.), The Appellate Body of the WTO and Its Reform (Singapore: Springer, 2020); R. Brewster, “The Trump Administration and the Future of the WTO,” Yale Journal of International Law, 44 (2018), 6. R. Stewart and M. S. Badin, “The World Trade Organization: Multiple Dimensions of Global Administrative Law,” International Journal of Constitutional Law, 9 (2011), 563. C. A. Thomas, “The Uses and Abuses of Legitimacy in International Law,” Oxford Journal of Legal Studies, 34 (2014), 749. Ibid.

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tension between the trade liberalization goal of the WTO and noneconomic public values, discloses a continuous effort by the DSS, under the guidance of the AB, to address this challenge through a range of substantive and procedural practices that closely correspond with the public reason approach to legitimacy. More specifically, this analysis shows that in these “hard” trade-and cases, where the DSS’s legitimacy appears to be at its weakest,40 the DSS has “gone public” by following several interrelated patterns of public reason, including addressing various audiences beyond the state parties to the dispute or the community of WTO member governments (among them, NGOs, domestic publics, and other international institutions); appealing to a wide range of public goods through interpretative methods that allow for consideration of social interests beyond that of trade liberalization; using forms of reasoning such as balancing and proportionality testing, which offer WTO adjudicators a structured and publicly recognizable way to justify their rulings among competing public interests, while at the same time scrutinizing the justifications provided by member governments for their trade-restrictive measures; and seeking to ensure that the decisionmaking processes followed by the DSS, like the procedures followed by national decision-makers, uphold general requirements of transparency and deliberation, and may therefore generate laws and decisions that are publicly justifiable.41 These public reason orientations as identified in WTO jurisprudence, it is argued, can be seen not merely as a strategic attempt by the DSS to build and entrench the support for its authority amid certain audiences, but as a genuine recognition of its need to reconstruct the normative grounds for its legitimacy in the face of the extended public authority it has come to exercise. By “going public” in these various substantive and procedural ways, the DSS has demonstrated its understanding that for its decisions to be legitimate, they must be a result of public reason, that is, of reasons and forms of reasoning that can be understood and accepted – or at least be seen as reasonably acceptable – by all the subjects affected. Furthermore, by following the various patterns of public reasons, as elaborated in Section III, the DSS has highlighted the importance of 40

41

For an elaborate discussion of the heightened legitimacy challenges facing the DSS in trade-and cases, see S. Shlomo Agon, “Clearing the Smoke: The Legitimation of Judicial Power at the WTO,” Journal of World Trade, 49 (2015), 548–552. For a discussion of these various public reason orientations in the context of international courts, see Langvatn, “Should International Courts Use Public Reason?”; Sadurski, “Supranational Public Reason”; and Petersmann, “New Philosophy.”

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public justification taking place both by WTO adjudicators as well as the states subject to their jurisdiction. Consequently, in its search for new grounds of legitimacy, the DSS has essentially portrayed WTO adjudicators both as (1) power-holders who are themselves required to abide by some ideal of public reason or public justification, and as (2) “custodians” of public reason that, much like domestic constitutional courts, are required to probe the quality of the justifications provided by other public officials and to assure that their decisions are undertaken after a decent deliberative process.42 In what follows, the chapter analyzes the various substance- and process-related dimensions of public reason captured in the legitimation endeavor carried out by the DSS in trade-and cases.

III Public Reason in WTO Adjudication: Exploring Substance and Process 1 Substance: Justification and Accountability to a Broader Public and Appeal to a Wider Set of Public Goods Whether or not one endorses public reason as a relevant concept for the legitimacy of international courts, judicial attempts to meet such a normative standard seem to be manifested in various forms in WTO case law. These attempts, as noted in Section II, may especially be observed in trade-and disputes, where WTO adjudicators are called upon to scrutinize national choices on matters such as public health, consumer safety, and environmental protection, matters going beyond the WTO’s core “trade” domain. As a result, much of the public reason–oriented legitimation efforts carried out by the DSS in trade-and cases have been taken in the context of the “general exceptions” provided in Article XX of the GATT and Article XIV of the GATS, which allow WTO members to depart from WTO rules in order to protect noneconomic public interests, subject to the conditions articulated in these provisions. These general exceptions clauses have therefore become a central venue in the WTO for deliberating broader public interests in a regime otherwise dominated by free trade values. Yet, as the analysis in this section will further show, with the development and diversification of the WTO case law, the DSS’s legitimation efforts to account for broader audiences and societal values have transcended the bounds 42

For a general discussion of courts, national and international, as “custodians” of public reason, see Chapter 1 in this volume.

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of the GATT/GATS general exceptions clauses, extending to additional terrains of the WTO agreements.

Public Reason–Based Legitimation within the Bounds of the General Exceptions Clauses As noted by former AB member, Georges Abi-Saab, the positioning of the WTO DSS in “an Organization whose pervasive atmosphere, lingering from the GATT era, is encapsulated in the mantra” of being “a member-driven Organization,” where “members themselves take all the final decisions,” has led the AB “to stick . . . to specificities of the matter put before it, and to follow a judicial policy of ‘strict constructionism’ in interpretation, with marked reluctance to indulge in interpretation on the basis of . . . the object and purpose of the agreements.”43 And yet, AbiSaab adds, “[T]his initial judicial policy has been slowly evolving towards more openness in the face of scathing criticisms of the WTO in general, and its Dispute Settlement System in particular, as a . . . vehicle of economic globalization, oblivious (and to the detriment) of other major values or concerns of the international community.”44 The seeds of this evolving judicial process toward greater openness and accountability to stakeholders beyond WTO member governments and public values other than trade were planted already in the early USGasoline dispute concerning a US trade-restrictive regulation aimed at reducing air pollution. Drawing on Article 3.2 of the DSU, which requires WTO adjudicators to clarify the WTO agreements “in accordance with customary rules of interpretation of public international law,” the AB declared that those agreements are “not to be read in clinical isolation from public international law.”45 In contrast to the inward-looking and trade-focused approach of the old GATT and its tradition of seclusion from public international law, the AB thus seized the opportunity provided by its very first case to assert that the WTO regime is firmly embedded in general international law and to confirm the “openness” of that regime toward other parts of the international legal system,46

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G. Abi-Saab, “The Normalization of International Adjudication: Convergence and Divergencies,” NYU Journal of International Law & Politics, 43 (2010), 13–14. Ibid., 14. Appellate Body Report, United States–Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 May 1996), p. 17. B. Simma and D. Pulkowski, “Of Planets and the Universe: Self-Contained Regimes in International Law,” European Journal of International Law, 17 (2006), 492, 510.

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thereby laying the grounds for possible consideration of interests, publics, and institutions outside the WTO. It was in US-Shrimp,47 however, that the AB moved to draw on this general pronouncement to introduce a legal framework more accountable to stakeholders and public concerns external to the trading system, when it was sked to address the environmental exception in GATT Article XX(g) invoked by the US in defense of its import ban on shrimp harvested with technologies that may adversely affect endangered species of sea turtles. Departing from the textual interpretation generally associated with its jurisprudence, the AB chose on this occasion to pursue a teleological “evolutionary” interpretation of the term “exhaustible natural resources” in Article XX(g), in light of “modern” international environmental conventions and the goal of sustainable development enshrined in the preamble of the WTO Agreement.48 Following this interpretative approach, Article XX(g) was consequently read by the AB in a broad, environment-friendly manner as covering not only finite natural resources (e.g., minerals), as suggested by the complainants based on the original intent and drafting history of the GATT, but also living natural resources, such as sea turtles, which the contested US regulation sought to protect.49 This notable turn of the AB to teleology constituted a critical element in the US-Shrimp ruling, signifying “a nod to constituencies and values traditionally understood as being external to the WTO and its purpose.”50 As opposed to the originalist interpretation that would have privileged “the supposed intentions and expectations of a fairly narrow ‘interpretive community’ . . . of . . . treaty negotiators,”51 the flexible, teleological reasoning employed by the AB, based inter alia on evolving international law, allowed it to consider the expectations of wider constituencies in the international community as they have developed since the drafting of GATT in 1947. Moreover, the teleologicalcontextual interpretation in light of the preamble of the WTO Agreement enabled the AB to appeal to the plurality of aims and values it believed to 47

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Appellate Body Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (6 November 1998). Ibid., paras. 129–134. Ibid., para. 131. R. Howse, “The World Trade Organization 20 Years On: Global Governance by Judiciary,” European Journal of International Law, 27 (2016), 38. R. Howse, “Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence,” in J. H. H. Weiler (ed.), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade? (Oxford: Oxford University Press, 2000), p. 57.

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be inherent in the legal regime defined by the WTO treaty, and thereby to foster “a debate among alternative normative preferences in the interpretation” of the treaty text, whereas a simple appeal to textualism would have hidden those alternatives and precluded a debate.52 Much in the spirit of the public reason approach to legitimacy, the recourse to teleology thus made it possible for WTO adjudicators to account for broader audiences beyond member states and trade insiders, and to do so while using reasons and forms of reasoning that the diverse addressees could recognize as appropriate and as compatible with a coherent and reasonable interpretation of the public values at stake. The reference to non-WTO legal sources (i.e., to international environmental law instruments) in conjunction with the teleological interpretation of Article XX(g) formed, in turn, another crucial aspect of the public reason– based legitimation followed by the AB in US-Shrimp. The various non-WTO legal sources seem to have played an important role in the judicial exercise in US-Shrimp, as suggested by an AB member sitting on the bench: Other public international law outside the WTO treaty became a major factor in judging the appeal. Highly relevant to assessing the availability of . . . [Article XX(g)] defence in this case was an international agreement called the Convention on the Conservation of Migratory Species of Wild Animals. Relevant, too, to our examination . . . were certain aspects of several other international conventions . . . : the 1982 UN Convention on the Law of the Sea, the Convention on Biological Diversity and the Convention on the Conservation of Migratory species of Wild Animals.53

From a public reason perspective, the consideration of these various nonWTO legal instruments is of great significance. In particular, the reference to these instruments demonstrates that WTO adjudicators, when engaged in assessing competing trade and nontrade public interests, strive to do so in a way that is not only consistent with the underlying objectives of the WTO legal order that the DSS serves but also with the purposes of the practice of international law more generally.54 As several commentators have observed, such interpretation of the WTO treaty, 52

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M. P. Maduro, “Courts and Pluralism: Essay on a Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism,” in J. L. Dunoff and J. P. Trachtman (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009), p. 369. J. Bacchus, “Not in Clinical Isolation,” in G. Marceau (ed.), A History of Law and Lawyers in the GATT/WTO: The Development of the Rule of Law in the Multilateral Trading System (Cambridge: Cambridge University Press, 2015), pp. 513–514. Cf. Langvatn, “Should International Courts Use Public Reason?,” 366.

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which is embedded within the broader international legal discourse and reflects the consensus and norms emerging in other international legal regimes, may result in more coherent and holistic reasoning and thus more legitimate judicial decision-making.55 With its turn in US-Shrimp to the chapeau of Article XX – the second stage in the analysis of the general exceptions clause – the AB took a similar stance toward values and stakeholders traditionally considered to be external to the WTO. Following the seeds planted in EC-Hormones – where it had been stated that “merely characterizing a treaty provision as an ‘exception’ does not by itself justify a ‘stricter’ or ‘narrower’ interpretation of that provision”56 – in its analysis of the chapeau, the AB framed the relationship between the WTO’s trade rules and the nontrade policy exceptions of Article XX in terms of “balance.” Thus, resorting once again to contextual-teleological interpretation, the AB determined that the chapeau of Article XX “embodies the recognition on the part of WTO Members of the need to maintain a balance . . . between the right of a Member to invoke the exceptions of Article XX . . . and the substantive rights of the other Members under the GATT [Agreement] . . . .”57 According to the AB, then, the chapeau of Article XX represents a search for the appropriate balance or “the appropriate line of equilibrium between, on the one hand, the right of members to adopt . . . trade-restrictive . . . measures that pursue certain legitimate societal values . . . and, on the other hand, the right of other Members to trade.”58 And so, “[a]lthough the GATT has no specific language authorizing a balancing test,”59 and despite “the accepted principle of interpretation that exceptions are to be interpreted narrowly,” the AB advocated achieving a balance between the GATT’s general rules and exceptions, and thus between trade liberalization and other public interests.60 Seen through the public reason lens, the merit of this interpretative move is twofold. First, as Ernst-Ulrich Petersmann notes, it provides for the “necessary ‘balancing’” of WTO market access disciplines and members’ sovereign 55

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Howse, “Adjudicative Legitimacy,” 58; A. von Staden, “Democratic Legitimacy of Judicial Review Beyond the State: Normative Subsidiarity and Judicial Standards of Review,” International Journal of Constitutional Law, 10 (2012), 1032. Appellate Body Report, European Communities–Measures Concerning Meat and Meat Products, WT/DS26/AB/R, WT/DS48/AB/R (13 February 1998), para. 104. US-Shrimp, paras. 152–156, 159. Van den Bossche and Zdouc, Law and Policy, p. 574 (emphasis original). WTO, World Trade Report: Exploring the Links between Trade, Standards and the WTO (WTO, 2005), pp. 135–141. Van den Bossche and Zdouc, Law and Policy, p. 547.

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rights to protect noneconomic public goods,61 and thus fosters judicial rulings that might be “justifiable by an inclusive ‘reasonable equilibrium’ rather than merely by ‘instrumental rationality’ of diplomats and economists.”62 Stated in more general terms, the balancing analysis introduced by the AB offers the DSS a method for discussing contentious political issues and for adjudicating among competing social interests in a comprehensive way that is legally accepted and recognizable and, in that sense, more open to public contestation and correction. Second, and no less important, the balancing analysis introduced to the chapeau of Article XX also presents WTO adjudicators with a framework for reviewing the quality of the reasons provided by national regulators for their WTO-inconsistent laws and regulations; that is, it offers a way for the adjudicators to scrutinize the public justifiability of domestic trade-restrictive measures and to ensure that those measures do not amount to abuse of the policy exceptions enshrined in Article XX.63 Nonetheless, being aware of the sensitivity inherent to this kind of balancing test, and in order to avoid excessive intrusion on the regulatory autonomy of member states, when setting out the line of equilibrium under the chapeau in specific cases, the AB chose not to engage in a substantive review of the regulatory priorities and balance struck between the competing trade and nontrade values at the domestic level. Instead, in US-Shrimp and other cases, as elaborated later in the chapter, the AB limited its judicial review to assessing whether a concrete traderestrictive measure, as applied, is arbitrary, discriminatory, or unreasonable.64 In other words, the AB shifted the focus of its scrutiny “from second-guessing substantive domestic policy choices to an emphasis on the . . . arbitrariness of domestic regulations, on process norms and . . . on the examination of discriminatory elements in the detailed legal, regulatory, and administrative provisions that operationalize the substantive policy choices.”65 By so limiting its (otherwise strict) standard of review under the chapeau of Article XX to the design and operational features of domestic trade-restrictive regulations, the AB 61 62

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Petersmann, “New Philosophy,” 66. Ibid. On balancing as a means for allowing a more inclusive public reason in the context of WTO dispute settlement see also Petersmann, “Human Rights, Constitutionalism, and ‘Public Reason,’” 891. On the purpose of the chapeau as preventing the “abuse of the exceptions” of Article XX see US-Shrimp, para. 151. M. Andenas and S. Zleptnig, “Proportionality: WTO Law in Comparative Perspective,” Texas International Law Journal, 43 (2007), 411. Howse, “20 Years On,” 53.

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sent states and their respective publics interested in pursuing noneconomic policy objectives a “positive” signal of policy space, “but with a warning not to abuse this policy space for protectionist ends.”66 This is the place to note that the landmark US-Shrimp case constituted only the starting point in the DSS’s account of legitimation through public reason. In the trade-and cases that followed, the AB embraced a similar expansive approach to the interpretation of the various public policy exceptions stipulated in GATT Article XX and GATS Article XIV, thereby further demonstrating its accountability to regulating members and stakeholders outside the trade community in their pursuit of nontrade policy goals. In this framework, and in line with the broad reading of the environmental exception in US-Shrimp, the AB found a wide range of trade-restrictive measures aimed at protecting values such as public health, consumer safety, and animal welfare as falling within the terms of the exceptions listed in GATT Article XX.67 This broad interpretative approach, appealing to nontrade public interests and audiences outside the multilateral trade regime, was also observed in AB jurisprudence on the “necessity” test enshrined in several exceptions in GATT Article XX and GATS Article XIV, where the AB moved further along the balancing path introduced in US-Shrimp. Thus, instead of the strict “least trade-restrictive means” requirement of the old GATT, under which a trade-restrictive measure had to be indispensable to be considered “necessary,” in cases such as Korea-Beef, Brazil-Tyres, and EC-Seal Products, the AB construed the necessity test as entailing a “weighing-and-balancing” process.68 According to the AB, this process begins with the assessment of a number of factors, including the importance of the nontrade public policy objectives protected by the challenged measure, the contribution of the measure to the realization of those 66 67

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Ibid. S. Shlomo Agon and E. Benvenisti, “The Law of Strangers: The Form and Substance of Other-Regarding International Adjudication,” University of Toronto Law Journal, 68 (2018), 636. Appellate Body Report, Korea–Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (10 January 2001), paras. 164, 166; Appellate Body Report, Brazil–Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (17 December 2007), paras. 178, 182, 210; Appellate Body Report, European Communities–Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (18 June 2014), paras. 5.169, 5.214. A similar interpretation has been developed with respect to the necessity test under GATS Article XIV. See Appellate Body Report, United States–Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R (20 April 2005), paras. 304–308.

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objectives, and the restrictive effect of the measure on international commerce. Thereafter, a comparison of the challenged measure and possible alternatives is to be undertaken.69 This weighing-andbalancing test, as the AB stressed in its jurisprudence, “is a holistic operation that involves putting all the variables of the equation together and evaluating them in relation to each other after having examined them individually.”70 It has been argued that the introduction of this weighing-and-balancing analysis – a proportionality-type test (even if not explicitly titled as such)71 – embodies another step toward legitimation by which the AB has tried “to incorporate into WTO law jurisprudential techniques” to respond to the DSS’s legitimacy deficit.72 A public reason approach to legitimacy may elucidate this argument, and indeed some of the most prominent defenders of the idea that international courts like the DSS should enhance their legitimacy through the use of public reason have pointed to proportionality testing as a way for these courts to engage in public reason.73 The proportionality test, as implied above, is a multistage analysis designed to assess whether a disputed measure infringing on a legal entitlement or commitment is justified in a particular context. This test helps judges in discerning the appropriate balance between the necessity and the advantages and disadvantages of a measure involving the restriction of a legally protected right.74 The test first assesses whether the disputed measure serves a legitimate policy aim. It then examines whether the measure is suitable and necessary to achieve that aim and whether less restrictive alternatives are available. Lastly, it assesses whether the measure is proportionate to the right infringement.75 Proportionality testing, claimed by some to be “a foundational element” of today’s “global constitutionalism,”76 thus offers a structure of judicial review and judicial reasoning whereby courts can rationalize their decision-making by following a standard sequence of steps and 69 70 71

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EC-Seal Products, paras. 5.169, 5.214. Brazil-Tyres, para. 182. Andenas and Zleptnig, “Proportionality,” 405, 422; A. Stone Sweet and J. Mathews, “Proportionality Balancing and Global Constitutionalism,” Columbia Journal of Transnational Law, 47 (2008), 154, 158. Andrew Lang, World Trade Law after Neoliberalism: Reimagining the Global Economic Order (Oxford: Oxford University Press, 2011), pp. 321–323. Kumm, “The Idea of Socratic Contestation”; Sadurski, “Supranational Public Reason.” See Chapter 1 in this volume. Langvatn, “Should International Courts Use Public Reason?,” 363. Stone Sweet and Mathews, “Proportionality Balancing,” 160.

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thereby legitimatize their rulings,77 especially when dealing with tensions between countervailing values and interests.78 In the case of the WTO DSS, therefore, proportionality analysis provides a standardized framework for legal discourse about trade-and problems,79 a framework that presents the adjudicators with a transparent and coherent procedure of argumentation, together with “a public basis for critique and contestability of the manner in which the[y] . . . [have] handled the . . . presence of competing values.”80 This the proportionality analysis does by making the conflicting values at issue, the weight attributed to them, and the trade-off struck between them publicly known and understandable to the diverse audiences affected. However, the proportionality test incorporated into the various policy exceptions in GATT Article XX, perhaps more than the general balancing concept introduced to the chapeau, offers WTO adjudicators a structure for ensuring not only that their own legal reasoning in trade-and rulings is publicly justifiable.81 This test also entrusts the adjudicators with an “analytical framework” for assessing the internal coherence and consistency of the justifications provided by other public officials – national legislators and administrators – for the trade-restrictive measures that they adopt and that infringe on the rights of others under the WTO agreements.82 By establishing a “checklist” for “the individually necessary and collectively sufficient conditions that need to be fulfilled” in order for a right-infringing measure to be justifiable,83 the proportionality test endows the WTO judiciary with a way to challenge domestic decision-makers to provide reasons for their contested acts and measures, and it helps the DSS sort out pathologies and biases in the domestic political process “by detecting insufficient justifications and illegitimate reasons for acts and measures.”84 77

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81 82

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T. Kleinlein, “Judicial Lawmaking by Judicial Restraint? The Potential of Balancing in International Economic Law,” German Law Journal, 12 (2011), 1143, 1147; Sadurski, “Supranational Public Reason,” 411–412. Stone Sweet and Mathews, “Proportionality Balancing,” 75; Kleinlein, “Judicial Lawmaking,” 1148, 1173. Kleinlein, “Judicial Lawmaking,” 1173. Ibid., 1168. See also Andenas and Zleptnig, “Proportionality,” 386; Sadurski, “Supranational Public Reason,” 411. Andenas and Zleptnig, “Proportionality,” 384, 386. C.f. Kumm, “The Idea of Socratic Contestation,” 168–169; M. Kumm, “Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review,” European Journal of Legal Studies, 1 (2007), 159, 162. Kumm, “Cosmopolitan Turn,” p. 304. Langvatn, “Should International Courts Use Public Reason?,” 370.

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Furthermore, where such pathologies and biases are found, proportionality analysis “has an edge over a categorical approach to rights adjudication, in that it moderates” the sense of loss among disputants.85 As Alec Stone Sweet and Jud Mathews explain, proportionality analysis “provides ample occasion for the balancing court to express its respect, even reverence, for the relative positions of each of the parties.”86 It enables the court to state, in effect, “that each side has some significant . . . right on its side . . . but that the court must nevertheless make a decision.”87 Especially in the supranational context, as Wojciech Sadurski aptly stresses, “this factor of moderating the losses, where ‘losers’ may be the states whose laws have been found in breach of the Convention, is an important legitimacy-enhancing asset.”88 Taken together, the various jurisprudential moves examined above, all observed under the umbrella of the GATT/GATS general exceptions clause, reveal the appeal of WTO adjudicators to public reason as a pivotal legitimation device in trade-and conflicts. More specifically, these judicial moves uncover an evolving approach of the WTO judiciary toward greater accountability to diverse audiences from within and outside the multilateral trading system, an approach that at its core reflects a fundamental balance between the interest of free trade underlying the WTO and the inherent right of states and their domestic publics to regulate in the pursuit of noncommercial social values.

Public Reason–Based Legitimation outside the Bounds of the General Exceptions Clauses Significantly, the same balance between trade and other societal values identified in the context of the GATT/GATS general exceptions clause, accompanied by similar patterns of public reason and public reasoning, was exhibited by the AB when turning to WTO agreements lacking a comparable derogation clause, such as the Technical Barriers to Trade Agreement (TBT Agreement) or the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). Illustrative in this regard are the SPS disputes of EC-Hormones and US-Continued Suspension. In these consecutive cases concerning the EU import ban on hormone-fed beef, the AB pointed to the fundamental need to maintain “the delicate and carefully negotiated balance in the SPS Agreement between the shared, 85 86 87 88

Sadurski, “Supranational Public Reason,” 412. Stone Sweet and Mathews, “Proportionality Balancing,” 89. Ibid. Sadurski, “Supranational Public Reason,” 412.

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but sometimes competing, interests of promoting international trade and of protecting the life and health of human beings.”89 On this basis, in its interpretation of specific SPS provisions, the AB tried to devise a more accommodating framework for the discussion of the competing trade and health values at stake, one that would account for the interests of constituencies in and outside the WTO.90 In later jurisprudence under the TBT Agreement, the AB went even further in sustaining the balance between societal values internal and external to the WTO regime. Leading in this respect is the case of USClove Cigarettes regarding the US anti-tobacco legislation prohibiting flavored cigarettes other than tobacco or menthol.91 In this instance, the AB commenced its legal analysis with a teleological reading of the preamble of the TBT Agreement, whereby it found that the object and purpose of this agreement is “to strike a balance between . . . the objective of trade liberalization and . . . Members’ right to regulate” for nontrade values.92 This balance, the AB stressed, “is not, in principle, different from the balance set out in the GATT 1994, where obligations such as national treatment in Article III are qualified by the general exceptions provision of Article XX.”93 The choice of the AB – known for its typically strict textual approach to treaty interpretation – to begin the legal analysis in USClove Cigarettes with a teleological reading of the TBT Agreement was not coincidental. By articulating the goals underlying the agreement, the AB effectively declared the normative preferences it attributed to the rules enshrined in this agreement and contextualized its later reasoning within the broader value system of the legal order in which it operates.94 In other words, by fleshing out the diverse goals underlying the TBT Agreement – that is, by juxtaposing the goal of 89

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Appellate Body Report, European Communities–Measures Concerning Meat and Meat Products, WT/DS26/AB/R, WT/DS48/AB/R (13 February 1998), para. 177. Shlomo Agon, “Clearing the Smoke,” 559–560. Appellate Body Report, United States–Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R (24 April 2012). Ibid., paras. 94–95, 174. Following a similar vein, in its later ruling of US-Tuna II concerning the US labelling scheme certifying tuna caught by using dolphin-safe methods, the AB incorporated a weighing-and-balancing analysis into the necessity test stipulated in Article 2.2 of the TBT Agreement. See United States–Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R (13 June 2012), paras. 318–323, fn. 643. US-Clove Cigarettes, para. 96. C.f. Maduro, “Courts and Pluralism,” pp. 368–369.

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trade liberalization with members’ right to regulate in pursuit of noneconomic public policy objectives – the AB placed the trade liberalization aim of the WTO regime in the broader context of competing social values and set the conditions necessary for a more inclusive legal discourse and deliberation. Much along the lines of the public reason approach, then, in opting for interpretation that exposes the different aims underpinning the WTO treaty and that formulates the relationship between those aims in terms of “balance,” the AB established the basis for a ruling grounded in reasons that are accessible to the diverse subjects affected and that can be viewed by those subjects as appropriate reasons in such a pluralistic setting of the kind the DSS operates in.95 No less important, however, is the fact that the general balancing concept introduced at the outset of the US-Clove Cigarettes ruling laid the groundwork for the AB to then address the lack of an Article XXtype exceptions clause in the TBT Agreement that would allow for TBT violations aimed at promoting nontrade policy objectives. Clearly, such legal rigidity in the treaty text might result in judicial rulings whose legitimacy is flawed, that is, rulings that the broad audience they purport to bind cannot reasonably accept, especially when fundamental public goods such as public health are concerned. Aware of this problematic legal reality, the AB moved further in its legal endeavor in USClove Cigarettes to infuse specific content into the balance identified in the TBT Agreement by introducing a sort of exception equivalent to GATT Article XX to the national treatment rule enshrined in TBT Article 2.1, reading this provision to include the new concept of “legitimate regulatory distinction.”96 Following this interpretative move, a WTO member’s technical regulation that accords less favorable treatment to like imported products (and thus violates the national treatment rule) could nevertheless be found TBT-consistent, if such

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Petersmann has argued along similar lines: “Just as European economic courts, similar to national courts in constitutional democracies, operate as parts of a ‘four-stage process’ . . . of constitutional, legislative, administrative, and judicial rule-clarification reflecting different perspectives of ‘public reason’ . . . WTO dispute settlement bodies will have to further clarify the ‘basic principles and objectives underlying this multilateral trading system’ . . . in order to justify vis-à-vis domestic citizens their often divergent interpretations and progressive clarification and development of WTO rules.” E. Petersmann, “International Economic Law, ‘Public Reason’, and Multilevel Governance of Independent Public Goods,” Journal of International Economic Law, 14 (2011), 73. Shlomo Agon, “Clearing the Smoke,” 570–574.

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detrimental impact “stems exclusively from legitimate regulatory distinctions.”97 Notably, by pursuing this interpretative route, the AB effectively offset the original rigidness of the TBT Agreement in the absence of an explicit exceptions clause and left domestic regulations that genuinely serve nonprotectionist public policy objectives outside the bounds of TBT Article 2.1. While some may view this interpretative move as an illegitimate act of gap-filling, we suggest reading it as part of a sincere attempt to build a legitimation mechanism into the text of the TBT Agreement, one that is designed not only to ensure the regulatory space of members and their domestic publics, but also more generally to accommodate the tensions between trade and nontrade interests in a more publicly justifiable way. Finally, in the more recent Canada–Renewable Energy dispute, a somewhat similar interpretative move was taken by the AB in an effort to account for the international community’s pressing concern of mitigating climate change.98 At issue here was a Canadian measure aimed at incentivizing the production of renewable energy by providing a financial contribution to producers of electricity from wind and solar generators. These payments – a known instrument of government support in renewable energy markets given the higher cost of generating such energy – were claimed to be a prohibited subsidy. Yet if indeed such payments were to be considered a “subsidy,” no public policy defense could have absolved their infringement of the subsidies disciplines, since the Agreement on Subsidies and Countervailing Measures (SCM Agreement), like the TBT Agreement, does not provide for a general exceptions clause. In this state of affairs, where “[e]ven the ‘cleanest’ of green measures would find no safe harbor in facing the SCM Agreement as currently formulated,”99 the AB, looking beyond the WTO trade framework, sought once again to relax the rigidity of the WTO treaty in a manner that may allow regulating governments and, in a sense, the broader international community more latitude in the pursuit of clean energy 97 98

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US-Clove Cigarettes, para. 175. Appellate Body Report, Canada–Certain Measures Affecting the Renewable Energy Generation Sector; Canada–Measures Relating to the Feed-In Tariff Program, WT/ DS412/AB/R, WT/DS426/AB/R (24 May 2013). A. Cosbey and P. C. Mavroidis, “A Turquoise Mess: Green Subsidies, Blue Industrial Policy and Renewable Energy: The Case for Redrafting the Subsidies Agreement of the WTO,” Journal of International Economic Law, 17 (2014), 28.

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policies. For this purpose, the AB proceeded to qualify the notion of “benefit,” one of the requirements in the WTO definition of subsidy. In this respect, the AB observed that while government intervention in support of certain players in existing markets may amount to a subsidy, a situation where a government (simply) creates a new market that would not otherwise exist (as is often the case in markets of renewables) is not “in and of itself” a subsidy.100 Through this interpretation, as Luca Rubini has noted, the AB “managed to take certain forms of subsidization in the clean energy sector outside of subsidy control.”101 While some commentators have criticized this interpretative approach,102 it illustrates the AB’s attempt to bridge the gap of the missing exceptions clause in the SCM Agreement, introducing legitimate public policy considerations into the determination of “benefit”103 that may shelter certain measures of governmental support for environmental aims from the WTO subsidies disciplines.104 In a world of growing public concerns about the environment, as Petersmann notes, a judicial move of the kind displayed by the AB in Canada–Renewable Energy, taking into account a global public good such as the protection of the environment and mitigation of climate change, represents a notable shift toward public reason105 and public justifiability vis-à-vis a broader audience.

2 Process: Deliberative Public Reason in WTO Adjudication The DSS’s appeal to public reason in trade-and cases has manifested itself not only on the substantive front, in the plurality of audiences and public values taken into account. Rather, this substantive dimension of public reason has been intertwined with a procedural one, along which the DSS has attempted to guarantee the structural conditions for open and inclusive deliberations, that is, the conditions necessary for a deliberative process that may sustain a practice of public reason in the DSS as well as in the 100 101

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Canada–Renewable Energy, para. 188. L. Rubini, “‘The Wide and the Narrow Gate’: Benchmarking in the SCM Agreement After the Canada–Renewable Energy/FIT Ruling,” World Trade Review, 14 (2015), 212. Ibid.; Cosbey and Mavroidis, “A Turquoise Mess.” S. Charnovitz and C. Fischer, “Canada–Renewable Energy: Implications for WTO Law on Green and Not-So-Green Subsidies,” World Trade Review, 14 (2015), 205. In its formal statements, however, the AB claimed, of course, that it may not introduce legitimate policy considerations into the determination of benefit. See Canada– Renewable Energy, para. 5.185. Cosbey and Mavroidis, “A Turquoise Mess,” 28. Petersmann, “Human Rights, Constitutionalism, and ‘Public Reason,’” 891.

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states subject to its jurisdiction. More specifically, under this deliberative dimension of public reason, the DSS has striven to guarantee that WTO adjudicators themselves, and the state authorities subject to WTO judicial scrutiny, channel their exercise of public power through appropriate decision-making processes that may ensure that their resulting laws and decisions are such that can be publicly justifiable or reasonably acceptable to all those affected by them. Indeed, some versions of the public reason approach see the “actual process” of deliberation, public justification, and reason-giving as necessary and integral to the legitimacy of the laws and decisions emerging therefrom.106 In what follows, we explore these two procedural aspects that seem to be embedded in the DSS’s public reason account – the one relating to the DSS as an international court wielding increased public authority whose decision-making processes should be such that would enable it to justify its rulings vis-à-vis a broad audience, and the other pertaining to the DSS as a review court acting as “a custodian of public deliberation”107 that probes the quality of the decision-making procedures followed by the states subject to its judicial scrutiny.

Promoting Deliberative Judicial Procedures within the WTO DSS Judicial procedures determine who makes use of the court, who frames the arguments, and which voices are to be heard about how the substantive law is to be interpreted, or how the balance between competing public interests is to be struck.108 As von Bogdandy and Venzke note, “The procedural law of international judicial institutions is largely a product of their own making . . . . International courts rule over procedures.”109 This, as Jean-Marc Sorel further highlights, is an important source of independence for an international court “and one of the ways in which such a creature may escape its makers.”110 106

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S. A. Langvatn, “Taking Public Reason to Court: A Guide to Public Reason Approaches for Legal Scholars,” 17 (draft article, on file with author). This term is borrowed from Mendes who refers to constitutional courts as “custodians” of public deliberation. See C. H. Mendes, Constitutional Courts and Deliberative Democracy (Oxford: Oxford University Press, 2014), p. 85. A. Nollkaemper, “International Adjudication of Global Public Goods: The Intersection of Substance and Procedure,” European Journal of International Law, 23 (2012), 781–782. Von Bogdandy and Venzke, “An Investigation of International Courts,” 25. J. Sorel, “International Courts and Tribunals, Procedure,” in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2007), para. 1.

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WTO adjudicators, as we have shown in detail elsewhere, have on various occasions drawn on this source of independence in order to institute more open and inclusive judicial procedures that would allow them to acquaint themselves with voices, facts, and arguments beyond those raised by the disputants, and thus to assess the aggregate benefit of any potential legal outcome, reduce the probability of rendering decisions that disregard the interests of nonlitigants, and possibly account for broader public interests.111 As one may expect, some of the prominent strides in this direction, aimed at promoting better informed and publicly accessible decisions, have been taken in trade-and disputes. Thus, it was in the famous US-Shrimp case where the AB, in a precedential move, recognized the admissibility of amicus curiae submissions in WTO proceedings. Following the old GATT practice, where panels refused to address information provided by nongovernmental sources, the first-instance panel in US-Shrimp rejected amicus curiae briefs submitted by environmental NGOs in support of the US import ban. On appeal, the AB overturned the panel’s decision on this matter.112 In its ruling, the AB reasoned, inter alia, that the power to accept unsolicited submissions is found in the “ample and extensive authority” that the DSU grants a panel “to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms . . . applicable to such facts.”113 Despite the criticism launched at the ruling by some WTO members, which saw no role for actors other than member states in the DSS, in the subsequent EC-Asbestos case concerning a health-related import prohibition imposed by France on products containing asbestos, the AB went further to adopt an Additional Procedure to deal with amicus curiae briefs, which were expected to be submitted in great number in that case.114 These decisions allowing amicus curiae interventions in WTO proceedings expose the AB’s changing conception of who counts as participants in the WTO legal regime, together with its understanding that for WTO rulings to be reasonably acceptable to all their subjects, those rulings must be the result of a more open and deliberative judicial process. In this respect, the acceptance of amicus curiae briefs may contribute to greater involvement in WTO proceedings of nonstate 111 112 113 114

Shlomo Agon and Benvenisti, “The Law of Strangers,” 643–649. US-Shrimp, paras. 104–110. Ibid., para. 106. Appellate Body Report, European Communities–Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (5 April 2001).

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actors and thus promote a deliberative dialogue among broader circles of (potentially) affected stakeholders. Moreover, amicus curiae briefs may provide WTO adjudicators with access to facts and arguments other than those submitted by the parties. In so doing, they may broaden the adjudicators’ perspective beyond the parties’ limited interests, particularly when fundamental public goods (e.g., environmental protection) are concerned, and may expand the normative basis of the justifications provided for in the ruling. Finally, by widening participation and promoting openness to diverse points of view in the judicial process, amicus curiae briefs may give stakeholders a greater sense of ownership in the judicial outcomes produced, rendering such outcomes more reasonably acceptable even among those on the losing side of the debate.115 The procedural development concerning amicus curiae submissions thus closely resonates with deliberative public reason accounts. Most notably, this development represents the basic idea that those affected by a legal decision should have an opportunity to participate (at least indirectly) in its making, and that such a decision “is legitimate to the extent that it is a result of public reason, that is, of reasons that all involved in the process of deliberation can accept.”116 It should be noted, however, that despite the legitimation potential of the AB’s amicus rulings, and perhaps in response to the criticism leveled at these rulings by some WTO members, which reached its apex in ECAsbestos,117 in later cases the AB has been rather cautious in its approach to amicus curiae submissions.118 On the one hand, the AB has never repudiated its power to accept amicus briefs, and its continuing acceptance of such briefs attests to its support of this practice.119 Also, while the AB has never formally referenced amicus briefs in its rulings, commentators indicate that “the AB reads them and thus is subject to the persuasive force they might have.”120 On the other hand, given the 115

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C.f. D. Esty, “Good Governance at the Supranational Scale: Globalizing Administrative Law,” Yale Law Journal, 115 (2006), 1520. R. Higgott and E. Erman, “Deliberative Global Governance and the Question of Legitimacy: What Can We Learn from the WTO?,” Review of International Studies, 36 (2010), 454–455. See WTO, General Council Minutes (2000), WT/GC/M/60. M. Perez-Esteve, “WTO Rules and Practices for Transparency and Engagement with Civil Society Organizations,” WTO Staff Working Paper ERSD-2012–14 (2012), p. 23, available at www.wto.org/english/res_e/reser_e/ersd201214_e.pdf. G. Shaffer, M. Elsig and S. Puig, “The Extensive (but Fragile) Authority of the WTO Appellate Body,” Law & Contemporary Problems, 79 (2016), 255. Ibid.

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opacity that characterizes the AB’s treatment of amicus submissions, and frequent statements that it did not find it “necessary” to rely on them when rendering its judgments, it is hard to get a clear view as to how amicus briefs actually influence the outcomes of WTO disputes.121 The procedural advancement regarding amicus curiae briefs has not been the only judicial step taken toward greater publicness and deliberation in WTO proceedings. Thus, in a move aimed at further bolstering the transparency and accessibility of the WTO judicial process, the AB found in US-Continued Suspension a basis for opening up the hearings to the public upon the parties’ request,122 thereby bringing to an end “the consistent practice of sixty years of GATT/WTO dispute settlement hearings behind closed doors.”123 While DSU Article 17.10 states that the appellate proceedings “shall be confidential,” the AB circumvented this confidentiality requirement by observing that this requirement is “relative” and “has its limits,” and that it is within the AB’s authority (compétence de la compétence) to lift confidentially at the request of the participants.124 The open hearings procedure, seen since in various WTO disputes (e.g., in the Canada–Renewable Energy litigation) relaxed the confidential, interstate structure of the DSS, while exposing the adjudicators’ understanding of the need to account for various others beyond the specific case and the WTO domain. From a public reason approach to legitimacy, this procedural advance is of crucial importance. The open hearings procedure may enable affected subjects from outside the WTO (e.g., NGOs, individuals, and other international institutions) to gain a foothold in WTO proceedings, acquire knowledge they were previously deprived of, and follow WTO disputes more closely than they otherwise could.125 Furthermore, the process of making WTO judicial proceedings 121

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G. Marceau and M. Hurley, “Transparency and Public Participation: A Report Card on WTO Transparency Mechanisms,” Trade Law & Development, 4 (2012), 33–34. For a recent study addressing the question of the acceptance and consideration of amicus submissions by WTO panels and the AB, see T. Squatrito, “Amicus Curiae Briefs in the WTO DSM: Good or Bad News for Non-State Actor Involvement?,” World Trade Review, 17 (2018), 65. Appellate Body Report, United States–Continued Suspension of Obligations in the EC– Hormones Dispute, WT/DS320/AB/R (14 November 2008), Annex IV, para. 11. L. Ehring, “Public Access to Dispute Settlement Hearings in the World Trade Organization,” Journal of International Economic Law, 11 (2008), 1021–1022. US-Continued Suspension, Annex IV, paras. 5–7. Shaffer, Elsig and Puig, “Extensive (but Fragile) Authority,” 255; Marceau and Hurley, “Transparency and Public Participation,” 36–39.

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more publicly known and available to their diverse subjects can in turn feed “into a broader public discourse on the justifications behind the resulting decisions, a factor all the more important the more international courts,” such as the WTO DSS, are engaged in the exercise of public authority.126 Hence, like the procedural development concerning amicus curiae briefs, the open hearings procedure holds the potential to improve the standing of the WTO DSS as a “public reasoner.”127

The WTO DSS as a Custodian of Public Deliberation within States The WTO DSS, as implied in this chapter, is more than an international court that should be able to justify its exercise of public power in terms of public reason and, for this purpose, to foster greater transparency and deliberation in its decision-making process. In carrying out its judicial functions, the DSS also acts as a “custodian” of public reason that safeguards and nurtures deliberative decision-making procedures at the domestic level – within the states whose acts and measures the DSS is called upon to review.128 Along this second dimension of “deliberative public reason,” then, the DSS is recast as a review court that scrutinizes the quality of the decision-making processes followed by national legislators and administrators, with a view to ensuring that their measures that violate the WTO agreements and adversely affect the rights of others in the international trading system are the result of “a sufficiently legitimizing democratic or deliberative process.”129 Notable illustrations of this DSS role as played out in trade-and rulings may be found, among others, in those instances where WTO adjudicators applied the balancing analysis introduced to the chapeau of GATT Article XX. As explained above, in its growing body of case law on trade-and issues, the AB interpreted the chapeau of Article XX as embodying a fundamental balance between the right of WTO members to adopt trade-restrictive measures that pursue certain legitimate public values and the right of other members to trade. However, in concrete cases, when seeking to identify the appropriate balance between the two rights, the AB chose to not engage itself in substantive review of the contested domestic measure, in the sense of determining the relative importance of the competing trade 126 127

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Von Staden, “Democratic Legitimacy,” 1032. This is another term used by Mendes in his discussion of the character of constitutional courts. Mendes, Constitutional Courts, p. 86. C.f. Chapter 1 in this volume. Chapter 1 in this volume.

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and nontrade public interests at stake and whether an appropriate balance had been struck between them by the national regulator.130 Instead, the AB limited its judicial review under the chapeau to “the procedural side of the balancing test.”131 Rather than second-guessing the substantive policy decision made at the national level, the AB assessed whether the traderestrictive measure, as applied, was disproportionate, discriminatory, or unreasonable132 while focusing on the regulatory design and procedures through which the measure had been adopted and implemented.133 Thus, for example, in US-Shrimp, the AB’s finding of the US traderestrictive environmental regulation as failing to meet the requirements of the Article XX chapeau turned not on its substantive content (i.e., its prioritization of environmental objectives over trade interests) but on various deficiencies in the procedures and operational features defining the context in which the regulation was applied. In particular, the AB stressed that the administrative procedures followed by the US authorities in the application of their regulatory measure were not transparent, did not afford foreign interested parties a formal opportunity to be heard, and provided no formal reasoned decision or procedure for appeal.134 And so, rather than assessing whether the US policy decision was substantively correct, for which the AB would have had to second-guess the US decision and substantively balance competing societal values, the AB strictly scrutinized the processes through which the US policy was applied, articulating the procedural requirements its administration should implement vis-à-vis foreign governments and traders for its trade-restrictive measure to be able to remain in place. Notably, while this kind of proceduralist review might lead to greater deference toward the value choices reached at the domestic level, it nonetheless provides for strict judicial scrutiny of the processes followed by national legislators and administrators,135 imposing “procedural checks” on domestic decision-making with cross-border consequences.136

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Lang, World Trade Law, p. 324. Andenas and Zleptnig, “Proportionality,” 411–412. Ibid. Lang, World Trade Law, pp. 323–324; Howse, “20 Years On,” 51–53. US-Shrimp, paras. 180–181. In this respect, the strict procedure-focused review followed by the AB seems to resonate with Habermas’s argument suggesting that review courts should show less deference when democratic deliberation and procedure is at stake. See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996), p. 280. Andenas and Zleptnig, “Proportionality,” 405, 412.

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In later jurisprudence, the AB followed a similar course. For example, in the 2014 EC-Seal Products ruling concerning the EU ban on the importation and sale of seal products, the AB paid close attention in its balancing analysis under the chapeau of Article XX to the structural and procedural aspects of the EU regulation, while steering clear of passing judgment on its substance. Thus, reviewing the exception provided in the EU seal regime for products resulting from subsistence-seal hunting by indigenous communities (the “IC exception”), the AB faulted the EU for not pursuing deliberative and “cooperative arrangements” in order to facilitate access to the IC exception by relevant actors in third states, such as Canada (a co-complainant in the case).137 The AB then went further to criticize the “ambiguities in the criteria of the IC exception and the broad discretion” consequently accorded to the EU authorities in applying these criteria, which could result in the abuse of the exception to the detriment of foreign interests.138 According to the AB, then, for the seal regime to meet the requirements of the chapeau of Article XX, it needed to more clearly delimit the discretion of the EU administration and establish more transparent and deliberative procedures for the benefit of affected foreign states and economic actors. Through this and other rulings, the DSS, under the guidance of the AB, has thus worked to reconstruct more participatory, transparent, and equitable decision-making processes at the domestic level. The placing of WTO adjudicators in a position to review the consistency of members’ regulatory measures with WTO law has allowed them to carry out “a process-perfecting task of regulation with international repercussions,”139 assuring that domestic measures are adopted and applied through a decent, deliberative decision-making process. It should be noted that especially in sensitive cases such as trade-and disputes, the higher level of scrutiny over the legislative or administrative processes underlying members’ regulations allows the DSS to apply a lower level of scrutiny over the substantive compatibility of such regulations with WTO agreements,140 thereby avoiding serious challenges to the legitimacy of its judicial intervention.141 It thus follows that by acting as 137 138 139

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EC-Seal Products, para. 5.337. Ibid., paras. 5.324–5.328. M. Ioannidis, “A Procedural Approach to the Legitimacy of International Adjudication: Developing Standards of Participation in WTO Law,” German Law Journal, 12 (2011), 1176. Shlomo Agon and Benvenisti, “The Law of Strangers,” 625. Ioannidis, “Procedural Approach,” 1176.

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a custodian of public deliberation, the DSS not only checks the legitimacy of the acts and decisions of other public authorities but also works to enhance the legitimacy of its own decisions and authority.

3 Last but Not Least: Political Obiter Dicta Alongside the substantive and deliberative dimensions of the DSS’s public reason account, one last pertinent aspect to be considered in tradeand cases is the engagement of WTO adjudicators in a distinctive justificatory discourse, at times through designated “explanatory paragraphs” arriving at the very end of the DSS ruling, after the respondent’s traderestrictive measure has already been found to be inconsistent with WTO law. One notable example of such may be seen in US-Clove Cigarettes, where the AB, after ultimately declaring the US anti-tobacco regulation inconsistent with TBT Article 2.1, closed its ruling with the following explanatory note: In reaching this conclusion, we wish to clarify the implications of our decision. We do not consider that the TBT Agreement or any of the covered agreements is to be interpreted as preventing Members from devising and implementing public health policies generally, and tobaccocontrol policies in particular . . . . Moreover, we recognize the importance of Members’ efforts in the World Health Organization on tobacco control. While we have upheld the Panel’s finding that the specific measure at issue . . . is inconsistent with Article 2.1 . . . we are not saying that a Member cannot adopt measures to pursue legitimate health objectives such as curbing and preventing youth smoking. In particular, we are not saying that the United States cannot ban clove cigarettes; however, if it chooses to do so, this has to be done consistently with the TBT Agreement. Although Section 907(a)(1)(A) pursues the legitimate objective of reducing youth smoking by banning cigarettes containing flavours . . ., it does so in a manner that is inconsistent with the national treatment obligation in Article 2.1 . . . as a result of the exemption of menthol cigarette . . . from the ban on flavoured cigarettes.142

These explanatory paragraphs, presented after the AB had already come to the conclusion that the US legislation violated the TBT Agreement, did not form part of the operative “binding” decision in US-Clove Cigarettes. As 142

US-Clove Cigarettes, paras. 235–236. Similar language was used in several other cases involving nontrade concerns. See US-Gasoline, pp. 29–30; US-Shrimp, paras. 185–186; Appellate Body Report, China–Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/ AB/R (19 January 2010), para. 335.

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such, these passages did not constitute part of the legal reasoning and reasons offered by the AB for its decision, but rather political obiter dicta that had no normative bearing on the legal outcome already reached.143 Still, these explanatory paragraphs, it is argued, constituted more than mere appeal to public opinion or strategy aimed at strengthening the perceived legitimacy of the judgment. And while they represent a departure from the AB’s ordinary legal reasoning, these paragraphs can in fact be read in congruence with the public reason approach, as a recognition by the court of the importance of giving public justification, such that may be available and accessible to the various subjects affected by the decision, as an element requisite to enhance its normative legitimacy. And so, in line with the various public reason patterns followed by the DSS in trade-and disputes, the explanatory paragraphs in US-Clove Cigarettes can be seen as an attempt by WTO adjudicators to make their ruling – which compromised a fundamental public value related to human health on the basis of rather technical and complex legal arguments – more accessible and understandable to the various stakeholders affected, in and outside of the WTO. Among other things, the substantive orientation in these paragraphs, reaffirming the importance of the nontrade policy objective pursued by the US legislation, makes clear the plurality of public values that have informed the AB ruling. In this sense, these paragraphs represent a way for the adjudicators to explain that despite their legal finding of WTO inconsistency, their decision did not ignore the other social values at stake, values that are of concern to a wide public at the substate and the global levels. More to the point, however, the explanatory paragraphs, as their language suggests, represent a means by which the AB attempted to clarify not only the considerations and values underlying its decision but also the implications emanating from the ruling. Stated differently, these paragraphs represent the AB’s willingness to communicate to audiences internal and external to the WTO (among them, NGOs, national regulators, the general public, and the WHO) the limited political and legal ramifications arising from its ruling.144 In particular, that the ruling is to be read neither as preventing WTO members and their respective societies from “devising and implementing public health policies” in the future, nor as requiring the responding government in the 143

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T. Treves, “Aspects of Legitimacy of Decisions of International Courts and Tribunals,” in R. Wolfrum and V. Röben (eds.), Legitimacy in International Law (Berlin: Springer, 2008), p. 178. Shlomo Agon, “Clearing the Smoke,” 581–587.

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present case to eliminate the health-related policy found to be WTOincompatible. In these respects, the explanatory paragraphs thus make the DSS ruling more publicly accessible and justifiable to its diverse addressees, including those that are not used to the technicalities often associated with WTO jurisprudence. These addressees may as a result be better positioned to assess and criticize not only the outcome of the case and the suitability of the reasons and reasoning that underpin the decision but also the implications emerging therefrom. This infrequent AB technique of going out of its way to elucidate the limits of the political and legal ramifications of its ruling appears, therefore, to be another jurisprudential element harnessed to the DSS’s legitimacy pursuit in trade-and disputes. This element attests to the DSS’s tacit acknowledgment of the normative legitimacy gap it faces, as well as to its attempt to alleviate this gap by making justifications vis-à-vis a broad range of “legitimating communities” in a way that is relatively accessible to those communities.

IV “Going Public” All the Way? Challenges and Limits to Public Reason in WTO Adjudication The analysis in Section III discloses one notable account of legitimation through public reason in international adjudication. It shows how in the search for new normative grounds on which to establish its legitimacy, the WTO DSS has embraced a range of substantive and deliberative practices that closely resonate with the public reason approach, by which the DSS has sought to provide justifications for its decisions that are directed toward a wide range of affected subjects and in ways that may be reasonably acceptable to them. While the DSS has of course never used the notion of public reason as such, its jurisprudence reveals a genuine recognition of the need, triggered by its increased public authority, to look beyond the bilateral, interstate matrix of WTO disputes, and to develop an approach more accountable toward stakeholders and public values traditionally considered external to the multilateral trade regime. At the heart of this approach, as the trade-and case law suggests, is an attempt by WTO adjudicators to appeal not only to member governments but also to a broader audience comprised, inter alia, of NGOs, domestic publics, and other international institutions, while drawing on a number of jurisprudential techniques (e.g., proportionality testing or teleological interpretations) that may allow the adjudicators to offer reasons that account for a wider set of public goods beyond those of an efficient world trading system.

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Arguably, one may expect a thinner and probably more interstateoriented public reason approach in other types of WTO disputes, where the DSS does not engage in adjudication among competing social values external and internal to the WTO regime, that is, when “only” competing trade-related interests are at stake. But here it should be noted that even within the context of trade-and disputes, one should not overstate the shift away from the state-centered approach to public reason traditionally associated with international courts. Thus, while the discussion in Section III exposes a mindful judicial effort to go beyond a narrow statist conception of public reason with a view to addressing publics other than WTO member states, the experience with the DSS suggests nonetheless that in situations of friction, the public of states continues to be the primary public for the DSS – i.e., those for whom the court’s decisions must be reasonably acceptable. The controversial issue of the role to be played by non-WTO international law in WTO disputes demonstrates this point. As explained in Section III, the WTO DSS, like other international courts, may work to enhance its public reason–based legitimacy, inter alia, by evolving its practices in ways that coincide with shifting conceptions of legitimate international order and that reflect the norms emerging in other fields of the international legal system. Attempts by the DSS to follow this legitimation route were envisaged already in the early case of US-Shrimp, where the AB addressed several international environmental instruments under its analysis of GATT Article XX. Through such references, the AB sought to develop a line of reasoning that demonstrates compatibility with the aims and purposes of both the WTO legal regime and the practice of international law more generally, and that a broader audience of affected stakeholders, beyond WTO members and trade experts, can recognize as an appropriate and acceptable form of reasoning. However, these same references to non-WTO legal sources were viewed by some WTO members as going beyond the AB’s mandate, which they saw as confined to WTO law. Consequently, in later jurisprudence, WTO adjudicators have fine-tuned their approach to non-WTO international legal sources, often referring to them merely as relevant factual evidence145 (as was the case, e.g., in US-Clove Cigarettes).146 This uneasiness of WTO adjudicators with an overtly broad approach to using other rules of international law in their judicial reasoning reflects, in turn, the “fragile standing in terms of legitimacy” of 145 146

Kleinlein, “Judicial Lawmaking,” 1153. Shlomo Agon, “Clearing the Smoke,” 578–579.

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a specialized international court like the WTO DSS when having to decide cases involving values internal and external to its regime147 and to do so while addressing multiple publics simultaneously. Put differently, this discomfort on the part of WTO judges illustrates the difficulty faced by an international court in those instances where certain types of reasons or forms of reasoning, such as referencing other norms of international law, are of the type that a significant part of the court’s “public” – the member states – cannot view as an appropriate justification for its rulings. For our purposes, the issue of the role of non-WTO law in WTO adjudication (similar to the contentious amicus curiae issue) serves to highlight, therefore, some of the most fundamental challenges faced by an international court like the DSS in attempting to devise a viable public reason approach. The need to address multiple parallel publics – at different levels of governance – makes it challenging for an international court, even perhaps more so than for its national counterparts, to determine what the content of a public reason can be “or what counts as reciprocally accepted values, norms, and forms of justification.”148 Furthermore, the complex reality of numerous publics to which justification is owed requires an international court to constantly strike a balance between, on the one hand, needing to address and account for its state parties whose consent for the court’s jurisdiction continues to form a valuable source of normative (as well as sociological) legitimacy and, on the other hand, the court’s evolving duty toward affected stakeholders other than states, at both the national and global levels. As Langvatn notes, the exact balance of taking into account the respective interests of states vis-à-vis other stakeholders and of addressing governments as opposed to other affected subjects depends on the type of international court in question and the context in which it operates.149 One can argue whether in the case of the WTO DSS presented in this chapter, the court succeeded in striking an adequate balance between its multiple legitimating communities. In any event, the case of the DSS sheds important light on the constraints placed on an international court embedded in what is a highly pluralistic, multiconstituency (still largely intergovernmental) political setting in offering public justifications that are reasons for all

147 148 149

Kleinlein, “Judicial Lawmaking,” 1164. Langvatn, “Should International Courts Use Public Reason?,” 373. Ibid., 371–372.

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those affected by its decisions, and thus in drawing on public reason– giving as a means for alleviating its normative legitimacy gap. Yet even if one leaves aside for a moment the multiple constituencies of international courts beyond states, and focuses only on the public of member governments, the case of the DSS further serves to illuminate the challenges such a court may face in its public reason legitimation endeavors, when, for example, engaging in judicial review of national measures through practices such as proportionality testing. As discussed in Section III, the DSS’s case law in trade-and disputes reveals a clear attempt by the AB to incorporate some sort of proportionality (or weighing-andbalancing) test into the analysis of the necessity requirement enshrined in several policy exceptions in GATT Article XX. And yet, despite the introduction to WTO jurisprudence of this canonical pattern of legal reasoning and judicial review, some commentators have argued that in this aspect as well, the AB has not gone public all the way in the sense that it has avoided drawing upon its review power to conduct an in-depth inquiry of members’ trade-restrictive measures and their underlying justifications. Thus, criticizing the AB’s approach on this matter, Thomas Kleinlein has commented: While the Appellate Body referred to a test that weighs and balances . . . the value of the regulatory goal, the contribution of the measure to achieving the regulatory goal, the cost of the regulatory measure, and the cost to trading partners via the mechanism of a restriction to trade, it has never documented in an opinion its application of this type of test.150

Chad Bown and Joel Trachtman have further elaborated on this point, noting that the AB “has shown itself unwilling to evaluate for itself . . . in any but the most gross categories, any of these four factors” of the weighing-and-balancing test;151 yet, “one might ask, if you consider these factors, but you do not evaluate them, in the sense of assessing their magnitude, and you do not compare them with one another – the costs with the benefits – how do you determine which domestic measures are acceptable and which are not?”152 It seems that the only responsible answer, Bown and Trachtman have concluded, is that without careful evaluation of these factors by the reviewing court, the court should be very deferential.153 This is indeed the situation in which the AB has found 150 151

152 153

Kleinlein, “Judicial Lawmaking,” 1153. C. P. Bown and J. P. Trachtman, “Brazil–Measures Affecting Imports of Retreaded Tyres: A Balancing Act,” World Trade Review, 8 (2009), 88. Ibid. Ibid., 88–89.

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itself. But as these commentators have rightly opined, this degree of deference in the proportionality analysis seems not to satisfy the mandate of the AB.154 In other words, one would expect the AB to seek greater analytical depth in its assessment of the justifications cited by member states in defense of their national measures that infringe WTO law and the rights of others in the international trading system. Interestingly, these features of the DSS’s approach toward the proportionality analysis seem to share certain commonalities with the features identified in the practice of other international courts, such as the European Court of Human Rights (ECtHR), when scrutinizing national laws that interfere with the treaty rights the court is meant to enforce.155 As Sadurski has noted in the context of the ECtHR, these deficient features of the proportionality analysis, while unfortunate from the point of view of the ideal of public reason, are best explained in terms of “judicial diplomacy,” as the court attempts to avoid head-on clashes with member states and strives to maintain its legitimacy capital.156 As the discussion in this chapter suggests, the same can be said with respect to the WTO DSS, which in its deferential approach to the weighing-andbalancing test appears equally determined to uphold WTO members’ support for its authority. This state of play reveals, in turn, the complex and fundamental tradeoff that international courts such as the WTO DSS and the ECtHR face in their quests for legitimacy. At times, the need of such courts to sustain their social legitimacy, which relies in large part on the continued support of member states for their authority and operation, risks compromising the public reason–based legitimacy of these courts, which largely derives from the quality of the judicial review of member states’ violating measures and the consequent depth and vigor of their judicial rulings. The need of international courts to maintain their social legitimacy seems to constitute therefore an additional, rather heavy constraint on their ability to use public reason in an effort to mitigate their pressing normative legitimacy deficit. To be clear, this is not to suggest that public reason has no role to play in alleviating the legitimacy gaps of international courts such as the WTO DSS; rather, it is meant to highlight the limitations of public reason as a legitimating device in the hands of international courts

154 155 156

Ibid., 89. See Chapter 9 in this volume. Ibid.

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due to the complex political and legal context in which they exercise their public authority.

V Conclusion This contribution has explored the concept of public reason as manifested in international adjudication in a reality where the decisions of international courts reach far beyond their traditional confines, affecting the interests of numerous stakeholders within and beyond their member states. Focusing on one key forum of global judicial governance, the WTO DSS, the chapter has illustrated how WTO adjudicators have attempted to address their legitimacy deficit and justify their increased exercise of public authority by appealing to public reason, that is, to the types of reasons and forms of reasoning they act on, while also broadening the scope of the constituencies to whom public justification is owed. In so doing, the chapter has offered some insights on the different ways in which the concept of public reason may be said to relate to international courts, as well as on what is needed in order to provide public justification in the deeply pluralistic setting that international courts such as the DSS operate in. At the same time, the chapter has also highlighted some of the challenges and constraints such a court might confront in its public reason–giving endeavors. Most notably, the DSS’s case seems to suggest that in a world where states still exert substantive control over the mandate and operation of international courts, a compelling link must remain between the reasoning and justifications provided by the court and its member states for the former to maintain the degree of (social) legitimacy needed to ensure its very existence.

PART III Critical Perspective on Public Reason in Courts

12 Constitutional Interpretation and Public Reason: Seductive Disanalogies c h ri s t o p h e r f . zu r n

There is much that is seductive about John Rawls’s striking claims that constitutional courts should and, in fact, do exemplify public reason,1 not least of which is the prospect of making a connection, through the link of public reason, between the institution of court-based constitutional review and the legitimacy conditions of liberal democracy. Many prominent liberal and deliberative democratic theories have sought to assuage democratic worries about judicial review by extolling judicial discourse as an exemplar of public reason. This chapter critically assesses the analogies and disanalogies between public reason and actual judicial discourse, thereby undercutting the attempt to legitimize judicial review in terms of its allegedly superior ability to speak in the name of, and for, the people’s shared political principles. The first section of the chapter indicates schematically how public reason theorists can be seen as responding to a nexus of theoretical and empirical factors that call into question the legitimacy of court-based constitutional review. The second section spells out how the strategy of appealing to public reason is seductive for Rawls and Christopher Eisgruber and then indicates the remarkable prevalence of the public reason strategy in contemporary political philosophy. The third section makes a key critical assessment by attending to the actual work product of the US Supreme Court. The central claim is that what that court actually does is not, in fact, sufficiently analogous to what public reason theories suggest it does or ought to do. In brief, while the Supreme Court does engage in reason-giving to support its decisions – as the public reason strategy suggests – its reasons are (largely) legalistic and specifically juristic reasons, not the theorists’ idealized moral-political reasons on matters of fundamental principle. Section IV 1

John Rawls, Political Liberalism (New York: Columbia University Press, 1996), pp. 231–240.

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considers three types of institutional factors that explain why there is a significant disanalogy between what the court does and what public reason theories require it to do. Section V then suggests the need for further research about the public reason strategy when used beyond the nationstate, that is, in claiming legitimacy for transnational and international courts as public reasoners.

I The Public Reason Strategy and Constitutional Courts Consider three sets of institutional facts about the set of established and well-functioning constitutional democracies. First, to my knowledge, all of them have constitutional procedures for changing the constitution that require the involvement of citizens, either directly through referenda or constituent assemblies or indirectly through the electoral accountability of officials involved, such as legislators and executives – and frequently through some combination of both direct and indirect citizen participation.2 That is to say, all of them institutionally insist that real democratic processes are essential to changing the constitution. Not a single one of them has a procedure for changing the constitution that cuts out citizen involvement entirely, say through the exclusive use of a panel of unaccountable appointed moral experts, fully insulated from democratic political control or influence. All agree that citizen control is ineliminable from constitutional change processes. So, at least formally, established constitutional democracies structure their institutions so that democracy is essential to and ineliminable for processes of constitutional change, or what we might also call “constitutional legislation.” Now consider, second, that most (but not all) constitutional democracies have constitutional courts, established either formally in the constitution or through historical development. As high courts, the judges themselves, their working processes, and their results are all institutionally insulated from democratic control and accountability, even as their decisions are binding on the entire citizenry and the other branches of government. As constitutional courts, they have the power of judicial review, that is, the power to strike down laws enacted and actions taken by the democratically accountable branches of government when those laws and actions are determined to violate the constitution. 2

I have validated these claims for my data set of those 69 consolidated constitutional democracies with a population of more than 500,000 and scoring sufficiently well on three established democracy indices – Polity IV, UDS, and Freedom House – thought the claims are also true for a broader set of nations.

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Third, as seems evident to any clear-eyed empiricist, in the process of exercising the power of judicial review, such constitutional courts inevitably end up not only simply enforcing preexisting constitutional standards but also, in fact, positively developing new constitutional law. Said another way, constitutional courts inevitably take on the powers of constitutional legislation.3 So, we have three sets of facts evidently in tension: the institutional aspiration to reserve the powers of constitutional legislation solely to democratically accountable actors, the institutional fact of democratically unaccountable courts as constitutional guardians, and the empirical reality of those (unaccountable) constitutional guardians becoming (unaccountable) constitutional legislators. For political philosophy and political theory, such a tension is a very tempting place to focus attention, and indeed there have been all manner of attempts made to do so. One conceptual strategy is simply to deny the importance of democracy, affirm the absolute normative priority of individual rights over other values and principles, and celebrate judicial constitutional authorship as the only way to ensure fundamental individual rights.4 Of course, the argumentative costs of such a strategy are high, since the theory needs to make several controversial moves along the way. Needless to say, few contemporary political theorists have been willing to boldly take on all these argumentative costs. Some will be worried about strong moral realism about rights, or about realism concerning their absolute priority; some will want to find a place for the ideals of democratic political equality alongside or in concert with ideals supporting individual rights; some will be worried about reliably identifying the moral experts or even the existence of such experts; some will be concerned that the argument places too much faith in the determinacy of practical reason; and so on. Hence, within the broad family of liberal democratic theories, other conceptual strategies for addressing the institutionalized tension have been more prominent. This chapter addresses one such strategy – the public reason strategy – that is widely endorsed in different variants by theories that are more 3

4

See Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (New York: Cambridge University Press, 2007), pp. 256–262, for my own explanation of why constitutional protection by a court inevitably transmutes into the elaboration of new constitutional content. In the US context, see, e.g., Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd edn. (New Haven: Yale University Press, 1986), and Jesse H. Choper, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980).

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democratically inclined – in particular, deliberative democratic theories – as well as those that are more liberal in character, especially those inspired by Rawlsian political liberalism. The central inferential intuitions of this public reason strategy usually go something like the following: Quality democracy, democracy worth striving for, cannot always be just a matter of numbers or bare majority rule, but must somehow involve making collective decisions on the basis of the best available reasons, at least about fundamental matters. This is because specific political decisions must be acceptable not only to those who are in favor of them but also to those who disagree with them. On fundamental matters, on “constitutional essentials” to use Rawls’s terminology, such acceptability to all can be achieved if the decisions are simultaneously based on abstract principles that all citizens endorse, based on the best available reasons concerning the specific entailments of those principles, and facially seen to be so based. So the political choices on constitutional essentials can be understood as legitimate for both winners and losers, as it were, if those choices are the results of abstract reasons all citizens share, of quality exercise of practical reasoning about the entailments of those reasons, and all this as clearly evident from the processes ensuing in the choices. But which political institutions actually base their decisions, and are seen as basing them, on principled reasons shared by all and on practical reasoning about the entailments of those shared principles? Courts are the answer. They are uniquely reasoning-based institutions and are seen as such. If courts actually use the shared principles of public reason as the basis of their reasoning, then their decisions can be understood as consistent with the demands of quality democracy. As long as courts positively elaborate and develop the constitutional essentials in line with the content of the shared principles – and are seen as doing so – then their function as constitutional legislators is not fatally in tension with the institutional demand for the constituent power to be held by the people. Constitutional courts, then, because they speak in the language of the people’s public reason and because they are the institutional representatives of the people’s public reason, are in fact eminently democratic actors, even when they are legislating new constitutional content. This public reason approach to answering the democratic worries about judicial review is quite widely endorsed in contemporary scholarship. In the next section I will explain why it is a seductive strategy by elaborating a few versions of it in Rawls, Eisgruber, and others. In Section III, I will argue that the strategy nevertheless fails empirically

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when evaluated in the light of the actual work product of the Supreme Court of the United States.

II The Seductions of the Public Reason Approach: Rawls, Eisgruber, and Others 1 The Juridical Exemplification of Public Reason: Rawls Although Rawls is the well-spring of political theory focusing on public reason, he himself does not claim to justify judicial review in those terms.5 Rather, in the course of clarifying the meaning and place of “public reason,” Rawls makes the more modest claim that a supreme constitutional court should be understood as “the exemplar of public reason” in a constitutional democracy.6 To understand this, it is necessary to look at the problem he takes the conception of “political liberalism” to be solving. In A Theory of Justice7 Rawls outlines a powerful set of arguments for a deontological justification of liberal principles of justice – what he calls “justice as fairness.” Over time, he comes to believe that this conception is seriously deficient in its unrealistic assessment of the extent to which all citizens in actually existing constitutional democracies would or could unreservedly endorse the basic principles of justice as fairness. In particular, Rawls becomes much more sensitive to the apparently ineliminable plurality of irreconcilable moral worldviews in healthy democracies: “A modern democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines. No one of these doctrines is affirmed by citizens generally. Nor should one expect that in the foreseeable future one of them, or some other reasonable doctrine, will ever be affirmed by all, or nearly all, citizens.”8 The theoretical problem raised by this situation – what Rawls calls the “fact of reasonable pluralism” – is that the legitimacy of a democratic government hangs on the acceptance, by its citizens, of the basic moral soundness of at least the fundamental principles that are to govern their consociation, the principles that a constitution is intended to instantiate and promote. But how can diverse citizens, with their different and 5

6 7 8

Sections II–IV of this chapter contain reworked versions of previous work, Zurn, Deliberative Democracy, pp. 168–212, with new material. Rawls, Political Liberalism, p. 231. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). Rawls, Political Liberalism, xviii.

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incompatible moral worldviews, agree on the same set of moral principles? Rawls’s solution is that citizens can agree on a set of specifically political principles – in what he calls an “overlapping consensus” – meaning that the political principles are simultaneously shared by all the various reasonable comprehensive doctrines, are grounded in those more encompassing moral views, and yet are nevertheless employable independently of each of the comprehensive worldviews. As long as citizens mutually agree to resolve their fundamental political disagreements on the neutral ground of these principles that they all already agree to (though each for their own reasons), then a democratic regime can gain the legitimacy and stability it requires. Furthermore, it is crucial that citizens understand that the overlapping consensus apply not to any and every political issue, nor to any and every social issue, but only to the most basic of political arrangements and underlying principles. “Political values alone are to settle such fundamental questions as: who has the right to vote, or what religions are to be tolerated, or who is to be assured fair equality of opportunity, or to hold property.”9 The requirements that citizens appeal only to the publicly shared principles – while prescinding from any reference to nonshared, nonpolitical contents of their specific comprehensive doctrines – and apply those political principles only to fundamental matters of basic justice and constitutional essentials are then intended to ensure that citizens can treat one another as reasonable and moral consociates when settling their disagreements, even though they hold irreconcilable moral worldviews. Public reason is, however, not merely a matter of content restrictions; it also has positive content requirements. Rawls understands the content of public reason to be comprised of both those substantive political principles shared in the overlapping consensus and commonly shared standards of evidence, inference, and justification. So, on the one hand, public reason contains substantive political principles: principles such as those guaranteeing individual liberty of conscience, rights to due process of law, equal voting rights, democratic structures of government, representative political processes, etc. On the other hand, public reason also contains generally accepted methods of inquiry and deliberation: “We are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial.”10 The proper use of public 9 10

Ibid., p. 214. Ibid., p. 224.

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reason, then, is the key to the legitimacy of democratic decisions, since it ensures that citizens can accept the moral soundness of the basic structures and principles of their government. We are to apply the substantive principles and methods of public reason, and public reason alone, when we are trying to decide on matters of basic justice and constitutional provisions concerning governmental institutions and individual rights. Citizens, candidates, legislators, officials, and – most significantly – judges have a “duty of civility” toward fellow citizens, who have diverse comprehensive doctrines, to employ only public reason’s freestanding principles and forms of reasoning when addressing matters of fundamental importance. For my purposes, the most striking claim that Rawls makes with respect to the way decisive power is distributed through political processes is that a constitutional court, one entrusted with the power of judicial review, should not only employ public reason but also be, for a society, “the exemplar of public reason.”11 He explicates this claim in terms of three theses. First, and most importantly, a supreme court is the exemplar of public reason insofar as it “is the only branch of government that is visibly on its face the creature of that [public] reason and of that reason alone.”12 Unlike other branches of government that may consider ordinary political matters, and so may invoke particular comprehensive doctrines or defer to bare majority preference, a supreme court has “no other reason and no other values than the political” values comprising public reason.13 In other words, only a constitutional court consistently speaks and decides issues solely on the basis of the impartial language tailored to consociation across pluralistic diversity. Second, a supreme court is the exemplar of public reason insofar as it plays an educative role with respect to a society’s publicly shared reason. Since such courts should interpret a nation-state’s constitution and traditions in a way that justifies those as a whole, in the light of the publicly shared conception of justice, a court can show citizens the political values all can be expected to share and embrace. Third, a supreme court with the power of judicial review also educates the public by intervening decisively in constitutional controversies on the basis of shared political values, rather than on the basis of partisan struggles “for power and position.”14 11 12 13 14

Ibid., p. 231. Ibid., p. 235. Ibid. Ibid., p. 239.

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What are we to make of these striking claims? To begin, it is important to note that Rawls merely stipulates that public reason is the reason of a supreme court, and that the supreme court can play an exemplary educative role with respect to the duties of civility. The closest he gets to an argument supporting such contentions is an invocation of Bruce Ackerman’s dualist theory of US democracy, followed by a supposition that in such a dualist regime, “the political values of public reason provide the Court’s basis for interpretation.”15 Second, in Rawls’s defense it must also be noted that there is no evidence empirical or otherwise adduced precisely because he is putting forward the exemplarity claim to clarify what he means by the concept of public reason. He is not attempting to make claims about institutional design, or even about the comparative capacities or separate roles of various governmental organs.16 In fact, he explicitly says that “while the Court is special in this respect, the other branches of government can certainly, if they would but do so, be forums of principle along with it in debating constitutional questions.”17 The point of the discussion of supreme courts in the context of Rawls’s overall political theory is simply to demonstrate what he means by public reason by pointing to what he takes to be its clearest example. A third point is that if Rawls is wrong to point to constitutional court decisions as exemplifying the use of public reason – as I will suggest in Section III – then his subsidiary claims about the educative role of court decisions with respect to public reason will also fall. A supreme court could not educate ordinary citizens either about their duties of civility or about the contents and guidelines of public reason if its decisions are not solely or largely based in – and facially seen to be based in – that special argot of freestanding, public political morality. The fourth point is that if, however, Rawls is right, then we would have some strong prima facie reasons to accord courts a preferred place with respect to democratic deliberations, especially with respect to highly contested but fundamental issues of governmental structure, individual rights, and abstract constitutional provisions. We might then prefer a division of labor between expert deliberators trained to use the moral argot of public reason and populist aggregators who respond directly to the amoral imperatives of interest groups and their threats. For Rawls, then, the fact (if it is a fact) 15 16

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Ibid., p. 234. For a political theorist, Rawls has surprisingly little to say about the design of governmental institutions. Ibid., p. 240.

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that constitutional courts exemplify how to speak in the special language of democratic political consociation renders them exemplars of democratic discussion, rather than an antidemocratic anomaly.

2 The Juridical Representation of the People’s Moral Reason: Eisgruber Although Rawls does not attempt to use this apparent deliberative advantage of courts to justify judicial review as legitimate and recommended, Christopher Eisgruber does.18 However, unlike Rawls who focuses on the restricted and denuded language of public reason that supreme courts are supposed to specialize in, Eisgruber focuses on the institutional incentives that make courts preferred forums for deliberations concerning matters of fundamental political morality, especially in comparison with the branches of government that are more sensitive to popular and electoral pressures. Thus, both idealize courts as unique sites of principled deliberation, even though Rawls takes the language of judicial decisions to be crucial, while Eisgruber focuses on the unique institutional location of courts vis-à-vis electoral pressures. Like others who follow the lines of Alexander Bickel’s distinction between kinds of public forums,19 Eisgruber conceives of electorally insulated courts as the paradigmatic location for principled moral argument about public issues, since, on his account, governmental institutions sensitive to popular input are capable only of bargains and compromises on matters of mere policy. The first major premise in his justification of judicial review is the distinction between matters of principle and policy. Principles reflect our fundamental values, and they should trump our interests. As citizens, we are happy to let ordinary laws and governmental actions be the result of partisan processes that aggregate across our divergent interests and decide such issues of mere policy in a more or less majoritarian manner. We are happy, in Eisgruber’s words, to let such decisions result from “an effort to pander to voters, campaign for higher office, engineer an interest-group deal, or honor a party platform.”20 However, we take some matters to reflect 18

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Christopher L. Eisgruber, Constitutional Self-Government (Cambridge: Harvard University Press, 2001). Bickel, The Least Dangerous Branch; Choper, Judicial Review and the National Political Process; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996). Eisgruber, Constitutional Self-Government, p. 4.

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fundamental and nonnegotiable values, and we expect the decisions of a democratic government to respect this difference. As moral citizens, we should not allow such matters to be decided by crass partisan mechanisms. We want the decision, rather, to reflect our convictions about what is right, no matter what we as private subjects desire. As Bickel puts the point, such decisions should be the result of “a principle-defining process that stands aside from the marketplace of expediency.”21 On matters of principle, then, we insist on deliberative processes that can present, sift, and evaluate moral reasons, rather than mere aggregative processes that reflect the preponderance of private interests across the electorate. If we then ask what governmental institutions could perform such sensitive moral deliberations while remaining true to the demands of principle even in the face of countervailing interests and pressures, a body disciplined by the use of reason and separated from the vicissitudes of majoritarian excitement recommends itself: a court at the apex of appellate jurisdiction, with members having life tenure and so insulated from electoral accountability, and finally entrusted with the power to decide the most fundamental issues of political principle for the nation-state. In other words, the Supreme Court of the United States. Eisgruber supports his second main premise – that such a supreme court is better suited than any other governmental organs to make principled decisions – through a comparative analysis of institutional incentives in the US constitutional scheme. In brief, since courts are insulated from electoral pressures, they are less sensitive to the base and transient desires of the populace and so more suited to rule on fundamental matters of principle. The final major premise in Eisgruber’s brief for judicial review is the claim that, although the practice may be countermajoritarian, it is not antidemocratic. Unlike traditional defenses of judicial review, which celebrate it (especially as practiced in the United States) as a rightsprotecting counterweight to majoritarian democracy,22 Eisgruber aims to show that judicial review is not only democratically legitimate, but also democracy-promoting. His most important argument here claims that democracy should not be understood in terms of majority rule or the general satisfaction of interests, as aggregative models suggest. He suggests, rather, that “sustained public argument about the meaning of 21 22

Bickel, The Least Dangerous Branch, p. 69. Bickel, The Least Dangerous Branch; Choper, Judicial Review and the National Political Process.

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equality and other ideals might plausibly be regarded as the essence of democracy.”23 This deliberative model of democracy, then, shows how the Supreme Court is not antidemocratic. It is rather “a kind of representative institution well-shaped to speak on behalf of the people about questions of moral and political principle.”24 Judicial review is one legitimate institution among others for democratic self-government, provided that we understand democracy along the lines of the legitimacy criterion stressed by political liberals and deliberative democrats alike: Fundamental decisions, at least, ought to be based on the best publicly articulated and publicly acceptable reasons available after debate and discussion. Supreme Court judges are uniquely positioned to be disinterested arbiters and representatives of “the people’s convictions about what is right.”25 On these matters at least, according to Eisgruber, judges speak better for the people than any other governmental actors.

3 The Public Reason Strategy Is Widely Shared The seductive idealizations of courts as uniquely public reasoners and of American-style constitutional courts as the preferred site in government for reasoned deliberation are widely shared across a number of otherwise quite divergent contemporary theories. Rawls’s thesis that constitutional juridical discourse exemplifies public moral-political discourse, rather than a mere fight for power and position, is of course quite similar to the views of Bickel and Ronald Dworkin that courts are uniquely suited to be the governmental “forum of principle” in contrast to other governmental organs, which are structured around reason-independent contests over policy fought out in the media of majoritarian preferences, power, and position.26 Bickel and Dworkin in fact explicitly endorse the educative thesis, also shared by Rawls and Eisgruber: Namely, a supreme constitutional court’s moral-political discourse can educate the citizens in how to reason with one another on contested issues and so improve their deliberations.27 Frank Michelman argues that the US Supreme Court 23 24 25 26

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Eisgruber, Constitutional Self-Government, p. 35. Ibid. (emphasis added). Ibid., p. 5. Bickel, The Least Dangerous Branch, pp. 22–31; Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), pp. 71–79. Bickel, The Least Dangerous Branch, p. 26; Dworkin, Freedom’s Law, pp. 345–346. Jeremy Waldron expresses strong empirical reservations about this educative thesis in Law and Disagreement (New York: Oxford University Press, 1999), pp. 289–291.

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has a special responsibility for communicating with citizens in a moralpolitical discourse – for being open to the full blast of sundry reasons, interests, and opinions of the citizenry – when it settles matters of fundamental constitutional interpretation.28 By far the greatest resonance is found, however, in Eisgruber’s thesis of juridical discourse as serving a representative function. The basic idea here, endorsed under many variations, is that when the Supreme Court exercises its power of constitutional review by using public reason, it is representing the highest and truest principles of the American people against whatever other unsavory and partial interests may have been responsible for the discredited statute or regulation. In this story, juridical discourse represents – speaks for – the true people and their deepest interests, and speaks against those who, despite their apparent heightened accountability to the people, would falsely claim to speak in the people’s name. Such theories have a provenance at least as far back as Alexander Hamilton’s claim in Federalist Paper, No. 78 that judicial review of legislation merely represents the higher will of the people, the will enshrined in the constitution, against the necessarily subordinate will of the legislature.29 In contemporary jurisprudence there is a veritable efflorescence of such theories, all aiming to reduce the manifest tensions between the normative ideal of democratic constitutional legislation and the institutions and practices of American-style judicial review. What is remarkable in this literature is how prevalent the general strategy clearly articulated by Eisgruber is: namely, to conceive of constitutional juridical discourse, in some way and with respect to some types of issues, as more representative of the deep, true, or important will and interests of the people than the discourses employed in other branches that are directly accountable to citizens. By such a conception, then, the Supreme Court of the United States, or its close relatives in other nations, is transformed from an antidemocratic anomaly into a, if not the, democratic paragon. Thus Bruce Ackerman, distinguishing between ordinary times when citizens are apathetic, ignorant, and selfish and extraordinary times when the We the People collectively take up our democratic constitution-making powers, argues that the Supreme Court represents and protects the authentic will of the people by using their special reasoning powers of 28

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Frank I. Michelman, Brennan and Democracy (Princeton: Princeton University Press, 1999). Alexander Hamilton, James Madison, and John Jay, The Federalist with Letters of “Brutus” (New York: Cambridge University Press, 2003), p. 380.

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interpretation during those times when We the People is asleep.30 Dworkin argues that the court speaks for the people considered as a collective self-governing association by attending to the principled democratic conditions necessary for legitimate political association.31 Samuel Freeman makes the public reason analogy clear, arguing that since the court issues decisions backed by reasoned opinions, it exemplifies the public use of reason. Hence, judicial review represents the people’s sovereign precommitment to maintaining the equal value of rights that they would have expressed in a foundational, legitimacyconferring social contract.32 This list could easily be extended.33 In each case, one central premise of these representational arguments is that, in some manner, an institution like the Supreme Court of the United States is uniquely qualified to represent the people’s principles because of its specially heightened capacities for reasoned deliberation about fundamental moral-political matters. And, whether implicit or explicit, it appears that a central motivation for such a belief in the judiciary’s heightened capacities is judicial work product: Judicial decisions are usually accompanied by reasoned opinions explicitly put forward as supporting the decisions. But, as I will now argue, equating the reasons used by judges with the disanalogous moral-political reasoning required by democratic deliberation is to be taken in by a seductive disanalogy.

III The Disanalogy: The Supreme Court of the United States Is Not a Public Reasoner Whether we are talking of Rawls’s claim that a constitutional court exemplifies the use of public reason, or Eisgruber’s claim that it speaks for the people’s public reason, or the manifold of other similar exemplificative, educative, representative, and communicative claims – all rest on an analogy between the reasons that judges use and public reason. Said another way, all presuppose that judicial discourse is a language well suited to the task of democratic deliberation on fundamental matters. 30

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Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991), pp. 165–265. Dworkin, Freedom’s Law, pp. 1–38. Samuel Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review”, Law and Philosophy, 9 (1990–1991), 327–370. Space prohibits a discussion of further examples in the work of Alon Harel, Christina Lafont, Michael Perry, Jeb Rubenfeld, and Lawrence Sager.

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However, what is most striking when one actually reads the constitutioninterpreting opinions of the US Supreme Court is that, in the main, they are neither couched in the special argot of public reason nor concentrated around the principled moral-political reasoning these theories idealize. The court’s actual constitutional reasoning is, rather, dominated by the technicalia of legal argument: jurisdiction, precedent, consistency, authorization, distinguishability, separation of doctrine from dicta, justiciability, canons of construction, and so on. Even if they obey the content restrictions of public reason by prescinding from reference to comprehensive doctrines, they do not obey public reason’s content requirements of employing the substantive moral-political principles of the overlapping consensus. Elsewhere I have considered at length a series of US constitutional cases in four different areas – religious liberty, criminal punishment, individual liberty, and electoral districting – in order to show how the actual judicial reasons adduced in support of the decisions are dominated neither by the substantive content of America’s public reason nor even more generally by sustained arguments of moral-political principle, but rather by strictly juristic considerations.34 Here I simply review those key findings in summary form, with brief reference to a few more recent examples. Consider first a question the Supreme Court of the United States agreed to decide during its 2004 term: Is a law directing the daily recitation in elementary school of the Pledge of Allegiance, which contains the words “one Nation under God” a problematic violation of the separation of church and state? Although of course the case was argued in terms of the anchoring legal text – here the clause of the First Amendment to the US Constitution barring “an establishment of religion” – it is easy to translate the presenting question into Rawlsian terms; here the question of whether the recitation of the Pledge impermissibly oversteps the requirements of state neutrality vis-à-vis specific comprehensive doctrines. Did the court exemplify public reason in its decision and opinion; did it represent the fundamental principles of the people? I think the actual work product of the court is sure to disappoint adherents of the public reason strategy: “We conclude that, having been deprived under California law of the right to sue as next friend, Newdow [the respondent father who brought the original suit] lacks prudential standing to bring this suit in federal court.”35 Thus rather than deciding broad 34 35

Zurn, Deliberative Democracy, pp. 187–206. Elk Grove Unified School District et al. v. Newdow et al., 542 U.S. 1 (2004), pp. 17–18.

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questions about the meaning and import of the principle of separation of church and state as effected through the US Constitution’s First Amendment, or even deciding narrower questions of whether this specific California law establishing the daily school recitation of the Pledge violates the clauses, the court invoked a specifically legal principle to simply avoid such questions. Said in public reason terms, after agreeing to carry out its democratic tasks of exemplifying and representing the people’s moral-political reason, the court switched to its preferred legalistic language and found a way of shirking its exemplary duties of civility. A decision that turns on accidents of the standing of one of the parties simply cannot be said to employ, and crucially result from, reasoning based in fundamental moral-political principles in the way envisioned by the public reason strategy. Consider next a question of criminal law that the 2003 case of Lockyer v. Andrade raises: Is a prison sentence of two consecutive twenty-five years-to-life terms an appropriate punishment for the petty theft of approximately $150 worth of videotapes, where that theft resulted in a third lifetime felony conviction?36 The case raises fundamental moralpolitical questions about the purpose and limits of just punishment. Put in the terms of the US Constitution, and as rendered to the court by the defendant, the question is whether Andrade’s punishment violated the Eighth Amendment’s prohibition against inflicting “cruel and unusual punishments.” To the best of my nonlawyerly abilities to figure it out, here is how the Supreme Court addressed the question. According to Justice Sandra Day O’Connor, the Ninth Circuit Court erred in ruling that the sentence violated the Eighth Amendment, because (1) the Ninth Circuit did not have jurisdiction to grant habeas corpus relief to Andrade, since (2) it did so on the theory that a Supreme Court doctrine of “gross disproportionality” announced in Solem v. Helm (1983)37 was “clearly established law” under the terms of an unrelated federal statute (the Antiterrorism and Effective Death Penalty Act of 1996) and (3) had thus been objectively misapplied by the California Court of Appeals. However, (4) since thickets of precedential “cases exhibit a lack of clarity 36

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Lockyer v. Andrade, 538 U.S. 63 (2003). Defendant Andrade’s effective punishment of lifetime imprisonment resulted from California’s mandatory sentencing law, passed by popular referendum and intended to reduce the sentencing discretion of judges. After a so-called third strike felony conviction, there is a mandatory sentence of at least twentyfive years and up to life imprisonment. Similar mandatory sentencing laws were passed in many US jurisdictions during the 1990s. Solem v. Helm, 463 U.S. 277 (1983).

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regarding what factors may indicate gross disproportionality,”38 the principle is fuzzy and so “applicable only in the ‘exceedingly rare’ and ‘extreme’ case”39 (5) the California Court of Appeals could not have made a clear error with respect to Supreme Court precedent as clearly established law for, (6) on the one hand, there was no precedential clarity and, (7) on the other, in citing precedent, the California Court of Appeals did not violate the rule of law by “confron[ting] a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arriv[ing] at a result different from [Supreme Court] precedent.”40 Finally, (8) the Ninth Circuit erred by incorrectly defining the controlling habeas relief standard of “objectively unreasonable” to mean “clear error.”41 One way of interpreting this kind of a decision is as an impressive employment of common law jurisprudential techniques in order to precisely avoid the substantive merits of the basic moral issue: Is California’s three-strikes law unjust? A different interpretation points out that, as the apex of the federal appellate judiciary, and as the supreme constitutional court in the land, as well as being responsible for the elaboration of judicial doctrine relevant to the application of federal legal provisions (including those of the US Constitution), the Supreme Court must ensure that reasons relevant to the specific character of the American legal system – most particularly, those reasons relevant to a common law system of constitutional interpretation carried out by courts – are the decisive reasons in its decisions. But on neither interpretation is the opinion in Lockyer anything remotely akin to what our public reason theories would lead us to expect. It is distinctly not an exemplar of public reason; nor is it a representative of the people’s fundamental moral-political principles; nor can ordinary people understand it, let alone understand it as an exemplar or representative of the public reason they share in common with fellow citizens. It is, I would nevertheless submit, representative of the majority of the work product of the Supreme Court, and even more so that of appellate courts underneath it. Consider a long series of cases over forty years concerning how to secure the electoral equality of all citizens, from the redistricting revolution inaugurated in 1962 by Baker v. Carr42 to the 2004 term’s Vieth 38 39 40 41 42

Lockyer, p. 72. Lockyer, p. 73. Lockyer, p. 73. Lockyer, p. 75. Baker v. Carr, 369 U.S. 186 (1962).

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v. Jubelirer.43 Here we witness again the general predominance of legal principles over moral-political principles – even though voting equality must surely be considered as a central matter of our public reason applied to constitutional essentials. Rather than manifest discussions about how the principle of political equality applies to questions about the relative voting power of citizens across electoral districts with significantly different sizes, the court has focused on insulated and institutionally specific concerns with standing, jurisdiction, and, above all, justiciability, hence the overwhelming emphasis on apparently strictly juridical concerns: whether various proposed voting districts and questions about gerrymandering send the court into a “political thicket,” as Justice Felix Frankfurter asserted in 1946 in Colegrove v. Green,44 if redistricting in general raises unfortunately “nonjusticiable political questions,” if court decisions would require judicially indiscernible and unmanageable standards, and so on. In fact, Justice William Brennan’s opinion in Baker, the case inaugurating the redistricting revolution, did not even go to the merits of the claim concerning the vast disproportionality of the Tennessee electoral districts, content rather to dwell on legalistic questions of jurisdiction, standing, and justiciability. There is no surprise here, since in order to intervene the court had to overcome two obstacles given its common law methods. First, the extant doctrine of “nonjusticiable political questions” announced and followed since the 1849 Supreme Court case of Luther v. Borden45 had to be clarified and brought up to date to see whether it applied to state legislative districting. Second, any intervention had to overcome the directly contrary 1946 precedent in Colegrove, holding that courts should not wade into such a “political thicket.” This was achieved in Baker by claiming that what had been previously taken to be Colegrove’s doctrine was actually mere obiter dicta. Justice Potter Stewart’s concurring opinion in Baker simply underlines the claim that the court’s holding concerned only issues of jurisdiction, standing, and justiciability. The long line of redistricting cases cannot fairly be read, I submit, as exemplifying the use of public reason and fundamental political principles, but rather as grounded in welldeveloped juridical principles appropriate to the Supreme Court’s role in an appellate court hierarchy.

43 44 45

Vieth et al. v. Jubelirer, 541 U.S. 267 (2004). Colegrove v. Green, 328 U.S. 549 (1946). Luther v. Borden, 48 U.S. 1 (1849).

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It is important to stress here that the claim is not categorical. I am not arguing here that the Supreme Court, in exercising its power of judicial review, always avoids speaking directly to the substance of significant moral controversies. Indeed, on the same day that it announced the decision in Lockyer, the court also published a decision in another California three-strikes punishment case, Ewing v. California46 that did indeed grapple directly with basic moral-political principles governing the justice of criminal punishment. Yet, even with Ewing defenders of public reason cannot take much comfort, since the decision was not supported even by a majority opinion, but rather by three different opinions that each expressed different and incompatible moral-political principles – hardly a shining example for the ideal of an overlapping consensus on constitutional fundamentals. No more do I wish to claim that such court interventions never have the beneficial educative and deliberative effects on wide public debates claimed. The opposite is indeed sometimes the case. Consider the 1997 cases Washington v. Glucksberg47 and Vacco v. Quill,48 where the court refused to ban state laws outlawing physician-assisted suicide. Chief Justice William Rehnquist’s opinions in the cases, especially in Vacco, directly engaged in serious and difficult considerations of the substantive merits of the briefs presented by those both opposed to and in support of such state laws. And the other justices in their various concurrences in the unanimous decision, further considered the twists and turns of diverse considerations, most of which are focused largely on the difficult moral issues involved, rather than strictly legal considerations. They were supported in this by a remarkable paragon of public use of public reason in Rawls’s sense: an amicus brief filed by seven of the most famous English-language moral philosophers – including Rawls himself – that was subsequently also published as “Assisted Suicide: The Philosophers’ Brief.”49 Thus the judicial decisions, in concert with “The Philosophers’ Brief,” were in this case clearly resting on principled moral arguments couched in a public reason standing free of comprehensive doctrines, and hence accessible and acceptable to many US citizens. Without exhaustive analysis of a full data set, I cannot say exactly how representative such lines of cases are. 46 47 48 49

Ewing v. California, 583 U.S. 11 (2003). Washington v. Glucksberg, 521 U.S. 702 (1997). Vacco v. Quill, 521 U.S. 793 (1997). Ronald Dworkin, et al., “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books, 44 5 (1997), 41–47.

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My sense is, however, that they are quite a bit more the exception rather than the rule. The same patterns have continued over the last decade. For every counterexample case to my thesis where public reason appears to play a leading role – for example, 2015’s Obergefell v. Hodges50 concerning gay marriage – there are many more prominent cases of constitutional review decided on the basis of juristic reasons – for example, 2013’s Shelby County v. Holder51 concerning electoral procedures. On a fair reading, it is hard to dispute that the reasoning in Obergefell – the case holding that the right of marriage may not be denied to same-sex couples – was based in the content of American public reason and could be understood by fellow citizens with fundamental disagreements as such. Not only were matters of fundamental liberty and equality facially involved and relatively clearly discussed as such in majority opinion, but there was also a substantive colloquy between the controlling and dissenting opinions over the democratic credentials of and correct limitations of judicial review itself. But this is not, I would suggest, characteristic of the main work product of the court, even in the 10–15 percent of constitutional review cases it decides each term. The great majority of landmark constitutional cases are rather decided on the basis of juristic concerns and are presented in a legalistic language. Thus the hotly disputed 2010 decision of Citizens United v. Federal Elections Commission52 – the case that overturned legislation limiting contributions from corporations and unions to political candidates’ campaigns – was not based on moral-political reasons concerning the entailments of notions of fundamental political fairness, acceptable wealth inequalities, and basic liberties of free expression. The work of the majority opinion – and of the concurring and dissenting opinions – was almost entirely focused on battling over the correct holding of past precedents, the putative rationales of those precedents, whether they should have stare decisis effects, the proper application of the judicial doctrine of “strict scrutiny,” meta-judicial doctrines of “judicial restraint” and deference to the legislature, whether the court manipulated its rules of presentation to reach a broader holding than warranted by the incident case, and so on. Remarkably, the decision was falsely but widely understood by the actual public as turning on an 50 51 52

Obergefell v. Hodges, 576 U.S. ____ (2015). Shelby County v. Holder, 570 U.S. 529 (2013). Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010).

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entirely novel judicial doctrine that corporations could be understood as legal persons. For legal elites, of course, a broad concept of legal personhood is distinctly venerable, not novel. So much for the claims that the reasoning of the court is an exemplar of public reason and that it should be seen as an exemplar of public reason. One might object that I have presented a one-sided picture of the US Supreme Court’s work product and, further, have cherry-picked cases in support of that picture. Indeed I have not presented a dispositive, complete analysis here of the entire constitution-interpreting work product of that body, nor do I have a database of all the relevant cases coded for statistical analysis. But I have indicated the disanalogies between juridical and public reason in a large and diverse set of high-profile cases. Even if we can find analogies in a few cases, it seems a few exceptions prove the rule. At the end of the day, my appeal is to the reader, and especially to a fair and unblinkered reading of the actual opinions and the specific character of the controlling reasons therein – I think one will fairly find there the dominance of juridical over philosophical reasons.

IV Institutional Determinants of Legalism in US Juridical Discourse The upshot is that we should be wary of the seductions of the public reason strategy for ameliorating the tension between democracy and judicial review. Indeed, the strategy is correct to point to the Supreme Court as an exemplar of the use of (particular kinds of) reasons in making its decisions. Further, it is correct to point out that the court is rather scrupulous about obeying the content restrictions of public reason concerning comprehensive doctrines: It does not refer in its justifications to our God-given rights, nor to expectations about salvation, nor to the superiority of specific forms of the good life over others, nor to the greatest happiness principle, etc. Furthermore, it often obeys public reason’s content restrictions to only matters of constitutional essentials, not devolving into policy development (though Shelby County shows that this restriction is not always scrupulously obeyed by the court). But, I believe, a balanced assessment of the court’s actual work product shows that the decisive reasons employed do not conform to the content requirements of public reason. In the main, they do not refer to, nor decisively rely upon, the substantive content of those fundamental moralpolitical principles in our overlapping consensus that define and shape just terms of consociation. Almost all the case examples show that the

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language of reasons employed by judges is rather a specifically juristic language. Supreme Court judges are rightly engrossed with the technicalia of the rule of law, not with arguments about fundamental moral and political principles. By the same token, juristic discourse is not well tailored to the kind of widely dispersed democratic deliberation and debate about the proper terms of mutual consociation that selfgoverning citizens can and ought to engage in as mutual citizens. It is no accident of history or practice that there is this disanalogy between the reasons Supreme Court judges employ and the reasons public reason theorists suppose as underwriting the democratic legitimacy of judicial review. For juristic discourse, at least in the United States, is a language of reasons tailored to maintaining the rule of law within a complex court system with constitutional review performed throughout the regular appellate court hierarchy. It is worth considering briefly the specific legal and institutional determinants of the predominance of legalistic reasoning in US constitutional adjudication. I have in mind here three features that constrain juridical reasoning and prevent it from exemplifying, representing, or communicating in the language of public reason: (1) judicial review in the United States is only effected through particular cases, (2) by a court that is simultaneously a constitutional court, at the apex of the national appellate system, and with significant authority within a complicated federalist division of political and judicial authority, and (3) it is carried out through common law methods of adjudication. First, the “cases and controversies” requirement not only has deleterious consequences for moral epistemology: no ability to initiate principled interventions, limited information about all affected, and solution sets constrained by the need to resolve the incident case. The restriction to concrete review also explains the court’s predominant focus on legal principles concerning issues such as standing, jurisdiction, ripeness, mootness, legal remediability, etc. Second, because the Supreme Court must wear many institutional hats at once, it needs juristic principles governing its authority and jurisdiction in order to rationally manage the employment of such diverse powers. The development and employment of complex doctrinal law about the use of judicial power – concerning, for instance, the scope and limits of “state sovereignty” vis-à-vis the federal government, managing disagreements between federal appellate courts, and regulating judicial oversight of the other branches of the federal government – unsurprisingly often assume more importance in case decisions than substantive moral-political considerations, even

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when those cases facially raise such issues of fundamental justice. Third, the Supreme Court’s preoccupation with specifically juridical issues – such as the weight and content of precedents, the incidence of the principle of stare decisis in different kinds of cases (e.g., in statutory vs. constitutional interpretation), distinguishability, the standing and content of judicial doctrines, methods for distinguishing between mere dicta and holdings that add to precedent and shape doctrine, interpretive canons of construction, and so on – are basic features of common law methods of adjudication. While such specifically juridical concerns may be considered as essentially supportive of the core values of the rule of law, it must be acknowledged that common law methods significantly impede the abilities of the justices to act either as exemplars of public reasoning about fundamental principle or as impartial representatives employing the people’s principles. There may well be other legal and institutional determinants of the predominance of the use of legalistic over moral-political reasoning in the Supreme Court’s judicial review cases. All I have sought to do here is point out three general features of the court’s actual institutional location and adjudicative practices that, I think, go a fair way toward explaining why we should generally expect to find significant disanalogies between actual Supreme Court discourse and public reason.

V Beyond America: Could International Courts Be Public Reasoners? This then raises the question of whether the public reason analogy strategy might be more convincing in alternative systems of judicial review. Could a Kelsen-style constitutional court,53 widely adopted in European constitutional democracies – namely, a court tasked with direct “abstract review” of ordinary law independent of a concrete case, one specialized only in constitutional review and without other significant appellate duties, and perhaps even adjudicating without the legalistic requirements of common law jurisprudence – better exemplify public reason and become the vaunted representatives of the people’s fundamental principles of public reason? Or might we be better off with a system of constitutional legislation and elaboration that more directly involves democratic citizens themselves and their accountable agents in 53

Hans Kelsen, “Judicial Review of Legislation. A Comparative Study of the Austrian and the American Constitution,” Journal of Politics, 4 2 (1942), 183–200.

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public reasoning processes specially designed for updating constitutional codes?54 However, rather than pursuing further the problems of institutional design within established nation-states, I would like to turn briefly to the question of whether the considerations of this chapter have any bearing on international courts. Notably, the public reason strategy has picked up some scholarly momentum recently in the context of understanding courts above the level of the nation-state.55 In a sense, this is not surprising, since such courts are under perhaps even more stringent legitimation demands than national constitutional courts. While they are not clearly the institutional creations of democratically legitimated constitutions – it is difficult to even speak of such constitutions above the level of the nation-state, where the closest we have are intergovernmental treaties between nations – they have nevertheless assumed perhaps even greater powers for constitutional authorship than national constitutional courts, perhaps even authoring the very “constitutional orders” they are supposed to derive their authority from.56 With no clear democratic constitutional legislators at the transnational and international levels, but with insistent pressures for legal structures within which to carry out conflict resolution and regulation, courts above the nation-state have simultaneously become active developers of law and foci of concern about their very authority to take on such development.57 While at the nation-state level of liberal democracies, constitutions have traditionally specified both democratic political institutions and individual liberty rights, at the international level there is comparatively little treaty language structuring democracy but a plethora of treaties spelling out human rights. Hence the liberal elements of liberal democracy have 54 55

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Zurn, Deliberative Democracy and the Institutions of Judicial Review, pp. 253–341. E.g., Ernst-Ulrich Petersmann, “From State-Centered towards Constitutional ‘Public Reason’ in Modern International Economic Law,” in Giorgio Bongiovanni, Giovanni Sartor, and Chiara Valentini (eds.), Reasonableness and Law (New York: Springer Publishing Co., 2009), pp. 421–458; Wojciech Sadurski, “Supranational Public Reason: On Legitimacy of Supranational Norm-Producing Authorities,” Global Constitutionalism, 4 3 (2015), 396–427. See, e.g., some of the striking formulations concerning the self-legitimation of courts in the context of transnational constitutionalism in Chris Thornhill, “Contemporary Constitutionalism and the Dialectic of Constituent Power,” Global Constitutionalism, 1 3 (2012), 369–404. Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, “From Public International to International Public Law: Translating World Public Opinion into International Public Authority,” The European Journal of International Law, 28 1 (2017) pp. 115–145.

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become much more prominent than the democratic elements above the level of the nation-state: Compare the successes of the human rights movement to the failures of transnational democracy. Perhaps, then, it is no accident that intriguing recent scholarship applying the public reason strategy to international courts has basically given up on the attempt to understand public reason as a specifically democratic legitimating device for such courts. Consider, for example, Wojciech Sadurski’s 2015 claims: “In the world of plural sites of constitutionalism we need to be careful not to insist on democratic conditions of legitimacy everywhere.”58 And, “the legitimacy of supranational authorities is often grounded on the type of arguments provided by supranational entities, and in particular, their appeal to public reason – a legitimacy-conferring device well suited to supranational authorities.”59 Here the public reason strategy is centrally identified with courts as protectors of individual rights and positive legislators of human rights law: Courts give reasons for their decisions, and if these reasons are based in public reason, rather than power politics or sectarian ideologies, then courts give reasons that all ought to be able to accept. The public reason strategy need take no detour through the ostensibly democratic notions of exemplifying or representing the people’s reason. Public reason legitimates supranational courts on its own, because the reasons such courts provide are “reasonably acceptable to all.”60 By way of ending this chapter on a note for future research, let me suggest a comparative strategy for research that may shed light on judicial discourse and its institutional determinants.61 Specifically, the idea would be to use the institutional differences between three ideal-typical high court systems – US Supreme Court–style systems, Kelsenian constitutional courts, and international courts – to probe the degree to which we can detect, in the actual work product of the different courts, those disanalogies between public reason and judicial reason that this paper has argued exist. Furthermore, does that content analysis of court discourse vindicate or vitiate the three hypothesized institutional determinants? On the first register, all three systems are courts, and courts decide cases rather than initiate constitutional legislation. Does that mean that the language employed in all three systems will exhibit some of the same 58 59 60 61

Sadurski, “Supranational Public Reason,” 403. Ibid., 425 (emphasis in original). Ibid., 406. My thanks to an anonymous reviewer for very helpful suggestions toward reworking this section.

c o ns tit u t i o n a l i n t er p r e ta tio n a n d p u b l i c re a s o n 347

disadvantages as the US system with its case and controversy restrictions and its attendant juridical focus on issues of standing, presentment, and court authority? Or might powers for abstract review of ordinary law on the part of both Kelsenian courts and some international tribunals mitigate some of the predominance of juristic reason over public reason? Or further, might the newly felt freedom of some international courts to issue advisory opinions push them to act more like constitutional legislators responding to controversies arising in the broader public spheres and employing de novo moral-political reasoning about constitutional essentials, rather than maintaining the traditionally reserved, reactive, and specialized language of jurists? And are there significant differences between the epistemic capacities of the three ideal court systems, especially concerning the limitations detected in the US system: waiting for suitable case vehicles and legal entrepreneurs to act,62 limited and distorted information with respect to all affected parties, or solution sets limited by settling the incident disputes? Second, in what ways analogous to the US Supreme Court might Kelsenian and supranational courts need to positively develop and scrupulously attend to specifically juridical doctrine concerned with managing their own authority relations to other national and international authorities, agencies, and courts? While Kelsenian courts are not, and supranational courts need not be, at the apex of a diffuse system of judicial review, they will nevertheless be quite intertwined with other courts and authorities. To what extent do we see the development of complex and technical doctrines about the relative scope and limits of judicial power, and about the relevant competences of the other involved agencies? Do considerations about, say, the so-called competence competence, direct and indirect effects, and the margin of appreciation predominate over first-order substantive moral-political reasoning in the argot required by public reason? The third research area would consider whether we find differences in the incidence of actual public reason reasoning between courts employing common law and civil law techniques. For across all three ideal types of courts, we should expect jurists to devote quite a bit of their actual reasoning to matters concerned with correctly identifying and applying binding law. To be sure, there are significant disanalogies between the 62

See Karen Alter’s interesting work on the politics of international litigation, especially her focus on human rights activists and norm entrepreneurs, in Karen Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton: Princeton University Press, 2014).

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common law methods used in the United States and the various judicial methods adopted by Kelsenian courts and various supranational tribunals. I would hypothesize that, since the problems they all face are sufficiently similar at a general level, we would find a heavy preponderance of precedential reasoning over that based in the normative substance of fundamental principles. Turning only to international courts, it is true that there is no official doctrine of stare decisis in international law. Yet courts still take precedents into consideration in a serious way and have been developing a series of juristic techniques to regularize this.63 And supranational tribunals face straightforwardly the same central problems of identifying and interpreting binding legal texts – from treaties to regulations – that domestic courts do. The problems of managing fidelity to binding legal texts are perhaps even more complicated concerning international and transnational law, and so courts will need to develop legalistic methods of addressing those. For instance, the general problem of adjudicating conflicts between apparently relevant and binding but nevertheless conflicting legal standards has given rise to the increasing use and standardization of techniques like proportionality analysis across jurisdictions and courts. Further, the absence of a clear global constitutional text, combined with the desire to give erga omnes effect to various human rights norms, has in turn given rise to the legal complexities of identifying, specifying, and delimiting jus cogens norms. This last problem looks sufficiently analogous to the domestic problem of identifying the overlapping consensus that theory tells us forms the basis of public reason. But it is not clear that juristic techniques for such identification are really the kind of first-order substantive normative reasoning that deliberative democrats and public reason liberals idealize as the core of the public use of reason. Research would need to attend, as in the domestic context, to the actual work product of the three types of courts to confirm or refute such hypotheses. These three areas – case-based reasoning, managing authority relations, and common law versus civil law techniques – are worth further research across the differential data set provided by the three different types of courts to determine whether they do or do not serve as institutional determinants of the disanalogies between judicial and public reason. This is particularly so for those concerned with employing the public reason strategy to legitimize supranational courts. For that 63

Gilbert Guillaume, “The Use of Precedent by International Judges and Arbitrators,” Journal of International Dispute Settlement, 2 1 (2011), 5–23.

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strategy invites us to analogize judicial reasoning with reasoning about constitutional essentials based in the substantive principles of public reason, and to thereby accept the legitimacy of constitutional court legislation as based in considerations that are either the reasons of the demos or that all could not reasonably reject. I have claimed that, no matter how seductive such a strategy may be in principle – focusing on the need to rule through reasons, on the evident use of reasons in the exercise of judicial power, and with the desire to save the legitimacy of courts from charges of usurpation or paternalistic guardianship – the strategy needs to be held to account empirically, in the light of the actual work product of judges. My argument in this chapter has been that when we do so investigate the work product of the Supreme Court of the United States, we can see that the analogy to public reason is, however seductive, largely (but not always) false. The research strategy proposed in this closing section is devoted to discovering whether we find, when investigating the work product of Kelsenian and international courts, that the public reason strategy applied there is also based on similarly seductive but false analogies.

INDEX

Abi-Saab, Georges, 293 Ackerman, Bruce, 330, 334–5 Alexy, Robert, 189 al-Sanhūrī, ʿAbd al-Razzāq, 134 Amicus curiae briefs in United States, 340 in WTO DSS, 307–10 Anderson, Elizabeth, 228 Appellate Body (AB). See World Trade Organization Dispute Settlement System (WTO DSS) Approaches to public reason in courts “classical liberal approach”, 24–7 (See also “Classical liberal approach” to public reason) constitutional fidelity (See Constitutional fidelity) constitutional public reason (CPR) (See Constitutional public reason (CPR)) cosmopolitan understanding of public reason, 16, 40, 197–8, 199–200 “deliberative approach”, 30–4 (See also “Deliberative approach” to public reason) diversity in, 41–2 “exemplar of public reason”, 327–31 constitutional courts, role of, 329–31 overlapping consensus and, 328 Rawls and, 2, 38, 75, 93, 225, 323, 335 Islamic law and (See Islamic law, public reason and) judicial review and (See Judicial review, public reason and)

legitimacy and, 6–11 “liberal approach”, 13–16 (See also “Liberal approach” to public reason) “natural law approach”, 27–30 (See also “Natural law approach” to public reason) normative approach generally, 3 overview, xii–xiii, 11–12 “political liberal approach”, 16–24 (See also “Political liberal approach” to public reason) “public reason as justification vis-àvis broader public approach”, 34–5, 41 statist or state-centered understanding of public reason, 16, 316 supranational understanding of public reason, 233, 346 Austin, John, 205 Austria freedom of press in, 277 freedom of speech in, 276–7 Balancing tests. See Proportionality analysis Barak, Aharon, 189–90, 191 Barrett, Jacob, xix–xx. See also Social reform, objections to public reason and Basic human goods, 29, 41 Becker, Gary, 205–6, 208 Beitz, Charles, 261–2 Bentham, Jeremy, 205, 207, 208 Benvenisti, Eyal, 248 Besson, Samantha, 270

350

in de x Bicameralism, 119 Bicchieri, Cristina, 212, 215, 219–23, 224, 227 Bickel, Alexander, 331–2, 333 Bosnia and Herzegovina, electoral rights in, 238–9 Bowles, Samuel, 215 Bown, Chad P., 318 Buchanan, Allen, 260 Burkina Faso, female genital cutting in, 217–18 Campaign finance, 341–2 Canada Bill of Rights, 197 Charter of Rights and Freedoms, 184, 197 Cases and controversies requirement in United States, 343, 346–7 Central ranges of application, 102–4 Christian theology, 145 Civic duty, reasonableness as, 70–3 Civil law, 347–8 “Classical liberal approach” to public reason, 24–7 convergence view and, 25–6, 36–7, 40 courts and, 27 individual rights and, 40 justification and, 25–7 libertarianism versus, 24–5 overlapping consensus and, 25 pluralism and, 25, 26–7 public reason liberalism, xix–xx, 24, 25–6, 225 Climate change, public reason and, 304–5 Colander, David, 228 Colonialism, 123 Common law, 343, 344, 347–8 Conception of public reason ideal of public reason (See Ideal of public reason) idea of public reason (See Idea of public reason) Conscientious objection, 237 Consensus view of public reason

351

constitutional public reason (CPR) and, 80–1 convergence view and, 37 full consensus view, 7–8 overlapping consensus (See Overlapping consensus) overview, 36–7 strong consensus view, 7–8, 80–1 weak consensus view, 7–8, 80–1 Constitutional amendment process, 324 Constitutional courts necessity of, 324 public reason in case-based reasoning and, 346–7 common law versus civil law, 347–8 comparison with international courts and US courts, 346–9 managing authority relations and, 347 overview, 11–12, 344 role of, 329–31 Constitutional fidelity fixture, constitutional pact as centrality of reason, 98–9 central ranges of application, 102–4 Goldilocks dilemma and, 102–4 incorporation of constitutional substance, 100 overview, 95, 96, 113 positive legal code, constitution as, 101–2 procedural pact, constitution as, 99–100 supreme court as referee, 105 within larger context of public reason, 91–2 liberal principle of legitimacy (LPL), 95, 96–8, 113, 114 overview, xv–xvi, 90–1 project, constitutional pact as “criterion of legitimacy based on reciprocity” (CLBR), 108–10, 113–14 family of liberal justice concepts and, 106–8

352

in dex

Constitutional fidelity (cont.) overview, 95–6, 106 temporal change and, 111–12, 114 stricter standard for judges than for citizens, 92–5 Constitutionalism deliberative constitutionalism, 33 double function of constitutions in, 156–7 global constitutionalism, 143–4, 165, 299–300, 348 judicial minimalism, xv, 66 living constitutionalism, xv, 42, 66 originalism, xv, 42, 66 original public meaning originalism, 42 pragmatism, xv, 66 procedural aspects of constitutions in, 156 public reason–based constitutionalism fact of reasonable disagreement, 151–3 fundamental status of free and equal persons, 150 micro-macro problem, 153–5 overview, xvii–xviii, 144, 149–50 substance versus procedure, 153 what might be reasonably accepted versus what cannot be reasonably rejected, 155–6 rights adjudication, implications for, 158–60 substantive aspects of constitutions in, 156–7 unconstitutional constitutional norms and, 160–1 Constitutional pluralism, 165 Constitutional public reason (CPR) centrality of reason in, 76–7 consensus view and, 80–1 convergence view and, 80–1 Dworkinian moral reading as alternative to, 77–80 importance of, 66–7 indeterminacy objection, 82–4 methods for lessening, 67 responses to, 85–7

scholarly attention to, 82–3 shallowness of public reason and, 84 stand-off and, 85, 86 judicial review and, 74 legitimacy and, 87 limited power of government and, 74–5 non-public reasons and, 85–6, 87 overlapping consensus and, 88 overview, xv, 67–8, 88–9 Rawls and, 66, 67, 68–9, 77 reasonable pluralism and, 85–6 strong consensus view and, 80–1 weak consensus view and, 80–1 Conventionalism, 147–9 Convergence view of public reason “classical liberal approach” and, 25–6, 36–7, 40 consensus view and, 37 constitutional public reason (CPR) and, 80–1 overview, 8 Cosmopolitan understanding of public reason, 16, 40, 197–8, 199–200 CPR. See Constitutional public reason (CPR) “Criterion of legitimacy based on reciprocity” (CLBR), 108–10, 113–14 Critique of Pure Reason (Kant), 164 Cruel and unusual punishment, 337–8, 340 Czech Republic Roma children in public schools in, 236 special education in, 236 Decentralized sovereignty, 165 Declaration of Independence, 161–3 Deep political liberalism, 20 Definition of public reason, 3–6 normative approach, 4–5 overview, xii–xiii, 2 public component, 3–4, 5–6 shared values and, 4–5 “Deliberative approach” to public reason, 30–4

in de x courts and, 33–4, 40–1 criticism of public reason ideals, 31–2 in ECtHR, 34 justification and, 30–1 other approaches compared, 36, 37 pluralism and, 32 “political liberal approach” compared, 30–1, 32 Rawls and, 30 Deliberative constitutionalism, 33 Deliberative public reason in WTO DSS custodian of public deliberation, WTO as, 310–13 overview, 305–6 promotion of, 306–10 Democracy, role of public reason in, 68–70 Democratic voluntarism, 145–7 Den Otter, Ronald C., xv, 38. See also Constitutional public reason (CPR) Devlin, Patrick, 247, 248 Dignity, 194 Dimant, Eugen, 215 Divorce in Islamic law, 133–4, 137–9 Djibouti, female genital cutting in, 217–18 Doctrine of Double Effect (DDE), 50–2, 58 Domestic violence laws, 214–15 Double function of constitutions, 156–7 Drug laws, 217 Drunk driving laws, 214–15 Dualist democracy, 119–20, 330 Due process of law, 119 Duty of public reason in non-ideal conditions, 118–21 positive-orientation ideal, 11 reasonableness as civic duty, 70–3 reason-constraining ideal, 11 reasoning from conjecture, 125–6 stricter standard for judges than for citizens, 92–5 Dworkin, Ronald conventionalism and, 148 on judges, 94

353 “liberal approach” and, 13–14 moral reading and, 77–80 “natural law approach” and, 29 on public reason, 333, 335 reasonableness as civic duty and, 70

ECHR. See European Convention on Human Rights (ECHR) ECtHR. See European Court of Human Rights (ECtHR) Egypt Constitution, 136–7 Islamic law in, 136–7 Eisgruber, Christopher, xxv, 323, 331–3, 334, 335 Electoral rights, 238–9, 338–9, 341 Ellickson, Robert C., 206 European consensus, 148–9 European Convention on Human Rights (ECHR) absolute versus qualified rights, 231–2 conscientious objection and, 237 criminalization of homosexuality and, 241, 250–2 denial of access to child based on religion and, 236 electoral rights and, 238–9 freedom of speech and, 237–8 gays in military and, 234, 235 obscene paintings and, 250, 251–2 Right to Justification Theory (RTJ) and, 270, 272 Roma children in public schools and, 236 special education and, 236 totalitarian symbols and, 244 trusteeship model of rights and, 198–9 European Court of Human Rights (ECtHR) Bayatyan v. Armenia (2011), 237 conventionalism and, 148–9 “deliberative approach” in, 34 D.H. and Others v. Czech Republic (2007), 236 Dudgeon v. United Kingdom (1981), 243–4, 250–2

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(ECtHR) (cont.) Islamic law and, 139–41 legitimate aim analysis step of proportionality analysis in overview, 231–3 proportionality sensu stricto analysis step and, 238–9 Leyla Sahin v. Turkey (2005), 278–9 Lingens v. Austria (1986), 277 Müller v. Switzerland (1988), 250–2 necessity analysis step of proportionality analysis in, 239–46 criminalization of homosexuality and, 241 deference and, 244–5 desirability and, 239–40 indispensability and, 239–40 overview, 232–3, 245–6, 253–5 “pressing social need” and, 240–1, 245, 254–5 proportionality sensu stricto analysis step and, 241–6 totalitarian symbols and, 244 Norris v. Ireland (1988), 241, 249–51 Oberschilk v. Austria (1997), 276–7 overview, xxi–xxii, 253–5 Pernicek v. Switzerland (2013), 237–8 proportionality sensu stricto analysis step of proportionality analysis in legitimate aim analysis step and, 238–9 necessity analysis step and, 241–6 overview, xxiv, 242–3 “protection of morals” exception in, 246–53 generally, 233 compatibility with public reason, 246 criminalization of homosexuality and, 250–2 descriptive versus normative morality, 248 first-order versus second-order morality, 246–8

lack of uniform concept of morality, 249–53 obscene paintings and, 250, 251–2 overview, 253, 255 positive versus critical morality, 248 possible permutations of morality, 248–9 public versus private morality, 246–8 Right to Justification Theory (RTJ) in, 276–9 (See also Right to Justification Theory (RTJ)) Sejdić & Finci v. Bosnia and Herzegovina (2009), 238–9 Smith and Grady v. United Kingdom (1999), 234–6 suitability analysis step of proportionality analysis in, 243 United Communist Party of Turkey and Others v. Turkey (2012), 278 Vajnai v. Hungary (2008), 244 validation of legislative aims in, 234–9 conscientious objection and, 237 denial of access to child based on religion and, 236 electoral rights and, 238–9 freedom of speech and, 237–8 gays in military and, 234–6 overview, 232, 239, 253 perfunctory nature of review, 234–9 Roma children in public schools and, 236 special education and, 236 Vojnity v. Hungary (2013), 236 Von Hannover v. Germany (2004), 277 WTO DSS compared, 319 Evolution of public reason, xi, 1–2 “Exemplar of public reason”, 327–31 constitutional courts, role of, 329–31 overlapping consensus and, 328 Rawls and, 2, 38, 75, 93, 225, 323, 335

in de x Fadel, Mohammad H., xvi–xvii, 137. See also Islamic law, public reason and Federalist Papers, 334 Female genital cutting, 217–18, 224 Fidelity. See Constitutional fidelity Fiduciary model of international courts, 40, 182–3 Finnis, John, 27–30, 38, 41 fiqh (muslim jurisprudence), 132–3 Flikschuh, Katrin, 173, 197–8 Forst, Rainer, xxiii, 10, 257, 258–64, 266, 267–75, 280. See also Right to Justification Theory (RTJ) Freedom of press, 277–8 Freedom of religion, 151, 236, 278–9, 336–7 Freedom of speech Right to Justification Theory (RTJ) and, 259, 276–7 totalitarian symbols, 244 validation of legislative aims and, 237–8 Freeman, Samuel, 69, 335 Free-standing concept of political justice, 115–16 Full consensus view of public reason, 7–8 Galligan, Denis, 213 Gardbaum, Stephen, 197 GATS general exceptions clauses, public reason and, 293–301. See also World Trade Organization Dispute Settlement System (WTO DSS) GATT general exceptions clauses, public reason and, 293–301. See also World Trade Organization Dispute Settlement System (WTO DSS) Gaus, Gerald F. See also Social reform, objections to public reason and “classical liberal approach” and, 24–7 on convergence view of public reason, 8, 10 on deep political liberalism, 20 “deliberative approach” and, 30

355

on overlapping consensus, 37 public reason liberalism and, xix–xx, 24, 25–6, 225 on role of courts, 38 on social reform and public reason, xix–xx, 228 Gay marriage conventionalism and, 147, 149 “natural law approach” and, 41 public reason and, 27, 341 in United States, 341 Germany Basic Law, 184, 192 dignity in, 194 freedom of press in, 277 Islamic law in, 139 liberty in, 192 life imprisonment in, 194 Gintis, Herbert, 215 Global constitutionalism, 143–4, 165, 299–300, 348 Goldilocks dilemma, 102–4 Gorsuch, Neil, 30 Greece, Islamic law in, 135 Greer, Steven, 231 Griffin, James, 260, 263, 266 Habermas, Jürgen, 31–3, 100, 112, 311 Haider, Jörg, 276–7 Hamilton, Alexander, 334 Han, David, 195 Hanafi school, 129, 132, 134 Hanbali school, 132 Hart, H. L. A., 82–3, 198, 248 Headscarves, Islamic law and, 140–1 Hellman, Deborah, 55–6 Hiebert, Janet, 197 Hobbes, Thomas, 205, 206 Homosexuality criminalization of, 241, 243–4, 250–2 gay marriage, conventionalism and, 147, 149 gays in military, 234–6 Hospitality, 165 Human rights ethical account of, 257–8, 259–60 political account of, 257–8, 259–60, 261–2

356

in de x

Human rights (cont.) reciprocity-based rights, 264 Right to Justification Theory (RTJ) in context of, 259–63 (See also Right to Justification Theory (RTJ)) status-based rights, 264 Hungary denial of access to child based on religion in, 236 freedom of religion in, 236 freedom of speech in, 244 totalitarian symbols in, 244 Hydraulic effect, 194–5 Ideal of public reason courts and, 6–11, 20, 23–4, 25–6, 32, 37–9 inclusive version, 32, 36 positive-oriented version, 11 reason-constraining version, 8–9, 11 Idea of public reason consensus view constitutional public reason (CPR) and, 80–1 convergence view and, 37 full consensus view, 7–8 overlapping consensus (See Overlapping consensus) overview, 36–7 strong consensus view, 7–8, 80–1 weak consensus view, 7–8, 80–1 convergence view “classical liberal approach” and, 25–6, 36–7, 40 consensus view and, 37 constitutional public reason (CPR) and, 80–1 overview, 8 de facto versus ideal acceptance, 9 reasonable disagreement, 11 reasonable pluralism and, 9, 37 Indeterminacy objection to constitutional public reason (CPR), 82–4 overview, 67, 75–6 responses to, 85–7 scholarly attention to, 82–3

shallowness of public reason and, 84 stand-off and, 85, 86 India All India Muslim Personal Law Board, 139 caste system in, 214 Code of Criminal Procedure, 138 Islamic law in, 135, 137–9 Muslim Personal Law Act, 138 Muslim Women (Protection of Rights on Divorce) Act, 138 International courts fiduciary model, 40, 182–3 growth in, 284 justification and, 286–8 legitimacy of consent as source of, 281–2, 284–6 “legitimacy gap”, 284–6 public justification as source of, 281, 287, 291–2 public reason as source of, 286–9 public reason in applicability of, 345–6 case-based reasoning and, 346–7 common law versus civil law, 347–8 comparison with constitutional courts and US courts, 346–9 democracy, compatibility with, 346 managing authority relations and, 347 overview, 324, 344–5 states and, 285–6 traditional model, 284–6 trusteeship model, xviii–xix, 166, 180–3, 186, 195–7, 198–9 Iran, Islamic law in, 135 Ireland, criminalization of homosexuality in, 241, 252 Islamic law, public reason and. See also specific country application of public reason, 124 colonialism and, 123 controversial metaphysical doctrines, inapplicability of, 130 difficulties in reconciling, 122–3 divorce in, 133–4, 137–9

in de x ECtHR and, 139–41 ethics, 127 fiqh (muslim jurisprudence), 132–3 Hanafi school, 129, 132, 134 Hanbali school, 132 headscarves and, 140–1 incorporation of Islamic law into national legal systems, 117–18 intersection with political liberalism, 123–4 jurisdictional limitations, 129 Koran and, 138–9 Maliki school, 132, 134 in modern courts, 135–41 obligations to man versus obligations to God, 128 overlapping consensus and, 116, 131–2, 133 overview, xvi–xvii, 116–18, 141–2 pluralism in, 130–1 political content of, 125, 136 reasoning from conjecture and, 125–6 ritual law versus transactional law, 128–9 scientific versus dogmatic nature of, 134 secular disputes, 129 Shafiʿi school, 132 Sunnī tradition, 127, 132 theological/metaphysical versus political, 126–30, 136 Israel, Islamic law in, 135 Italy crucifixes in public schools in, 151 freedom of religion in, 151 Judicial minimalism, xv, 66 Judicial reasoning, public reason in. See Approaches to public reason in courts Judicial review, public reason and constitutional amendment and, 324 constitutional courts, necessity of, 324 constitutional public reason (CPR) and, 74 “exemplar of public reason”, 327–31

357

constitutional courts, role of, 329–31 overlapping consensus and, 328 Rawls and, 2, 38, 75, 93, 225, 323, 335 in Kantian constitutional justice, 177–83 collective power of individuals compared, 179 delegation theory and, 178, 181–2 fiduciary model, 182–3 new commonwealth model of constitutionalism compared, 179 overview, 166 trusteeship model, 166, 180–3, 195–7 legislative motivation and, 45–7 new positive law developed by, 325 normative theory of, 74 overview, xxiv–xxvi, 74, 323–4 procedural review, 33–4 proportionality analysis (See Proportionality analysis) representative function of, 331–3, 334 scholarly views on, 333–5 semi-procedural review, 33–4 substantive review, 14, 297–8, 310–11 tension with other judicial precepts, 325 public reason as remedy, 325–7 United States, lack of public reason in, 335–42 jurisdiction versus, 337 nonjusticiable political questions versus, 338–9 overview, 323–4 standing versus, 336–7 stare decisis versus, 341–2 technical legal reasoning versus, 336–42 “Justice as fairness”, 20, 327 Justice as Fairness (Rawls), 91 Justification. See Right to Justification Theory (RTJ) Justification effect, 220–2

358

ind ex

Kahan, Dan M., 214, 227 Kant, Immanuel. See also specific work “deliberative approach” and, 31 on hospitality, 165 Kantian constitutional justice (See Kantian constitutional justice) moral doctrine and, 13–14 on public reason, 3 Kantian constitutional justice absolute rights in, 194 basic elements of, 167–8 freedom versus coercion in, 165–6, 170–3 innate freedom in, 168, 171, 176, 178, 185–6, 198 internal duty of rightful honor in, 167, 168, 171–2, 175–6, 185, 198 judicial review in, 177–83 collective power of individuals compared, 179 delegation theory and, 178, 181–2 fiduciary model, 182–3 new commonwealth model of constitutionalism compared, 179 overview, 166 trusteeship model, 166, 180–3, 195–7 multi-level architecture of right in, 166, 197–200 new constitutionalism and, 183–4 omnilateral lawmaking in, 170, 173–4 original contract in, 169–70, 174–5, 198–9 overview, xviii–xix, 164–7, 200 proportionality analysis in criticism of, 191–2 excluded reasons, 192–5 judicial supremacy and, 195–7 legitimate aim analysis step and, 187, 192–5 necessity analysis step and, 187–8 overview, 183–6 prima facie case, 186–7 proportionality sensu stricto analysis step and, 188–91 suitability analysis step and, 187

publicity in, 170 public right in, 169 qualified rights in, 166, 186–92 rightful condition in, 164–6, 172–4, 181, 198–200 rights as positive requirements of legality in, 174–7 right to life and, 176–7 slavery and, 176 state in, 166, 169–70, 173–4 Universal Principle of Right (UPR), xviii–xix, 167, 169 (See also specific topic) Kelsen, Hans, 198, 344, 346, 347–8, 349 Kenya, Islamic law in, 135 King, Martin Luther, Jr., 63–4 Kleinlein, Thomas, 318 Koran, 138–9 Kumm, Mattias. See also Normative theory of public reason on approaches to public reason, 37–8 “deliberative approach” and, 33 “liberal approach” and, 14, 15–16 normative theory of public reason and, xvii–xviii on proportionality analysis, 186 Right to Justification Theory (RTJ) and, xxiii–xxiv, 256–9, 263–6, 267–75, 280 (See also Right to Justification Theory (RTJ)) Kupers, Roland, 228 Kurkchiyan, Marina, 213 Langvatn, Silje A. See also Approaches to public reason in courts on approaches to public reason, xii–xiii on international courts, 287, 317 on legitimacy, 112 on Right to Justification Theory (RTJ), 257 Larmore, Charles, 202 Law and economics approach, 205–6 Least-restrictive-means (LRM) test, 14–16, 187–8, 243 Legal centralism coercion, role of, 205–7

in dex law and economics approach and, 205–6 moral-focused legal centralism, 207–8, 214 punishment-focused legal centralism, 204–7, 211, 214 Legalism in United States juridical discourse, 342–4 cases and controversies requirement as institutional determinant, 343, 346–7 common law as institutional determinant, 343, 344, 347–8 multiple functions of Supreme Court as institutional determinant, 343–4, 347 Legislative motivation, public reason and direct relevance of motivation and, 50, 53–9 indirect relevance of motivation and, 50, 59–61 intention versus motivation, 48–9 judicial review and, 45–7 legislative aims, xxi–xxii, 233, 234–9, 241, 246, 253 legislative intent, 234 mixed-motive cases and, 61–5 motivation as altering meaning or significance of action, 60 overview, xiii–xv, 45–7, 65 permissibility objection (See Permissibility objection to laws not motivated by public reason) predictive significance and, 60–1 race discrimination and, 54–7 conscious racism, 54, 57 harmless discrimination, 55–7 unconscious racism, 54–5 Legitimacy constitutional public reason (CPR) and, 87 “criterion of legitimacy based on reciprocity” (CLBR), 108–10, 113–14 of international courts consent as source of, 281–2, 284–6 legitimacy gap, 284–6

359

public justification as source of, 281, 287, 291–2 public reason as source of, 286–9 Kantian constitutional justice and, 192–5 legitimate aim analysis step of proportionality analysis (See Legitimate aim analysis step of proportionality analysis) liberal principle of legitimacy (LPL), 95, 96–8, 113, 114 overlapping consensus and, 328 public reason and international courts, as source of legitimacy for, 286–9 overview, 6–11, 281–2 Right to Justification Theory (RTJ) and in human rights context, 262–3 in proportionality analysis context, 265–6 Legitimate aim analysis step of proportionality analysis in ECtHR overview, 231–3 proportionality sensu stricto analysis step and, 238–9 in Kantian constitutional justice, 187 in “liberal” approach to public reason, 14–16 overview, 256 in WTO DSS climate change and, 304–5 custodian of public deliberation, WTO as, 310–13 explanatory paragraphs, 313–15 GATT/GATS general exceptions clauses, 293–301 within general exceptions clauses, 293–301 non-WTO law, references to, 294–6, 316–18 outside general exceptions clauses, 301–5 overview, 282–3, 290–1, 319–20 promotion of deliberative procedures, 306–10 Leib, Ethan, 182

360

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Lever, Annabelle, 274 Liao, Matthew, 58 “Liberal approach” to public reason, 13–16 moral doctrine requirement, 13–14 other approaches compared, 36, 37 presumption in favor of liberty, 14, 40 proportionality analysis, 14–16 Liberal principle of legitimacy (LPL), 95, 96–8, 113, 114 Libertarianism, 24–5 Liberty, 119, 192 Life imprisonment, 194 Lister, Andrew, 70, 71 Living constitutionalism, xv, 42, 66, 184 LPL. See Liberal principle of legitimacy (LPL) Macedo, Stephen, 76, 81 Mackie, Gerry, 206, 211–12, 213–14, 218 Maliki school, 132, 134 Mathews, Jud, 301 Mendes, Conrado Hübner, 306 Mercier, Hugo, 222–3 The Metaphysics of Morals (Kant), 168 Michelman, Frank I., xv–xvi, 20, 333–4. See also Constitutional fidelity Micro-macro problem, 153–5 Mill, John Stuart, 18 Monderman, Hans, 228 Moral-focused legal centralism, 207–8, 214 Moral reading as alternative to constitutional public reason (CPR), 77–80 “Natural law approach” to public reason, 27–30 basic human goods and, 29, 41 courts and, 29–30 inclusion in public reason concept, 41 justification and, 36 Rawls and, 27–8 religion and, 27–8 Roman Catholicism and, 27

Necessity analysis step of proportionality analysis in ECtHR, 239–46 criminalization of homosexuality and, 241 deference and, 244–5 desirability and, 239–40 indispensability and, 239–40 overview, 232–3, 245–6, 253–5 pressing social need and, 240–1, 245, 254–5 proportionality sensu stricto analysis step and, 241–6 totalitarian symbols and, 244 in Kantian constitutional justice, 187–8 least-restrictive-means (LRM) test, 14–16, 187–8, 243 in “liberal approach”, 14–16 overview, 256 Right to Justification Theory (RTJ) and, 265 in WTO DSS, 298–9 New commonwealth model of constitutionalism, 179, 197 New constitutionalism, 183–4 Non-ideal theory, public reason and, 118–21 Nonjusticiable political questions in United States, 338–9 Normative theory of public reason basic argument, 143–4 consensus view constitutional public reason (CPR) and, 80–1 convergence view and, 37 full consensus view, 7–8 overlapping consensus (See Overlapping consensus) overview, 36–7 strong consensus view, 7–8, 80–1 weak consensus view, 7–8, 80–1 conventionalism versus, 147–9 convergence view “classical liberal approach” and, 25–6, 36–7, 40 consensus view and, 37

in de x constitutional public reason (CPR) and, 80–1 overview, 8 de facto versus ideal acceptance, 9 democratic voluntarism versus, 145–7 diversity and, 41–2 ideal of public reason (See Ideal of public reason) idea of public reason (See Idea of public reason) legitimacy of public impositions and “criterion of legitimacy based on reciprocity” (CLBR), 108–10, 113–14 liberal principle of legitimacy (LPL), 95, 96–8, 113, 114 overview, xvii–xviii, 143–4 positivism versus conventionalism, 147–9 democratic voluntarism, 145–7 overview, 144–5 procedural aspects of constitutions in, 156 “public reason as justification vis-àvis broader public approach”, 34–5, 41 reasonable pluralism and, 9, 37, 68, 85–6, 115, 327–8 “self-evident truths” and, 161–3 Northern Ireland, criminalization of homosexuality in, 243–4, 250–2 Objections to public reason idealization of courts, 333 incompleteness of, 86 indeterminacy objection to constitutional public reason (CPR) (See Indeterminacy objection to constitutional public reason (CPR)) social reform and (See Social reform, objections to public reason and) undemocratic nature of courts, 146–7, 159–60 Originalism, xv, 42, 66, 119, 184 Original public meaning originalism, 42

361

Overlapping consensus “classical liberal approach” and, 25 constitutional public reason (CPR) and, 88 “exemplar of public reason” and, 328 Islamic law and, 116, 131–2, 133 legitimacy and, 328 overview, 7–8, 37 “political liberal approach” and, 19–21 Rawls on, 37, 116, 162 Palmer, Eric, xviii–xix, 14. See also Kantian constitutional justice Parr, Tom, 55 Permissibility objection to laws not motivated by public reason counter-examples, 58 defined, 47–8 direct relevance of motivation and, 50, 53–9 Doctrine of Double Effect (DDE) and, 50–2, 58 indirect relevance of motivation and, 50, 59–61 justification and, 52–3, 59, 63 mixed-motive cases and, 61–5 morality and, 58–9 motivation as altering meaning or significance of action, 60 overview, 47–50 physician-assisted suicide hypothetical, 51–2, 61 pork hypothetical, 60 predictive significance and, 60–1 race discrimination hypotheticals, 54–7 conscious racism, 54, 57 harmless discrimination, 55–7 unconscious racism, 54–5 responses to, 48 school dancing hypothetical, 52, 57–8, 61–3 tactical bomber/terror bomber hypothetical, 50–1, 60–1 time sensitivity and, 58 Perrone, Roberto, 240–1 Perry, Michael, 247–8

362

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Petersmann, Ernst-Ulrich, 35, 296–7, 303, 305 Physician-assisted suicide, 51–2, 61, 340–1 Pluralism “classical liberal approach” and, 25, 26–7 “deliberative approach” and, 32 in Islamic law, 130–1 “political liberal approach” and, 17–18, 20–2 reasonable pluralism, 9, 37, 68, 85–6, 115, 327–8 “Political liberal approach” to public reason, 16–24. See also Political Liberalism (Rawls) autonomy of, 16–17 comprehensive doctrines and, 17–18 courts and, 22–3 “criterion of legitimacy based on reciprocity” (CLBR), 108–10, 113–14 deep political liberalism, 20 deliberative approach compared, 30–1 “deliberative approach” compared, 32 epistemic abstinence of, 16–17 liberal principle of legitimacy (LPL), 95, 96–8, 113, 114 limited applicability of, 16–17 other approaches compared, 36, 37 overlapping consensus and, 19–21 pluralism and, 17–18, 20–2 positive-oriented version and, 19–20, 39–40 Rawls and, 16–17, 18, 20 reasonable pluralism and, 9, 37, 68, 85–6, 115, 327–8 religion and, 23–4 restraint-oriented version and, 18–19, 23–4, 39–40 Roman Catholicism and, 18 shallowness of, 16–17 Political Liberalism (Rawls) constitutional fidelity and (See Constitutional fidelity)

constitutional public reason (CPR) and, 75 liberal principle of legitimacy (LPL) and, 94–5, 96, 97 “political liberal approach” and, 20 reasonable pluralism and, 115 supreme courts and, 120–1 Political pathologies, 266 Positive-orientation ideal, 11 Positive-oriented version of public reason, 11, 19–20, 39–40 Positivism conventionalism and, 147–9 democratic voluntarism and, 145–7 overview, 144–5 Pragmatism, xv, 66 Predictive significance of agent’s intentions, 60–1 Privacy, 259, 276, 278–9 Procedural aspects of constitutions, 156, 328–9 Proportionality analysis legitimate aim analysis step (See Legitimate aim analysis step of proportionality analysis) in “liberal approach”, 14–16 necessity analysis step (See Necessity analysis step of proportionality analysis) overview, 256 proportionality sensu stricto analysis step (See Proportionality sensu stricto analysis step of proportionality analysis) Right to Justification Theory (RTJ) in context of, 263–6 (See also Right to Justification Theory (RTJ)) steps of analysis, 256 structural versus substantive considerations, 256–7 suitability analysis step in ECtHR, 243 in Kantian constitutional justice, 187 in “liberal approach”, 14–16 Proportionality sensu largo. See Proportionality analysis

in dex Proportionality sensu stricto analysis step of proportionality analysis in ECtHR legitimate aim analysis step and, 238–9 necessity analysis step and, 241–6 overview, xxiv, 242–3 in Kantian constitutional justice criticism of, 191–2 excluded reasons, 192–5 judicial supremacy and, 195–7 legitimate aim analysis step and, 187, 192–5 necessity analysis step and, 187–8 overview, 183–6 prima facie case, 186–7 proportionality sensu stricto analysis, 188–91 suitability analysis step, 187 in “liberal approach”, 14–16 in WTO DSS, 296–7, 299–301, 318–19 weighing and balancing, 298–9 “Public reason as justification vis-à-vis broader public approach”, 34–5, 41 Public reason–based constitutionalism fact of reasonable disagreement, 151–3 fundamental status of free and equal persons, 150 micro-macro problem, 153–5 overview, xvii–xviii, 144, 149–50 substance versus procedure, 153 what might be reasonably accepted versus what cannot be reasonably rejected, 155–6 Public reason liberalism, xix–xx, 24, 25–6, 225 Punishment-focused legal centralism, 204–7, 208, 214 Quran. See Koran Race discrimination, legislative motivation and, 54–7 conscious racism, 54, 57 harmless discrimination, 55–7

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unconscious racism, 54–5 Rape laws, 214–15 Rawls, John. See also specific topic or work; specific work on civic duty, 70–2 on constitutional fidelity (See Constitutional fidelity) constitutional public reason (CPR) and, 66, 67, 68–9, 77 on constitutions, 157 “deliberative approach” and, 30 on dualist democracy, 119–20 on Dworkinian moral reading, 78, 79 Dworkin on, 70 evolution of public reason, xi, 2 “exemplar of public reason” and, 2, 38, 75, 93, 225, 323, 335 Fadel on, xvi–xvii Finnis and, 36 free-standing concept of political justice and, 115–16 on ideal of public reason, 10 Islamic law and, 116–18 on judges versus citizens, 92–3 on legislation, 201 Michelman on, xv–xvi “natural law approach” and, 27–8 on overlapping consensus, 37, 116, 162 on physician-assisted suicide, 340 on political discourse, 225, 333 “political liberal approach” and, 16–17, 18, 20 on political power, 90 on reasonable disagreement, 151 on reasonable pluralism, 9, 68, 85–6, 115, 327–8 on reasoning from conjecture, 125–6 on religion, 121–3 on role of courts, xi–xii, 105, 120–1, 225 on social stability, 207 on stand-off, 85 Zurn on, xxv Raz, Joseph, 18, 261, 270 Reasonable pluralism, 9, 37, 68, 85–6, 115, 327–8 Reason-constraining ideal, 8–9, 11

364

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Reasoning from conjecture, 125–6 Reciprocity, public reason and, 7 Reidy, David, 7, 84 Religion exclusion from public reason, 121–2 freedom of religion, 151, 236, 278–9, 336–7 “natural law approach” and, 27–8 “political liberal approach” and, 23–4 Rawls on, 121–3 Representative function of judicial review, 331–3, 334 Restraint-oriented version of public reason, 18–19, 23–4, 39–40 Right to Justification Theory (RTJ) in ECtHR practice, 276–9 democratic participation and, 271 freedom of press and, 277–8 freedom of religion and, 278–9 freedom of speech and, 259, 276–7 overview, 266 privacy and, 259, 276, 278–9 proportionality analysis and, 258, 259, 265 rights versus duties and, 272 in human rights context, 259–63 institutions, role of, 263–4 justifiable reasons and, 260–1, 263 legitimacy and, 262–3 overview, xxiii, 257–8, 259 legitimacy and in human rights context, 262–3 in proportionality analysis context, 265–6 normative context democratic participation and, 258–9, 268–71 overview, 258, 267–8 rights versus duties and, 258–9, 272–5 overview, xxiii–xxiv, 279–80 in proportionality analysis context, 263–6 constitutionalism and, 264–5 deference and, 266 ECtHR practice, 258, 259, 265 judicial review and, 265 legitimacy analysis, 265–6

necessity analysis step and, 265 overview, xxiii–xxiv, 259 political pathologies and, 266 proportionality sensu stricto analysis step, 265, 266 public reason compared, 257 Right to life, Kantian constitutional justice and, 176–7 Ripstein, Arthur, 171, 178 Robinson, Paul H., 208, 210, 211 Robust justification of norms, 222–5 Roman Catholicism, 18, 27 Rousseau, Jean-Jacques, 4 RTJ. See Right to Justification Theory (RTJ) Rubini, Luca, 305 Sadurski, Wojciech. See also European Court of Human Rights (ECtHR) on ECtHR, xxi–xxii, 319 on international courts, 346 “liberal approach” and, 14, 16 Right to Justification Theory (RTJ) and, 271 on role of courts, 38 on WTO DSS, 301 Saudi Arabia, Islamic law in, 135 Scalia, Antonin, 119 Scanlon, Thomas, 51, 59, 60 Schwartzman, Micah, xiii–xv, 83. See also Legislative motivation, public reason and “Self-evident truths”, 161–3 Senegal, Tostan Community Empowerment Program, 223–4 Shafiʿi school, 132 Shlomo Agon, Sivan, xxii–xxiii, 34–5. See also World Trade Organization Dispute Settlement System (WTO DSS) Singapore, Islamic law in, 135 Slavery, Kantian constitutional justice and, 176 Slavny, Adam, 55 Social reform, objections to public reason and caste system example, 214

in dex compliance with law and Chicago study, 209–10 normative perspective on, 208–11 in post-Soviet Europe, 213–14 domestic violence example, 214–15 drug law example, 217 drunk driving example, 214–15 female genital cutting example, 217–18, 224 justification effect and, 220–2 legal centralism and coercion, role of, 205–7 moral-focused legal centralism, 207–8, 214 punishment-focused legal centralism, 204–7, 211, 214 overview, xix–xx, 201–4, 226–7 pluralistic ignorance and, 219–20 Prohibition example, 216–17 rape example, 214–15 social norms and conflict between social norms and law, 216, 217–18 effect of, 212–18 importance of, 227–8 lack of, 216–17 personal moral convictions versus, 211–12 relation with law, 225–6 robust justification of norms, 222–5 tools for strengthening, 227–8 unjustified social norms, 218–20 Solum, Lawrence, 23, 39, 66, 79 Sorel, Jean-Marc, 306 South Africa, Constitution, 184 Special education, 236 Standing, public reason versus, 336–7 Stare decisis, public reason versus, 341–2 Statist or state-centered understanding of public reason, 16, 316 Stone Sweet, Alec, xviii–xix, 14, 165, 301. See also Kantian constitutional justice Strict scrutiny, 242 Strong consensus view of public reason, 7–8, 80–1

365

Stuntz, William J., 211, 216–17 Substantive aspects of constitutions, 156–7, 328–9 Sudan female genital cutting in, 217–18, 224 Saleema campaign, 224 Suitability analysis step of proportionality analysis in ECtHR, 243 in Kantian constitutional justice, 187 in “liberal” approach to public reason, 14–16 Sunnī tradition, 127, 132 Sunstein, Cass, 242 Supranationalism, public reason and, 233–4 Supranational understanding of public reason, 233, 346 Switzerland freedom of speech in, 237–8 obscene paintings in, 250, 251–2 protection of morals exception in, 250, 251–2 Technical legal reasoning, public reason versus, 336–42 A Theory of Justice (Rawls) constitutional fidelity and, 100 “justice as fairness” in, 327 moral doctrine and, 13–14 “political liberal approach” and, 18, 20 Thomson, Judith, 52 Three–strikes laws, 337–8, 340 Tomasi, John, 24 Toward Perpetual Peace among States (Kant), 165, 183, 198–9 Trachtman, Joel P., 318 Traditional model of international courts, 284–6 Trolley problem, 193–4 Trusteeship model of international courts, xviii–xix, 166, 180–3, 186, 195–7, 198–9 Turkey freedom of press in, 278 freedom of religion in, 278–9 headscarves in, 278–9

366

in de x

Turkey (cont.) Islamic law in, 135 privacy in, 278–9 Tyler, Tom R., 206–7, 208–10, 211–12 United Kingdom gays in military in, 234–6 Northern Ireland, criminalization of homosexuality in, 243–4, 250–2 United States amicus curiae briefs in, 340 Baker v. Carr (1962), 338–9 bicameralism in, 119 Bill of Rights, 119 campaign finance in, 341–2 Citizens United v. Federal Elections Commission (2010), 341–2 Colegrove v. Green (1946), 338–9 cruel and unusual punishment in, 337–8, 340 domestic violence laws in, 214–15 draft card burning case, 188–9 drug laws in, 217 drunk driving laws in, 214–15 dualist democracy in, 119–20, 330 Eighth Amendment, 337–8 electoral rights in, 338–9, 341 Elk Grove v. Newdow (2004), 336–7 Ewing v. California (2003), 340 First Amendment, 188–9, 336–7 freedom of religion in, 336–7 gay marriage in, 341 Islamic law in, 139–40 judicial review, lack of public reason in, 335–42 jurisdiction versus, 337 nonjusticiable political questions versus, 338–9 overview, 323–4 standing versus, 336–7 stare decisis versus, 341–2 technical legal reasoning versus, 336–42 legalism in juridical discourse in, 342–4 cases and controversies requirement as institutional determinant, 343, 346–7

common law as institutional determinant, 343, 344, 347–8 multiple functions of Supreme Court as institutional determinant, 343–4, 347 liberty in, 119 living constitutionalism in, 184 Lockyer v. Andrade (2003), 337–8 Luther v. Borden (1849), 316 Obergefell v. Hodges (2015), 341 originalism in, 184 physician-assisted suicide in, 340–1 Pledge of Allegiance case, 336–7 Prohibition in, 216–17 rape laws in, 214–15 redistricting cases, 338–9 Roe v. Wade (1973), 80 Shelby County v. Holder (2013), 341 Solem v. Helm (1983), 337–8 strict scrutiny in, 242 three–strikes laws in, 337–8, 340 Vacco v. Quill (1997), 340–1 Vieth v. Jubelirer (2004), 338–9 Washington v, Glucksberg (1997), 340–1 Vallier, Kevin, 8, 24–7 Venzke, Ingo, 284–5, 306 von Bogdandy, Armin, 284–5, 306 Waldron, Jeremy, 201, 224 Waluchow, Wil, 73, 85 Weak consensus view of public reason, 7–8, 80–1 Wildhaber, Luzius, 231 Williams, Andrew, 86 Williams, Howard, 199 World Trade Organization Dispute Settlement System (WTO DSS) accountability in, 294, 296, 298, 315 amicus curiae briefs in, 307–10 Brazil–Tyres (2007), 298–9 Canada–Renewable Energy (2013), 304–5, 309–10 climate change and, 304–5 custodian of public deliberation, WTO as, 310–13 deliberative public reason

in de x custodian of public deliberation, WTO as, 310–13 overview, 305–6 promotion of, 306–10 EC–Asbestos (2001), 307, 308–9 EC–Hormones (1998), 296, 301–2 EC–Seal Products (2014), 298–9, 312 ECtHR compared, 319 establishment of, 289 evolution of, 289–90 explanatory paragraphs, 313–15 GATT/GATS general exceptions clauses, public reason and, 293–301 “going public”, 291 justification and, 291–2 Korea–Beef (2001), 298–9 legitimate aim analysis step of proportionality analysis in climate change and, 304–5 custodian of public deliberation, WTO as, 310–13 explanatory paragraphs, 313–15 GATT/GATS general exceptions clauses, 293–301 within general exceptions clauses, 293–301 non-WTO law, references to, 294–6, 316–18 outside general exceptions clauses, 301–5 overview, 282–3, 290–1, 319–20 promotion of deliberative procedures, 306–10 necessity analysis step of proportionality analysis in, 298–9 non-WTO law, references to, 294–6, 316–18 openness in, 293–4

367

overview, xxii–xxiii, 282–3, 320 procedural law, public reason and custodian of public deliberation, WTO as, 310–13 overview, 305–6 promotion of deliberative procedures, 306–10 proportionality sensu stricto analysis step of proportionality analysis in, 296–7, 299–301, 318–19 weighing and balancing, 298–9 “public reason as justification vis-àvis broader public approach”, 34–5 standard of review, 297–8 substantive law, public reason and climate change and, 304–5 GATT/GATS general exceptions clauses, 293–301 overview, 292–3 teleological turn in, 294–6 US–Clove Cigarettes (2012), 302–4, 313–14, 316 US–Continued Suspension (2008), 301–2, 309 US–Gasoline (1996), 293–4 US–Shrimp (1998), 294–6, 297–9, 307, 311, 316 WTO DSS. See World Trade Organization Dispute Settlement System (WTO DSS) Xiao, Erte, 215 Zurn, Christopher F., xxiv–xxvi, 33, 38. See also Judicial review, public reason and Zylberman, Ariel, 166–7 Zysset, Alain, xxiii–xxiv. See also Proportionality analysis