Public Reason and Political Community 9781780936574, 9781472548214, 9781780937274

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Public Reason and Political Community

Bloomsbury Research in Political Philosophy Series Editor: Helen Frowe, Senior Lecturer in Philosophy, University of Kent, UK Bloomsbury Research in Political Philosophy presents cutting-edge scholarship in the field of political philosophy. Making available the latest high-quality research from an international range of scholars working on key topics and controversies in political philosophy and political science, this series is an important and stimulating resource for students and academics working in the area. Titles available in this series: Morality, Leadership, and Public Policy Eric Thomas Weber Nozick’s Libertarian Project Mark D. Friedman Perfecting Justice in Rawls, Habermas and Honneth Miriam Bankovsky Rawls, Dewey, and Constructivism Eric Thomas Weber Ricoeur, Rawls, and Capability Justice Molly Harkirat Mann Rousseau and Revolution edited by Holger Ross Lauristen and Mikkel Thorup The Concept of Justice Thomas Patrick Burke The Limits of Reason in Hobbes’s Commonwealth Michael P. Krom

Public Reason and Political Community Andrew Lister

Bloomsbury Academic An imprint of Bloomsbury Publishing Plc

LON DON • OX F O R D • N E W YO R K • N E W D E L H I • SY DN EY

Bloomsbury Academic An imprint of Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

1385 Broadway New York NY 10018 USA

www.bloomsbury.com BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2013 Paperback edition first published 2016 © Andrew Lister, 2013 Andrew Lister has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Bloomsbury or the author. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-7809-3657-4 PB: 978-1-3500-0538-9 ePDF: 978-1-7809-3727-4 ePub: 978-1-7809-3801-1 Library of Congress Cataloging-in-Publication Data Lister, Andrew. Public reason and political community/Andrew Lister. pages cm. – (Bloomsbury studies in political philosophy) Includes bibliographical references and index. ISBN 978-1-78093-657-4 (hardcover) – ISBN 978-1-78093-801-1 (ebook (epub)) – ISBN 978-1-78093-727-4 (ebook (pdf)) 1. Political science–Philosophy. 2. Justifi cation (Theory of knowledge) 3. Reason. I. Title. JA71.L58 2013 320.01–dc23 2013016923 Series: Bloomsbury Research in Political Philosophy Typeset by Deanta Global Publishing Services, Chennai, India Printed and bound in Great Britain

Contents Preface

vi

1

Public Reason in Practice and Theory

1

2

False Starts: Unsuccessful Justifications of Public Reason

29

3

Respect for Persons as a Constraint on Coercion

59

4

The Higher-Order Unanimity Escape Clause

81

5

Civic Friendship as a Constraint on Reasons for Decision

105

6

Public Reason and (Same-Sex) Marriage

135

7

Conclusion

175

Notes Bibliography Index

177 223 233

Preface This book has been in the making for a long time. For their patience and support, I would like to thank Lise Ann, Patrick and Daniel. For its financial support, I would like to thank the Social Sciences and Humanities Research Council of Canada. Matthias Brinckman gave me helpful comments on Chapter 4. Steven Wall raised a number of important questions about the argument in Chapter 5, some of which I hope to have answered. I also had valuable discussions with Simon Cabulea May about moral compromise and public reason, and benefited from reading an unpublished essay of his on the topic. Jonathan Quong provided me with detailed comments on the whole manuscript, which were extremely valuable. I presented drafts of Chapters 4 and 6 to the Center for the Study of Social Justice, Oxford University. I presented a draft of the section on religious freedom from Chapter 2 at the conference “Between Rawls and Religion: Liberalism in a Postsecular World,” Rome, Dec. 16–18, 2010. Finally, I would like to thank my colleagues at Queen’s University, particularly in the Political Philosophy Reading Group, where many of these ideas got started, for their ongoing encouragement, discussion, and friendship.

1

Public Reason in Practice and Theory

The ideal of public justification has been described as the ‘theoretical foundation’, ‘moral lodestar’ and ‘abiding moral heart’ of liberalism.1 In particular, it has been the linchpin for one prominent form of egalitarian liberalism. On the one hand, if the social order must be justified to everyone, it must be justified to the least well-off. On the other hand, if reasonable persons in a democratic society will hold a wide range of religious, philosophical and moral doctrines, the social order ought to be justifiable to all such reasonable points of view – even minority points of view – arguing for individual freedoms of thought, conscience and association. The demand that social institutions be acceptable to each seems hardest to meet with respect to the worstoff, suggesting that inequalities should benefit them. Within any social position, however, libertarians may reasonably (if wrongly) reject egalitarian redistribution. Thus, it has been argued that public reason liberalism faces an ‘anti-perfectionist dilemma’. If there is room for reasonable disagreement about distributive justice, as well as about human flourishing, liberals must either water down their standard of public justifiability, allowing some perfectionism, or ‘bite the bullet’ and sacrifice some justice-based policies.2 One of the main purposes of this book is to determine whether this dilemma is real, and if so, how it might be avoided. The book’s main premise is that the principle of public justification can be specified in different ways, with different implications for policy, on the basis of different underlying concerns. The requirement of public justifiability in the sense that I will use the term involves a requirement of multi-perspectival acceptability, an idealized unanimity criterion. But what is it exactly that must be publicly justifiable, and what happens if none of the available options attains the requisite unanimity? Is it coercive state action that must be unanimously acceptable to the appropriately idealized public; otherwise, we default to not acting, that is, not having a law or policy? Or, is it our principles, that is, our reasons for political decisions that must meet the unanimity criterion; otherwise, we default to not including the reasons in the grounds of our deliberations? It is when framed as

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Public Reason and Political Community

a constraint on coercion directly that the principle gives rise to the worry about undermining social justice. When framed in terms of reasons for decisions, the principle simply reduces the range of considerations that come into play when we decide how much to rely on the market or the state, for example, or how high to set the levels of taxation. Yet, when framed as a constraint on reasons for decisions, the principle is not as strongly opposed to paternalism, nor is it as useful for defending the liberal policy on issues such as abortion. The initial aim of this book is to sort out the relationships between the specification, justification and practical application of the principle, but ultimately, I want to argue for the reasons-for-decisions model, against the coercion model. Respect for persons as free and equal moral agents does not require that coercion must be invulnerable to reasonable rejection. In a pluralistic society, however, exclusion of reasonably contestable reasons from political decision-making establishes a relationship of mutual respect across deep moral differences. Thus, when framed as a constraint on reasons for decisions, public reason is a condition of civic friendship. This conception is communitarian, in a loose sense, because it grounds public reason in the value of community but does not assert any of the distinctive theses associated with the communitarian critique of liberalism. The idea of public reason is not an invention of political philosophers, but an articulation of norms that exist in contemporary political culture. The first section of this chapter illustrates this claim by describing appeals to public reason in the Canadian debate over same-sex marriage. Section 2 provides a more formal definition of public reason, identifying a number of dimensions in which any principle of public justification must be specified. Section 3 explains the two main ways of framing the demand for public justification that are the concern of this study. Section 4 responds to some preliminary objections to the reasons-for-decisions version of the principle. Section 5 provides a map of the chapters to come.

1 Appeals to public reason in the debate about Same-sex marriage During the 2003 hearings held by the Canadian House of Commons’ Standing Committee on Justice and Human Rights, many opponents of same-sex marriage expressed frankly religious views. The institution of marriage, they argued, is not the

Public Reason in Practice and Theory

3

creation of governments, or even religions, but of God himself. ‘Governments and courts are not the authors of marriage’, claimed Bruce Clemenger of the Evangelical Fellowship of Canada.3 ‘Marriage is the recognition of a structure that stems from nature’, argued André Gaumond, of the Canadian Conference of Catholic Bishops. ‘We believe that nature was bestowed upon us and that we can discern God’s will through it. Recognizing marriage means recognizing God’s role in the organization of society’.4 Shabbir Aly, of the Islamic Council of Imams, reiterated this view of marriage as a universal and divine institution. ‘Marriage within the Jewish, Christian, and Muslim tradition is the sacred institution given by God. It is not something that humans invent. So we do not make up the rules of it as we go along’.5 ‘[N]either the church nor the state instituted marriage’, claimed Ted Seres of the Pentecostal Assemblies of Canada, ‘although our theological position would say that marriage was a provision by God, instituted by God, as a social consequence of the created order. Marriage was embraced by society as a universal construct’.6 Proponents of this view argued that the definition of marriage could not legitimately be altered by parliament or courts.‘Since marriage is a universal social institution that pre-dates human governments, courts, and religious traditions’, argued Lois Mitchell of the Canadian Baptist Ministries, ‘neither Canadian courts, parliaments, nor religious institutions have the authority to redefine it’.7 In response, some participants adopted what Michael Sandel calls the naive strategy of simply denying these religious claims.8 For example, Choice Okoro, testifying on behalf of the United Church of Canada, asserted that ‘human sexual orientations, whether heterosexual or homosexual, are a gift from God and part of the marvelous diversity of creation’.9 Often, however, proponents of same-sex marriage employed the ‘sophisticated’ strategy of asserting that, whether true or false, religious views are not legitimate grounds for public policy in a pluralistic society. ‘I find it striking that three groups that accept Jesus Christ as the Saviour have such diverse opinions on the value of marriage’, responded Bloc Québécois MP Richard Marceau. ‘We have the United Church on one side and on the other, your church, Mr. Clemenger. And then we have Msgr. Gaumond, who is against allowing same-sex couples to marry’. Faced with such disagreement, it would be inappropriate to define civil marriage in accordance with one or the other of these religious views, Marceau argued. ‘Would that not be the best example of the fact that in a pluralistic society like Quebec and Canada, we should allow people whose opinions differ to have a relationship without involving the dogma of the Catholic Church, for example’?10 Marceau was explicit that theological reasons are not a legitimate basis for a public institution.

4

Public Reason and Political Community I am not a theologian so it is difficult for me to define the notion of essence. However I am a jurist and a legislator. That is why the kinds of social organization that I am familiar with and that I study are necessarily legal ones. So, with the greatest of respect for people who because of their religious beliefs do not accept homosexual marriages—and they are fully entitled to their opinion—the Justice Committee must not rely on theology to determine the essence of marriage. It is incumbent upon us to take a stand as legislators.11

Sheree Drummond made the same point in more general terms. ‘The particular beliefs of one or more faith traditions should not form the basis for law-making in a country with a secular system of government’.12 For Nathalie Des Rosiers of the Law Commission of Canada, this need to bracket religious disagreement stemmed from a concern over unequal treatment of those belonging to different religions. We have multiple religions in Canada. One way of living together is to give space for religious organizations to do what they do best and to have a secular state. I think this battle is over creating a secular state that doesn’t decide its rules of engagement or of exclusion based on religious concepts. Why would it favour some religions over others?13

For Marceau, it was a matter of freedom of conscience. ‘A religion cannot impose its point of view on society as a whole’, he stated.14 Alexandra Raffé put the point in constitutional terms. It seems to us that many of those who object to equal marriage for same-sex couples do so on religious grounds. They should no more be permitted to dictate to those not of their faith than we are able to dictate beliefs to them. Freedom of religion is protected under our charter. Freedom to impose your views on others is not.15

Many also cited the fact of religious disestablishment. Bloc Québécois MP Réal Ménard pointed out, ‘there is no state religion in Canada’.16 ‘Canada is a pluralistic democracy without an established religion, and one where church and state are separated’, agreed Prof. Shari Brotman of the Centre for Applied Family Studies, McGill University.17 ‘We are not a Christian nation’, argued Brad Tyler-West; ‘we are a multicultural nation that honours all others’.18 ‘Government really shouldn’t be dabbling in religion’, concluded Liberal MP Hedy Fry.19 Wayne Samuelson of the Ontario Federation of Labour explicitly linked religious disestablishment with the exclusion of religious reasons from decision-making about public policy. ‘There is a separation of church and state in this country.

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The right to civil marriage is outside the religious question. The state does not direct the affairs of religious institutions, nor should some religious teachings direct or formulate Canadian social policy’.20 The claim that religious reasons are not a legitimate basis for decisions about public policy finds support in the writings of many legal and political theorists. For example, Robert Wintemute states that ‘[r]eligious doctrines must be deemed absolutely irrelevant in determining the content of secular laws’.21 Similarly, Robert Audi has argued that the moral ideals underlying the institutional separation of church and state imply a rule of conduct for individual citizens, which he refers to as the principle of the secular rationale: [O]ne should not advocate or support any law or public policy that restricts human conduct unless one has, and is willing to offer, adequate secular reason for this advocacy or support. . . Thus, while one may be led to consider polygamy wrong because of religious scruples against adultery, one could support its legal prohibition only if one had adequate secular ground, say its danger to children.22

Opponents of same-sex marriage speaking from a religious perspective explicitly rejected this normative restriction of the grounds of decision-making. After quoting Wintemute’s statement to the committee, Barry Bussey of the Seventh Day Adventist Church registered his objection: [T]he church and its members have every right, as does any other citizen, to express their views on matters of public policy. Some have suggested that laws are solely the domain of the secular, but we disagree. All law is an expression of society’s morality of right and wrong. Discussions on morality without the views of religious groups would hardly be enlightened.23

From Bussey’s perspective, the norm of excluding religious reasons from public debate is an undemocratic limitation of free speech. It might be argued that Marceau et al are not fundamentally opposed to the use of religious ideas in public decision-making, but only to the use of views that deny some citizens equal concern and respect– views that, in this case, happen to be religious. According to this alternate interpretation, the salient feature of the views in question is not that they are religious but that they demean, degrade or insult the ways of life of others, and so, violate the principle that citizens must be treated as equals. As British Columbia teacher James Chamberlain put it, ‘religious views that deny equal recognition and respect to the members of a minority group cannot be used to exclude the concerns of the minority group’.24

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Public Reason and Political Community

Chamberlain would presumably also object to non-religious views that deny equal respect. This interpretation could draw upon Ronald Dworkin’s defence of liberal neutrality in terms of a right of moral independence. Government ‘must impose no sacrifice or constraint on any citizen in virtue of an argument that the citizen could not accept without abandoning his sense of his equal worth’; ‘[p]eople have the right not to suffer disadvantage in the distribution of social goods and opportunities . . . just on the ground that their officials or fellow citizens think that their opinions about the right way for them to live their lives are ignoble or wrong’.25 One of Dworkin’s chief examples of a view violating moral independence has always been the view that homosexuality is sinful.26 Yet, the objections cited earlier cannot easily be construed in this way – as objections to inherently discriminatory views that happen to be religious. Opponents of same-sex marriage typically claimed to be committed to the principle that all individuals are equally deserving of concern and respect.27 It may be that opposition to same-sex marriage is, in fact, motivated by hatred and prejudice, rather than any plausible moral view committed to treating all persons with respect. However, if the objection was not to religious arguments in general but just to religious arguments that deny equal respect, the objection would only be convincing if one accepted not just the falsity but the unreasonableness of the views in question. Interpreted in this way, objections to religious arguments against same-sex marriage would lose the rhetorical benefit of truth-avoidance. Bloc Québécois MP Richard Marceau went out of his way not to deny the truth of religious doctrines, relying instead on the fact of religious disagreement. The advantage of this ‘sophisticated’ liberal response is that it sidesteps the question of who is right about whether or how God defined marriage, by arguing that we must bracket the disagreement, and exclude both answers. To make sense of the sophisticated response to conservative religious views, we need to appeal to a principle of public reason. However, the idea of public reason raises a number of intellectual puzzles and, depending on how the principle is specified, may have counterintuitive practical implications. One immediate problem with the proposal to exclude religious views from political decision-making is that religious views have been used to defend laudable political goals, from the abolition of slavery to the elimination of poverty.28 The rhetoric of appeals to public reason involves bracketing rather than denying religious truth claims, but perhaps the selective application of the principle belies this fact. Another problem is that we need some principled basis upon which we are to exclude all but only religious reasons from public

Public Reason in Practice and Theory

7

decision-making. The argument cannot be that religion is nonsense, for that would involve denying the truth of the views in question, rather than denying that they are admissible whether true or false. The claim might be that religious questions are subject to deep reasonable disagreement. However, if we justify public reason in this fashion, it seems that secular doctrines such as utilitarianism will have to be excluded too, Philip Quinn points out, because utilitarianism is also not beyond reasonable objection.29 Thus, Rawls’s conception of public reason counts secular moral doctrines such as Kantian autonomy or Millian individualism as reasonably contestable ‘comprehensive doctrines’, which we must consider to be non-public. Rawls’s principle of public reason is, for this reason, fairer and more consistent than Audi’s, Nicholas Wolterstorff contends.30 Yet, Rawls’s exclusion of reasonable moral controversy suggests that the principle may refute itself, because it is itself a controversial moral principle. A related problem, which I have already mentioned, is that if it turns out that there is room for reasonable disagreement about justice itself, and in particular about egalitarian plans for the redistribution of wealth and income, we may only be able to justify a very limited, night-watchman state. The idea of public reason is intuitively plausible, in some respects, and it is a norm citizens appeal to in real political debates, but it has some potentially unacceptable implications, and may not even be intellectually coherent.

2 The idea of public reason The idea of public reason has been at the centre of recent theories of political or justificatory liberalism.31 The term ‘political liberalism’ refers to a particular kind of liberal theory about politics – one distinguished by its scope and the manner of its justification. Moral views about the proper exercise of political authority will ordinarily be grounded in underlying religious, philosophical, or moral doctrine. A liberal doctrine about politics can thus be based on a liberal philosophy of life; Mill’s celebration of individuality is usually cited as an example.32 In contrast, a doctrine about politics will be political in the technical sense if it is one that is intended to be acceptable to all reasonable moral points of view. Political liberalism is thus a form of liberalism that accepts a constraint of reasonable acceptability on the exercise of political power. In Rawls’s work, this condition finds its expression in the ‘liberal principle of legitimacy’ and the associated ideal of ‘public reason’.33 Rawls sometimes spoke of both together

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under the rubric of reciprocity, and it is this formulation of the view that I prefer, for it provides his most general and least technical statement of the basic idea: By what ideals and principles, then, are citizens as sharing equally in ultimate political power to exercise that power so that each of them can reasonably justify their political decisions to each other? The answer is given by the criterion of reciprocity: our exercise of political power is proper only when we sincerely believe that the reasons we offer for our political action may reasonably be accepted by other citizens as a justification for those actions.34

The general idea of public reason is thus that we should exercise political power only in ways it is reasonable to expect everyone to accept, despite the fact reasonable people will inevitably disagree about many important religious, philosophical and ethical questions. The idea of reasonableness has two main elements. The first is a threshold of cognitive capacity and moral disposition, which, following Charles Larmore, I will describe as the willingness and ability to reason sincerely with others about what is true, and good, and right.35 Rawls also appeals to this minimal sense of reasonableness in saying that the ‘burdens of judgment’, or obstacles to agreement between reasonable persons, do not include self-interest, bias, or malice. The burdens of judgement are ‘the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgement in the ordinary course of political life’, and include complexity of evidence, multiplicity of relevant values that need to be weighted, conceptual vagueness and the influence of diverse life experiences.36 These burdens give rise to the fact of ‘reasonable pluralism’.37 Reasonable pluralism is a thesis about the normal operation of human reason under conditions of liberty, when people have freedom to think, speak and associate as they please. For a broad range of philosophical and moral questions, because of the burdens of judgement, the views of reasonable people will either not converge, or not converge quickly enough, to make it possible that all reasonable citizens should ever agree on a particular comprehensive38 doctrine. Barring the forcible imposition of one particular view, there will be a substantial degree of religious, philosophical and moral diversity in a democratic society simply because that is what the free but inevitably bounded exercise of human reason generates. The second element of the reasonable is a set of substantive moral and epistemological propositions. Someone who is reasonable in the full sense recognizes the existence of burdens of judgement, and the fact of reasonable pluralism, and so, accepts that society is a cooperative venture between free and equal persons. The requirement that the exercise of political power be publicly

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justifiable is supposed to follow from recognition of the burdens of judgement and the fact of reasonable pluralism, together with the democratic idea of free and equal citizenship in society conceived of as a cooperative scheme. A maximal conception of reasonableness would therefore also include acceptance of the idea of public reason. Whether or not we should adopt such a demanding conception of reasonableness is a question I will take up in Chapter 5. At the heart of public reason, then, is what David Estlund calls a ‘qualified acceptability requirement’.39 A qualified acceptability requirement is a partly idealized unanimity requirement, and thus, a demand for multi-perspectival acceptability. Reasonableness is one possible standard of qualification; different conceptions of reasonableness yield different standards of qualification. It is an idealized requirement because the morally salient fact is that people who pass the cognitive/moral threshold in question (e.g., reasonableness) persist in disagreeing in deep ways, given liberty of thought, expression and association. It is only a partly idealized requirement, however, because someone might claim that perfectly rational and moral people, given unlimited opportunity to deliberate, would all ultimately accept the one true religious or philosophical doctrine. Even if this were so, it is not true that all ordinarily reasonable citizens in any actual society will agree, assuming they are free to disagree. The idealization involved in requiring acceptability only to reasonable or otherwise qualified points of view is essential to the normative force of the principle. Why should the objections of egoistic, vicious, or crazy people have any bearing on my decisions about what political decisions to support, when what I take to be important moral values are at stake?40 It is possible to formulate idealized unanimity requirements in either positive or negative terms, but the difference is merely one of presentation. Thomas Scanlon formulated his moral contractualism negatively, in terms of the impossibility of reasonable rejection, because of the phenomena of superogation. Even if I would be reasonable to reject some purported moral norm that imposed very heavy costs on me, I might, heroically, accept the norm, and my self-sacrifice need not be unreasonable. Thus, Scanlon’s contractualist principle is cast in terms of rules no one can reasonably reject, rather than in terms of rules anyone could reasonably accept.41 The analogue for political contractualism involves the reasonableness of philosophical conversion. I am reasonable in rejecting Catholicism, but I would presumably not be unreasonable to accept Catholicism. Therefore, if we define public justifiability positively, in terms of reasonable acceptability, we must hold constant the range of background doctrines we take to be reasonable. It is not sufficient, for a reason to be public, that it is a reason

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that one could reasonably come to accept if one went through a religious or philosophical conversion. The requirement is rather that anyone could accept it without going through such a conversion. Once we have relativized the positive formulation to a fixed background of reasonable views, it is equivalent to the formulation in terms of invulnerability to reasonable rejection. The idea of public justifiability as qualified acceptability needs to be distinguished from several related but distinct senses of publicity, which I will refer to as ‘no higher authority’, ‘no necessarily hidden rationales’, and ‘no expert knowledge required’. No Higher Authority: Public justifiability might first of all mean ‘justifiability by reason alone, without appeal to authority’. According to Kant, private reasoning is reasoning directed to those who accept the authority of a particular person or institution, reasoning that is therefore constrained by the pronouncements of that authority. Such reasoning is guided by authority and not solely by the force of the better reason.42 Public reasoning, in contrast, is reasoning that accepts no authority but that of reason itself, and is thus addressed to the body of citizens as a whole, if not all rational creatures. The Rawlsian idea of public reason is similar in that public reason is the reason of the whole body of citizens, not the reason of a subset of citizens belonging to a particular church. It is different in that Kant draws no limit on appeals to the truth, no matter how deep or reasonably contested. For example, Kant claimed that morality was grounded in rationality, properly understood. This claim is plausible but not uncontroversial among reasonable people. It is part of public reason, in Kant’s sense, because it is a claim made based on general philosophical arguments that do not depend on any institutional authority. It is not part of public reason on Rawls’s account because it is the subject of reasonable and foundational philosophical controversy. No Necessarily Hidden Rationales: Public justifiability might also be interpreted as ‘justifiability in public without untoward effects’. Reasons for a decision are public in this sense if they could be common knowledge without undermining the decision’s objectives. This criterion rules out reasons for policies whose justification must necessarily be hidden from the population, for example, Plato’s noble lie and government-house utilitarianism.43 Of those doctrines whose justification can be aired in public without perverse effects, however, many will not pass the test of qualified acceptability. No Expert Knowledge Required: Finally, public justifiability might be interpreted as ‘justifiability in terms of ideas intelligible to ordinary citizens’.

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Reasons are public in this sense when they can be understood by all competent citizens, not just by an expert elite. Intelligibility to ordinary citizens may be a good thing, but it is not the same thing as universal (reasonable) acceptability. I may be able to understand reasons that I could not accept without giving up my current religious or philosophical doctrine. Other reasons might be unintelligible except to scientific experts, but acceptable to experts, no matter what reasonable comprehensive doctrine they espouse. Rawls thought that our reasons for decisions about the basic structure of society should be intelligible to non-experts, as well as being acceptable to reasonable moral points of view.44 Yet, it is the reasonable-acceptability requirement that is central to the view, and that will be the focus of this book, not the broad-intelligibility requirement. Within the framework of Rawls’s theory, it is possible to give a narrow construal of public reason, as a secondary principle governing the interpretation and application of more basic principles of justice. At one point, in Political Liberalism, Rawls presents the principle of public reason as one that the parties select in the original position, as a norm to guide their interpretation and application of the principles of justice they have already adopted, one instructing us to appeal to commonly recognized modes of reasoning and generally recognized facts when implementing and applying principles of justice.45 Recently, a number of people have argued that public reason in this sense is not a requirement of legitimacy or civility, but a solution to the assurance problem. Social cooperation requires not only that most people normally have sufficient reason to follow the rules, but that they know that others can generally be counted upon to follow the rules. The problem of assurance arises in the first instance with respect to compliance with laws, but also with respect to decisions about laws, which ought to be (but may not be) guided by the principles of justice. Disagreement about the implications of common principles may lead us to doubt that others are genuinely committed to these principles, inviting ‘defensive defection’, which is to say voting on the basis of self-interest or on the basis of one’s own comprehensive doctrine without regard to public justifiability because that is what one thinks others are doing. Sharon Lloyd argues that public reason reassures us that we do all, in fact, affirm the same principles, disagreeing about interpretation and application only.46 Macedo and Hadfield share this ‘deflationary’47 view of the role of public reason, as does Paul Weithman.48 However, these narrow accounts of public reason as a solution to the assurance problem presuppose a more fundamental commitment to public justification. Public reason is a principle guiding deliberation about the

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implications of a political conception of justice, meaning one that is intended to be acceptable to all reasonable religious and philosophical doctrines. Rawls’s narrow principle of public reason may provide assurance that others are committed to a particular conception of justice, but the deeper question is why this conception must be political, in Rawls’s sense. The requirement that we should decide fundamental political questions on the basis of a conception of justice that is reasonable to expect everyone to accept (rather than on the basis of our various comprehensive doctrines directly) involves a commitment to public justification at a more basic level, the level of liberal legitimacy and reciprocity in justification.49 Public justifiability at this level cannot be intended to solve an assurance problem. The assurance problem as Lloyd et al understand it is the problem of assuring ourselves that others who claim to be committed to political liberalism and a political conception of justice really are so. Public reason in the narrow sense may help solve this problem, the problem of assurance of commitment to the political conception of justice, but the assurance problem cannot explain the fundamental commitment to public justifiability contained in the idea of political liberalism itself. Now that we have the general idea of public reason on the table, I can outline some of the main areas in which the principle must be specified. The most general question to ask about a principle of public justification is what kind of a principle it is. Is it intended to be a legal duty that some institution is meant to enforce, or is it a moral duty, to be ‘enforced’ only by mutual criticism? If the principle is a moral principle, is it a principle of justice, or of legitimacy or of something else? If a given law is not publicly justified, does this make it unjust or does it remove the law’s authority? A second set of questions concerns what it is that has to be publicly justified. Is it what we say to one another, or what we do, that must be publicly justifiable? If it is conduct that matters, whose conduct must be publicly justifiable: citizens, legislators, judges? If it is legislation that matters, is it all kinds of laws that must be publicly justifiable, or just certain kinds of laws, for example, constitutional essentials or criminal laws? Is it the laws themselves that must be acceptable to qualified points of view or only the reasons we invoke in making decisions about the laws? If it is reasons that must be publicly justifiable, do all reasons have to meet this standard, or only some, for example, basic moral premises? Third, there are a number of questions about the standard of justification involved. The main issue here is who counts as a member of the public to whom justification is owed. In one sense, the answer is straightforward; the exercise of political power must be

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justifiable to everyone over whom power is exercised. But ‘justifiable to all’ cannot mean ‘accepted by all’, because many will never have thought about the matter, and some will not care about the moral basis of laws at all. Justifiability to each member of the actual public must be cashed out in terms of reasonable or otherwise qualified acceptability, which raises the question of what the standard of qualification is. There is enough room for independent variation in these dimensions that we can imagine a plethora of principles of public justification.50 The range of plausible principles is much smaller than the range of possible principles. One can make public reason seem silly by specifying it as a legal restriction on speech enforced by an Office of Public Reason staffed by bureaucrats with advanced training in Rawls Studies. Obviously, Rawls was not proposing that his country rescind the First Amendment to its constitution. His principle of public reason was not a legal restriction on what citizens can say to one another in public, but a normative restriction on the grounds upon which they should act, as citizens, when making (fundamental) political decisions.51 A normative restriction on what citizens say to one another follows, but only in the context of advocacy as part of a decision-making procedure. If it is wrong to make decisions on nonpublic grounds, it will normally52 be wrong to make non-public arguments in public, though citizens must have the legal freedom to make such arguments, as part of their equal basic liberties. The dominant Rawlsian approach assumes that public reason is meant to guide citizens’ deliberations. It is conceivable, however, that the decisionprocedure that maximizes the making of publicly justifiable laws is not one in which citizens themselves apply the principle of public justification. The publicly justifiable exercise of political power might best be achieved by the clever design of democratic institutions, without citizens being under any duty of restraint within this scheme of rules. Gerald Gaus and Kevin Vallier have recently argued for such a view.53 Laws are proper only if acceptable to all qualified points of view, they maintain, but citizens need not follow this standard in deciding what to say and do. It is the designers of institutions who must have the principle in mind, as they craft political procedures to maximize the making of publicly justified laws by citizens and law-makers who aim at various personal and comprehensive objectives. This indirect form of justificatory liberalism involves a moral division of labour analogous to that which obtains in Rawlsian conceptions of distributive justice, where citizens seek their various personal goals within the framework of institutions that aim to satisfy the two principles of justice. I may vote for

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policies that raise the position of the least well-off, but choose my career based on my own interests. Similarly, one might think that so long as the system is designed to maximize the making of publicly justifiable laws, I am free to pursue the enactment of comprehensively justified laws. There is a disanalogy here, however. In the case of economic institutions, we face a conflict between two legitimate goals– advancing our own interests and advancing the interests of others. While justice makes claims on personal conduct, it cannot be the sole purpose that people can rightfully pursue, in their daily lives. Egalitarians such as G. A. Cohen concede that individuals must have a personal prerogative to pursue individual goals; ‘we are not nothing but slaves to social justice’.54 It is incoherent to imagine that everyone could be under a duty always to do nothing but aid the least well off, or equalize resources, just as it is incoherent to think that everyone could always be under a duty to do nothing but maximize utility. For why is it important that we maximize utility, or aid the least welloff? Only because people have personal goals and projects, and it is good (other things equal) that they should have the opportunity to realize these goals. But if everyone were always just trying to maximize utility or increase the lowest social position’s share of social primary goods, no one would be pursuing any goals or projects of their own. Justice is the first virtue of social institutions, but it cannot be mandatory that individuals make it their sole goal, because it presupposes that individuals have non-justice concerns whose fulfilment matters. Individuals can rightfully have personal goals distinct from the principles of just institutional design. In contrast, if one believes that laws ought to be publicly justifiable, there is no legitimate interest on the other side of the equation, when considering the analogous division of labour for differences of comprehensive doctrines. If laws ought to be publicly justifiable, then my interest in enacting truly,that is, comprehensively justified laws is not a legitimate political interest that we need to balance against the concern for having publicly justifiable laws. For this reason, we cannot say that my responsibility is only to support institutions that promote public justification, leaving me free to pursue comprehensively justified laws within this framework. I am free to pursue my own comprehensive doctrine in my own life, not politically – at least if the principle of public reason is justified. The only way an indirect approach to public justification can be coherent is as an esoteric doctrine, known to the few but ignored by the many. This is an ingenious possibility – a non-public doctrine of public justifiability. The focus in this book, however, will be on principles of public justifiability that are meant to guide the conduct of citizens as well as officials.

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3 The reasons-for-decisions frame versus the coercion frame The most important question to ask when specifying the demand for public justifiability is what exactly it is that must be publicly justifiable, and what happens when none of the available options meets with the requisite unanimity. In the literature on public justification, the principle has been characterized as applying to a wide range of things, including coercion, social arrangements, political decisions, principles of justice and political regimes.55 Underlying this apparent complexity is one fundamental issue, which is whether we understand public justifiability to require decisions to be justifiable in terms of unanimously acceptable reasons, or coercion to be unanimously acceptable, on the basis of whatever reasons each qualified point of view accepts. In the first account, it is the reasons that lie behind our decisions that must pass the qualified acceptability test, otherwise we exclude the reasons in question from our decision-making. In the second, it is that the laws themselves must pass the qualified acceptability test, otherwise we refuse to enact any law, in the domain in question. While many variations of the two basic ideas are possible, considering them in their pure form will help clarify many of the debates about public reason. To whatever set of options a unanimity requirement is applied, it must involve a default that is accepted if no option receives unanimous approval.56 The crucial point that distinguishes the reasons-for-decisions and coercion views is where they locate the default, deviation from which requires unanimous qualified acceptability. If one emphasizes that it is the exercise of political power that must be publicly justifiable, and so defines public justifiability as a constraint on the state’s coercive action, one will be led to construe the default as being inaction or, more specifically, non-coercion – not having any enforced rule, on the matter at hand. According to this view, the principle of public justification involves a presumption against coercive state action, defeasible only by multi-perspectival acceptability. This presumption is not just a tie-breaker; even if the majority thinks the case for having a rule is clearly stronger, we should default to not having a rule so long as some qualified point of view thinks the case against having a rule is stronger. With the reasons-for-decisions view, in contrast, the unanimity criterion is applied at the level of reasons, with a default of exclusion from consideration. In this case, the presumption is not against state action but against including a reason in one’s calculation of where the balance of reasons lies. In this model, the

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principle of public justifiability is a source of what Joseph Raz calls ‘exclusionary reasons’.57 Raz distinguishes ordinary, ‘first-order’ reasons for action from ‘second-order’ reasons for action, which are reasons to act for particular reasons, or, in the case of exclusionary reasons, reasons not to act for particular reasons. Normally, one (first-order) reason outweighs another, and we act on the balance of reasons. In the case of exclusionary reasons, the second-order reason excludes the first from consideration. One example of such a reason occurs in relationships of authority. Soldier Jeremy is ordered by his superior to steal a van, Raz imagines. Jeremy does not weigh the fact that he has been ordered to steal the van against the reasons he sees for not stealing the van. The point of the order is that he must not act on his own judgement about the balance of reasons. Instead, he has an obligation to obey his superior, regardless of how the reasons may seem to him. Promises have a similar structure, according to Raz.58 The ideal of public justifiability provides a particular kind of exclusionary reason. The excluded reasons are excluded because they are the subject of reasonable disagreement – the clash of religious, philosophical or moral doctrines. According to this interpretation, the idealized unanimity requirement is framed in terms of a presumption against inclusion in deliberation. If it is reasonable both to believe and not to believe the reason in question, it is excluded (unless saved by higher-order unanimity).59 Excluded reasons are not taken to be false nor irrelevant. Richard Marceau was not denying the truth of the theological views he was questioning. Nor was he saying that the views in question were simply irrelevant, as one might say that the distance of the earth from the sun is irrelevant to the definition of marriage. There is no need to exclude answers to that question because they are, in truth, politically irrelevant. The same cannot be said for questions such as whether God exists, whether there is such a thing as sin, or in what way life is sacred. Were it not for the fact of deep reasonable disagreement and the principle of public reason, how one answers such questions would naturally affect one’s political positions. When a reason is excluded by the principle of public justifiability, it would otherwise be relevant, but must be considered out of bounds due to the principle of public reason. In the case of the coercion model, there is a presumption against having a coercive law L, defeasible by unanimous idealized acceptability, that is, we accept ¬L unless there is reasonable unanimity in favour of L. In the case of the reasonsfor-decisions model, both reason R and its negation ¬R are reasons, and there is no presumption for one as against the other. It is this symmetry of exclusion

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that distinguishes the denial of admissibility from the denial of truth. True, one could imagine operating on the rule that one will consider R to be true and act on this basis unless ¬R can be proven beyond a reasonable doubt. One might decide to presume that God exists, for example, unless it can be proven that God does not exist. Such a presumption might be a plausible response to uncertainty, but it would not involve the distinctive idea of public justification. If there is reasonable disagreement about whether God exists, the reasons-for-decisions version of the principle requires that we not include either the affirmation or the denial of God’s existence in the grounds of our political decisions. The idea is to bracket disagreement, not to set one side of a disagreement as the default basis for action. If one adopts the reasons-for-decisions frame, one will naturally be led to require qualified acceptability for only some kinds of reasons. Agreement about what reasons are public need not imply agreement about what policies are publicly justified. People might disagree about the historical, political or sociological facts on the ground, and so, disagree which public reasons apply to the situation at hand. They might disagree about whether a particular public reason favours or opposes legislation, because of disagreement about the likely consequences of legislation. They might rank or weigh competing public reasons differently, or interpret them differently in hard cases. One question that arises on a reasons-for-decisions approach is whether such reasonable but reasonably contestable judgements about the weight, application or interpretation of shared, public reasons are admissible grounds for decision. If these judgements are not admissible, public reason will often be indeterminate. Interpretations of public justification framed in terms of decisions and exclusion of reasons will therefore draw a distinction between the underlying moral or philosophical principles or values that motivate legislation and judgements about their relevance, ranking or application, in disputed factual circumstances. Only the former need pass the reasonable acceptability test. The distinction between the reasons and the coercion framings of the idealized unanimity requirement is closely related to the distinction between consensus and convergence models of public justification.60 The pure coercion view requires unanimity about a proposed law based on each qualified point of view’s total balance of reasons, rather than on the balance of shared reasons.61 Since each doctrine accepts some different reasons, the coercion view demands convergence from different perspectives. In contrast, the reasons view requires unanimity about reasons, while permitting disagreement about where the

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balance of public reasons lies.62 That the two are not equivalent can be seen in the fact that it is conceivable (if not likely) that all reasonable or otherwise qualified points of view would support a given law, but for different reasons, even while the balance of public reasons was negative, which would be a case of convergence without consensus. Conversely, it is not only conceivable but likely that in certain cases, the balance of reasons that all qualified points of view accept will be positive, but that some qualified point of view objects to the proposal, based on the full set of reasons it accepts, which would be a case of consensus without convergence.63 My choice of the term ‘coercion’ for one of the two models of public justification involves a potentially misleading simplification, which is that it focuses on what is arguably only one form of public action. Perhaps even non-coercive actions on the part of the state ought to be publicly justifiable, and if they are not we should default to inaction – not having a law or policy on the issue at hand. Colin Bird has articulated a view of this sort in a very interesting recent paper.64 His position cannot be called a coercion model of public justification, but it still contains a presumption against state action defeasible only by qualified unanimity. Arguably, then, I should be contrasting the reasons-for-decisions frame with the action frame. I will nonetheless persist in referring to the coercion frame because it has been the dominant conception of public justification that applies the qualified unanimity requirement to action as opposed to reasons for decisions. Bird raises an interesting challenge to the coercion framing of the principle of public reason. First, some state actions are not coercive, but may nonetheless be objectionable because not publicly justifiable. The example he provides is that of a state-run lottery, the proceeds of which are used to promote a particular ideal of the good life. Second, some people not coerced by a particular law may have reasonable objections to it, and their objections ought to count. The example he provides is that of bachelors opposed to laws against abortion. Bird concludes that the demand for public justifiability should apply to all public action, on grounds of the value of democratic co-authorship; laws are enacted in the name of all, and ought to be an emanation of the will of all, otherwise some citizens will be alienated from authorship. Defenders of the coercion view might question whether Bird’s perfectionist lottery is truly non-coercive.65 Alternately, they might concede that the principle should apply to all state action, coercive or not, but argue that where state action is coercive, this coercion is an important additional reason that the principle applies. Public reason requires

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that with respect to at least some political decisions, one not invoke or appeal to moral considerations one believes true, because although reasonable, they are also reasonably rejectable. This restraint involves a moral sacrifice, in terms of the realization of what one takes to be genuine values. The question is whether democratic authorship by itself is sufficient to motivate that sacrifice, or whether we must appeal to the distinctive evil of being coerced to do something you reasonably think you should not do (or coerced not to do something that you think you should do). I am sympathetic to Bird’s claim that alienation from authorship is an important consideration independent of whether the actions in question are coercive, or whether one is oneself coerced by these actions, but I think that it is the reasons-for-decisions frame that best captures this value. Although Bird denies that coercion is the only or the most important factor triggering application of the public justifiability requirement, his version of the principle still frames the unanimity requirement as a constraint on state action, with a default of inaction.66 If we switch to the reasons-for-decisions frame, the idea of common authorship can be recast. Instead of maintaining that laws should be invulnerable to reasonable rejection, we can claim that our decisions about whether or not to have a law ought to be made on the basis of public reasons. People will often disagree about where the balance of public reasons lies, and what reasons count as public. Yet, if the decision results from a process of genuine deliberation about what reasons are public and what policies are best supported by public reasons, then citizens can see themselves as being joint authors of the decisions in question, in the sense that the decision resulted from a process of collective reasoning – reasoning about what they collectively think, as citizens, about the matter at hand. This is the argument I will develop in Chapter 5. The distinction between the coercion and reasons-for-decisions frames also invites a question about the role of coercion in the reasons frame. On the reasonsfor-decisions frame, we need to know what decisions the principle applies to. My choice of toothpaste need not be publicly justifiable, presumably because it does not involve coercing anyone else. If it is our decisions about coercion that have to be publicly justifiable, aren’t we back to the coercion framing of the principle? No. Coercion is indeed the chief example of something that must be publicly justifiable, but it is our decisions about whether or not (or how) we will coerce each other that must be publicly justifiable, on the reasons model. It is not the case that if coercive state actions are not acceptable to all qualified points of view we default to not coercing. The key feature of political power, on the reasons’ view, is that it is power exercised by a form of association that is

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not, and cannot be, wholly voluntary. Most people do not choose which political society they will belong to; they are born into a particular society, shaped from birth by its institutions and its culture, and at best, have the option of leaving, upon reaching age of maturity, if some other country will take them in, an if they can bear to leave their family and relations behind. A political society claims final authority over the legal rights and obligations of those residing within its borders, including the authority to determine when coercion may and may not be exercised. Citizens are not only forced to comply with the state’s rules, they are forced to support the enforcement of these rules, and forced not to enforce whatever moral rules they think justified, if these differ from the laws in place. Decisions about whether or not and how we will coerce each other, via the state, must certainly be publicly justifiable. Yet, at least according to the reasons view, public justification consists in making these decisions on public grounds, not on setting collective inaction as the default, and demanding qualified unanimity for departures therefrom. The coercion and reasons-for-decisions models of public justification have very different implications for policy. If it is laws that must be reasonably nonrejectable, with no-law the default, then it is going to be difficult to justify the regulation of behaviour. Daniel Weinstock argues that public reason is, for this, biased against conservative religious doctrines. Citizens with ‘moralizing’ conceptions of the good bear a heavier burden than do citizens with ‘permissive’ conceptions of the good, because moralizing citizens have to justify their preferred policies with respect to permissive values, whereas permissive citizens do not have to justify their preferred policies with respect to moralizing values.67 In the coercion conception of public justification, this perception is understandable. If it is our reasons for our political decisions that must be reasonably non-rejectable, however, the qualified acceptability requirement may rule out comprehensive ideals that militate against constraining citizens’ conduct. Consider the question of how to draw the limits of basic individual liberties, taking into account the legitimate public interest in the protection of life and property. Mill’s ideal of autonomous individuality would presumably help to justify a broad range of freedom of speech and expression, when weighed against Hobbesian concerns about threats to public order and security. If Millians are appealing to illegitimately comprehensive conceptions of autonomy in arguing for free speech, over the objections of Hobbesians arguing for limitations on free speech based on security, then Hobbesians may have a valid objection, based on the principle of public reason, to the absence of restriction. When presented

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as a constraint on reasons, the principle of public reason is not necessarily a libertarian principle, because non-public reasons for state inaction are excluded from decision-making along with non-public reasons for state action. Socrates’s view that non-enforcement of contracts would discourage materialism ought not be able to trump a conclusive public case for contract law.68 Whether the overall effect of adopting the principle leads one to endorse more or less collective coercion than one would otherwise have endorsed will depend on the details of one’s comprehensive doctrine. The fact that the reasons-for-decisions conception of public justification does not involve a general presumption against state regulation of conduct may seem to make its coercion counterpart more attractive. For example, on the coercion approach, the Millian objection to hate speech laws is decisive. That the objection is (by assumption) based on non-public reasons is irrelevant; what matters is that the Millian point of view is reasonable, and that it reasonably rejects the law in question. The coercion conception of public justification also has a simple answer to laws against abortion, which is that such laws are illegitimate because reasonably rejectable. The virtue of the coercion framing of the principle is that it does not simply object to paternalistic coercion, which would not be sufficient to rule out restrictions on abortion that are motivated by the welfare of the foetus; it objects to coercion as such, when reasonably rejectable. It is also this feature that threatens to undercut state efforts at achieving egalitarian conceptions of social justice, at least if one considers redistribution of income or wealth coercive.69 If the demand for public justifiability applies at the level of reasons, this worry is less pressing. Limiting the grounds upon which we make choices about the basic structure of society does not involve a heightened standard of justification for state action, but simply a narrower basis upon which to decide whether or not the state should act. Although the reasons-for-decisions model is less subject to the social justice objection, it is vulnerable to two other objections. One objection (to be discussed in Chapter 5 Section 6) is that the principle is self-defeating, since it enjoins avoidance of controversy and is itself controversial. When framed as a constraint on coercion, the issue of self-application (reflexivity) does not arise. Because the coercion interpretation of public reason applies at the level of laws, with a default of collective inaction, and not at the level of reasons, it cannot apply to itself, and therefore cannot refute or exclude itself. Another common worry about public reason is that very few reasons might pass the test of unanimous reasonable acceptability, leaving us unable to make important political decisions; in this

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case, public reason would be ‘incomplete’.70 The incompleteness objection only applies to accounts of public justification that frame the principle as a constraint on reasons for decisions. Because the coercion interpretation applies the idealized unanimity requirement to laws directly with a default of inaction, rather than to reasons for decisions with a default of exclusion, there is no possibility of not being able to make a decision, on this version of the principle. By default, the decision is not to act (not to have a law), and this default can be defeated only by unanimous agreement of qualified perspectives (based on their total sets of reasons). The two models of public justification also fit naturally with different justifications of the principle. The two main arguments for public reason I take to be the arguments from respect for persons and the argument from civic friendship or political community. As we will see in Chapter 3, the need to respect persons as free and equal moral agents has generally been interpreted to mean that we may engage in coercion only when it is publicly justifiable, that is, not reasonably rejectable. In contrast, constraining the reasons upon which we base our collective decisions is a natural way of constituting ourselves as a political community, I will argue in Chapter 5, given the fact of ongoing reasonable religious and moral disagreement. So far, I have considered two main ways of framing the reasonable or qualified acceptability criterion that is at the heart of the principle of public justification – as a constraint on reasons for political decisions, with a default of exclusion from deliberation, and as a constraint on state coercion itself, with a default of not exercising coercive power. One might wonder whether there is a third possibility, which is to frame public justifiability as a constraint on state action directly, but with a default of equal treatment. Rawls’s intuitive argument for the difference principle would be the model for such an account of public justification.71 Deviations from equality must meet with unanimous approval on the part of representative members of the different social positions. Inequalities are acceptable to the better off in virtue of their being better off than others, and acceptable to the worse off just in virtue of their being better off than they would be with less inequality. This argument involves a unanimity criterion with an equality default, but it is unanimity across social positions based on a standardized moral point of view, not (except indirectly) unanimity across different reasonable comprehensive doctrines. The parties deliberate in terms of a set of social primary goods, which are conditions and resources that are (a) strongly influenced by our choice about the basic structure of society, and

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(b) important to protecting the basic interests of citizens as members of a pluralistic, democratic order. The moral perspective from which inequalities across social positions are assessed is that of citizenship, not that of true human flourishing or well-being. Thus, beneath Rawls’s unanimity criterion for departures from equality lies a more fundamental unanimity criterion on reasons for decisions. A unanimity rule for departures from equality when reasoning only from the basis of social primary goods is quite different from a unanimity rule for departures from equality relative to the full diversity of reasonable moral perspectives. The rule that we can deviate from an equal distribution of social primary goods only if all reasonable moral perspectives endorse such deviation would put the most extremely egalitarian view that is still reasonable in the position of dictator, with a veto over any changes from its preferred option of equality. Rawls never endorsed such a strong position, according to which the objections of the barely reasonable egalitarian trump Pareto improvements.

4 Preliminary objections to the reasons frame In this section, I respond to some preliminary objections to the reasons-fordecisions model of public justification, so as to clarify its structure.

4.1 Is justificatory neutrality impossible? In Section 3, I argued that when framed as a constraint on reasons for decisions, the principle of public justifiability provides a particular kind of exclusionary reason – a reason for not counting pairs of opposing reasons, in one’s deliberations, when they are the subject of deep reasonable disagreement. The symmetry of this exclusion is meant to achieve a kind of justificatory neutrality.72 It may seem doubtful, however, that this ‘epistemic abstinence’,73 or ‘restraint’74 is possible. Perhaps any choice purportedly based on a reasonable balance of public reasons must tacitly presuppose an answer to a reasonably disputed religious or philosophical question. Perhaps every truth claim ultimately depends upon all others, just as every definition of a word ultimately depends upon the definition of all others. Our reasons presumably do have a web-like structure of justificatory support and implication, but the demand for public justifiability is not a descriptive claim. The idea of public reason is that we must consider irrelevant to policy decisions reasons that would otherwise be relevant,

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were there no valid principle of public reason. No matter how densely woven the web of reasons, if the demand for public justifiability is valid, then we must treat certain otherwise connected reasons as if they were disconnected. For example, it is not uncommon to claim that the issue of same-sex marriage cannot be resolved without having recourse to non-public reasons. According to Michael Sandel, proponents of liberal neutrality believe that ‘we can resolve arguments about justice and rights without taking sides in moral and religious controversies’, but the case of same-sex marriage shows that this avoidance thesis is false.75 Carlos Ball concurs with Sandel that ‘a coherent and effective case for same-sex marriage, then, must “engage rather than avoid the comprehensive moral and religious doctrines at stake”’.76 If homosexual conduct really were degrading, as its critics claim, society ought not dignify it by recognizing samesex marriages, Ball maintains. Kyla Ebels-Duggan has also recently argued that public reason may be indeterminate with respect to the issue of same-sex marriage, because there may be no resolution that does not appeal to the truth of some reasonable but reasonably-contestable worldview (and so deny others).77 Recognizing only heterosexual unions would not be justified, as this policy would ‘presume the falsehood of the worldviews of some reasonable citizens’. Yet, recognizing both hetero and homosexual unions as marriages would signal that there is no moral difference between them, which also conflicts with the worldview of some reasonable citizens. ‘Either way, the policy is not justified to some reasonable citizens’.78 It is not true, however, that any decision in favour of same-sex marriage implies that doctrines opposed to same-sex marriage are false. Suppose for the sake of argument that homosexual conduct involves a regrettable turning away from the true purpose of human sexuality, which is the uniting of the sexes in a potentially procreative union, open to the gift of new life. Suppose at the same time that this claim about the inherent moral status of homosexuality is non-public, because reasonably contestable and not saveable via higher-order unanimity. Because the balance of public reasons supports same-sex marriage, one ought to support this policy despite the fact that homosexuality is by assumption not fully spiritually and ethically equivalent to heterosexuality. In these circumstances, a decision in favour of same-sex marriage would not imply that comprehensive doctrines opposed to same-sex marriage are false, just that they are not public. Sandel also argues that some of the main defences of same-sex marriage appeal to allegedly non-neutral considerations about the special value of long-term, intimate, two-person commitments, and about the equal value of same-sex and opposite-sex

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commitments.79 The question is whether appeals to non-public considerations are necessary to make a judgement about same-sex marriage, however, not whether such appeals are common. Even if we accept that it is illegitimate to promote monogamous two-person marriage on the grounds that this type of relationship is intrinsically superior to all others, we need to consider whether there are any other public reasons that support maintenance of the institution of marriage. Sandel does not canvass the reasons that one might think are public, and speak in favour of marriage (same-sex or otherwise) – a task I take up in Chapter 6. Sandel concludes that the only truly neutral policy would be for the state to get out of the marriage business altogether.80 If we adopt the reasons-for-decisions model of public justification, this conclusion does not follow, because public reason’s neutrality involves an exclusion of contested premises, not a refusal to adopt any law that some reasonable comprehensive doctrine disagrees with, based on its total balance of reasons. The idea that only abolition of marriage would be neutral does follow, however, from the coercion or state-action framing of the principle, according to which any law must meet with the approval of all qualified perspectives, otherwise we default to not having any common policy or rule. If it is not unreasonable for someone to prefer no civil marriage at all to same-sex marriage, for either conservative or libertarian reasons, but it is also reasonable to reject opposite-sex-only marriage, we must default to not having a public institution of marriage at all. The coercion model suggests that no institution of civil marriage will pass the test of being acceptable to all reasonable points of view, forcing us to default to not having any such institution.

4.2 Does unanimous acceptability add anything to the idea of reasonableness? The second objection to the reasons framing of the principle is that the idea of unanimous (reasonable) acceptability is redundant, or pointless. James Bohman and Henry Richardson have recently argued that the idea of ‘reasons that all can accept’ is empty, and that the criterion of unanimous reasonable acceptability does no work, because the idea of unanimously acceptable reasons simply acts as a placeholder for the substantive normative ideas that define reasonableness.81 Rawls’s criterion of reciprocity, his liberal principle of legitimacy, and his duty of civility all turn on the question of whether reasons ‘cohere with the constitutive requirements of reasonableness’,82 such as recognition of burdens of judgement, acceptance of the fact of reasonable pluralism and conceiving of society as a fair

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system of cooperation between free and equal persons. Political liberalism does not depend on a demonstration that each reasonable comprehensive doctrine happens to accept these reasons, they argue. The idea of reasons that all can accept ‘drops out’, making the notion of qualified acceptability ‘otiose’.83 It is misleading, however, to characterize the Rawlsian standard as coherence with reasonableness. A reason is consistent and coheres with reasonableness if there is no contradiction in asserting that reason and the constitutive requirements of reasonableness together. It could be that both the reason and its denial are consistent with reasonableness, however. In contrast, other reasons may be implied by the core requirements of reasonableness, such that their denial would be inconsistent with reasonableness. For example, suppose that (i) the criteria of reasonableness are A, B and C; (ii) reason D is implied by A, B and C; (iii) reason E is merely consistent with by A, B and C, as is its denial ¬E. If the idea of ‘reasons all can accept’ really dropped out, we would replace the qualified acceptability requirement with the assertion of the truth of A, B and C, and then go about arguing on the basis of all of the reasons implied by or merely consistent with the criteria of reasonableness: reasons A through D, plus E or ¬E, depending on one’s views. In contrast, if our goal is to make decisions on the basis of reasons that all can accept, we will make our decisions on the basis of reasons A through D only, since while reasonable, E and ¬E are both reasonably rejectable. Replacing the idea of reasons all can accept with assertion of the truth of the criteria of reasonableness would mean abandoning the exclusion of reasons that defines public justifiability. Bohman and Richardson’s argument does not distinguish what we are aiming at from how we get there. It is true that the Rawlsian procedure for determining what reasons are public is not to canvass the full range of reasonable comprehensive doctrines in order to see what views they share. There is an indefinitely large number of possible reasonable comprehensive doctrines, making it impossible to be able to identify where they all overlap. The main Rawlsian approach to constructing public reason is to work from the core ideas of reasonableness outwards, constructing a set of public reasons by elaborating on the ideas any doctrine would have to accept in order to count as reasonable. It remains that case, however, that the goal of this construction is to identify reasons all can (reasonably) agree on. Even if the idea of multiperspectival acceptability were otiose as a procedure for determining what reasons should count as public, it would not be otiose as a description of the goal we are aiming at, in excluding reasons from the grounds of deliberation. Moreover, there is an alternate approach to determining the contents of public reason that serves as a complement to Rawls’s. Rather than trying to characterize

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which reasons are public based on the constitutive elements of reasonableness, we can identify which reasons are not public, by showing that some reasonable comprehensive doctrine rejects those reasons. Of course, we still need an account of the constitutive elements of reasonableness to classify a doctrine as such. The point is just that the impossibility of identifying the overlap in the contents of all possible reasonable comprehensive doctrine presents no obstacle to showing that a particular reason is not part of that overlap, since to show that, all we need to do is show inconsistency with some particular reasonable comprehensive doctrine. This negative approach to defining the contents of public reason fits the way the principle tends to be used in political debate, as described in the opening pages of the chapter.

4.3 Is public reason cognitively unrealistic? A final preliminary objection to the principle of public justification, when framed as a constraint on reasons for decision, is that people will not be able to apply it with any consistency or accuracy, because distinguishing public from non-public is cognitively too demanding. It is unrealistic to expect ordinary citizens to be able to survey all of their beliefs, divide them up into the categories of public and non-public, and then figure out what implications their public beliefs have, when taken by themselves, in isolation from their non-public views. It is hard enough to figure out what to think about an issue such as abortion anyway. Asking citizens what they think based only on the views everyone can reasonably be expected to share is wildly rationalistic. I do not find this objection persuasive, for three reasons. First, the fact that no one can fully to live up to the ideal is compatible with citizens doing better or worse. Second, the norm need not be that one must first conduct a comprehensive survey of one’s reasons, sorting every last belief into the categories of public or non-public, before making any political decision. The norm could rather be that one presumes one’s reasons public until a challenge to the publicity of one of those reasons is raised. It is not unrealistic to ask citizens to bracket certain specific reasons, as for example, claims about the sinfulness of homosexuality. It will be controversial whether such views should be bracketed, but controversy does not show that it is cognitively impossible for citizens with this belief to figure out what laws and policies they would think best if they could not assume that such conduct was sinful. Finally, citizens do not need to figure out what should count as public and non-public out in isolation. They will rather figure it out in deliberation with other citizens, in response to objections such as

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those canvassed in the opening pages of the chapter. The norm of public reason is one that exists in political practice. The problem is that it is controversial whether the norm is justified, and whether particular reasons ought to count as public. In trying to answer these questions, political theory is not placing unrealistic cognitive demands on ordinary citizens, but helping to clarify existing political norms. It will be controversial when someone has failed to live up to the principle, but the complexity we witness in this domain does not distinguish the topic of public reason from any other in normative political theory. Discussions of liberty, equality and other basic concepts exhibit enormous complexity, but we do not conclude that citizens should therefore ignore these values in their deliberations.

5 Looking ahead This chapter has explained the basic idea of public reason, and the two main ways of framing the principle. The next chapter explores various ways of justifying the principle: by appeal to freedom of conscience, democracy, anti-paternalism and equality. In each case I argue that the justifications are unsuccessful, no matter how the principle is framed. At the same time, the objections that have been posed to public reason based on the same values are also unconvincing, at least as far as the reasons-for-decisions framing of the principle is concerned. Chapter 3 then takes up a more fundamental and more powerful argument for public reason, based on respect for persons as moral agents. The argument from respect has generally been framed as an argument that leads to framing the principle as a constraint on coercion. Again, I argue that the justification is not successful, in part because it yields an implausibly strong side constraint against coercion. However, it may be possible to avoid this counter-intuitive implication by changing the level of policy description, merging initially separate decisions between action and inaction into one macro-decision between inaction and different aggregated actions. In the context of choices involving three or more options, unanimity in favour of having some common rule as against none at all can legitimate democratic choice between options that might initially have seemed to fail the qualified acceptability criterion. Chapter 4 examines this ‘higher-order unanimity escape clause’ from the excessively libertarian implications of the coercion framing of the principle. Chapter 5 presents my alternative justification for public reason, based on civic friendship. Chapter 6 then returns to same-sex marriage, in order to show how the ways of framing the principle apply to a specific policy debate.

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False Starts: Unsuccessful Justifications of Public Reason

The purpose of this chapter is to assess a range of common but unsuccessful justifications of public reason: freedom of conscience, democracy, antipaternalism and equal treatment. Freedom of conscience and democracy are also often cited as objections to public reason, but I will argue that the objections are no more convincing than the justifications.

1 Freedom of conscience The historical origins of political liberalism are generally said to be found in the European wars of religion and the subsequent development of theories of religious toleration.1 ‘[P]olitical liberalism applies the idea of toleration to philosophy itself ’.2 But can we derive the idea of public reason from freedom of conscience? At one point, Rawls did suggest that failing to respect the constraints of public reason involves violating basic liberties. Since many doctrines are seen to be reasonable, those who insist, when fundamental political questions are at stake, on what they take as true but others do not, seem to others simply to insist on their own beliefs when they have the political power to do so. Of course, those who do insist on their beliefs also insist that their beliefs alone are true: they impose their beliefs because, they say, their beliefs are true and not because they are their beliefs. But this is a claim that all equally could make . . . So, when we make such claims others, who are themselves reasonable, must count us unreasonable. And indeed we are, as we want to use state power, the collective power of equal citizens, to prevent the rest from affirming their not unreasonable views.3

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Those who decide a fundamental political question on the basis of their own, reasonably-rejectable comprehensive view are allegedly involved in imposing their beliefs and preventing others from affirming theirs. At the other end of the spectrum, opponents of public reason have argued that the principle limits freedom of conscience. The exclusion of non-public reasons from political decision-making allegedly involves an illegitimate restriction of the free exercise of religion, as well as unequal treatment of citizens of faith.4 Here, I will focus on the liberty claim, as I consider claims of equal treatment in Section 4. Political liberals overlook the fact that requiring citizens to deliberate in terms of public reasons may violate their religious commitments, Nicholas Wolterstorff argues. Many people believe that on political issues, they must act and vote on the basis of their religious convictions, and this belief about the duty to act on their religious views may itself be a religious conviction.5 Similarly, Andrew Murphy sees in the idea of public reason a Hobbesian attempt to circumscribe the rights of conscience. Hobbes was of the view that citizens could be compelled to profess adherence to religious doctrines, because uttering words is merely an external action, whereas conscience is a matter of internal belief. Over subsequent centuries, the scope of conscience has expanded to include the free exercise of religion, rather than merely the right to private belief.6 The principle of public reason reverses this trend, Murphy argues, diminishing citizens’ ability to affirm and act upon their comprehensive doctrine in public life, representing a retreat from earlier liberal arguments for freedom of conscience.7 Christopher Eberle turns Rawls’s own ‘strains of commitment’ against the demand for public justifiability, questioning whether parties to the original position can in good faith agree to make political decisions based on public reasons alone, knowing that should they turn out to be theists, it will limit their ability to put their religious convictions into practice.8 To assess these arguments, we need an account of religious liberty. Suppose to begin with that we use an unmoralized or descriptive sense of religious liberty, according to which one has religious freedom to the extent one lacks an obligation to refrain from acting according to the dictates of one’s religion, whatever they may be. The principle of public reason does limit this liberty, in one respect – those who feel obligated to vote on the basis of their religious convictions are not permitted to do so (assuming these convictions are reasonably rejectable). However, the absence of a recognized principle of public reason would limit this liberty in a different respect. The moral right to exercise political power on the basis of religious or comprehensive reasons implies the

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corresponding liability to have power exercised over oneself for religious or comprehensive reasons. Removing public reason’s limit on the free exercise of religion would impose another limit on the free exercise of religion, in the form of the duty to comply with laws grounded in religious convictions from which one reasonably dissents. If conscience is involved when religious reasons are employed in political decision-making, it is presumably involved on both sides of the equation, in both restrictions on religious authorship, and compliance with laws based on religious views. Without public reason, I would be religiously freer in one way, in that I would be able to vote my religious convictions, but less free in another, in that I would be subject to laws that express the religious convictions of others. We therefore cannot use the neutral, unmoralized sense of (religious) liberty to determine whether public reason is grounded in freedom of conscience. What we need is an account of religious freedom as a right to equal religious freedom, specified in a manner that is consistent with the rights of others – one that identifies specific protected choices or activities. ‘Freedom of religion consists first of all in the freedom to make up one’s own mind when answering religious questions’, Jeffrey Stout asserts. It would be a very thin freedom if the right only offered protection against being forced to reveal or forswear one’s beliefs, while permitting the state to ban speech contrary to the reigning orthodoxy (a ‘don’t ask, don’t tell’ approach to religious freedom). To be able to make up one’s mind in an informed way, one must be able to speak one’s mind and hear others speak theirs. Thus at the core of religious freedom lies freedom of thought and expression, Stout claims. Freedom of belief and expression without the freedom to act on one’s religious beliefs would still be too thin, however. Freedom of religion must also include the right to associate in worship (including the right not to worship at all), within the constraint of other people’s right to do likewise, without being subject to criminal penalties, exclusions from public office, denial of the vote, residential restrictions, and other such penalties.9 We can count even quite minor penalties or disadvantages as constituting interferences with freedom of religion, if these disadvantages are attached to associating in worship and professing one’s faith (or lack thereof) in public. So long as laws respect and protect this freedom to associate in worship, exclusion of comprehensive reasons from political decision-making would not restrict religious freedom, according to this definition. The principle of public reason leaves individuals morally free to profess their faith in public (immune from criticism on grounds of public reason) if they are simply arguing for their comprehensive religious views. People become subject to moral criticism on

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grounds of public reason only if they support or urge others to support laws that can only be justified by appeal to non-public reasons (or to oppose laws that are justified on the balance of public reasons). Not being morally permitted to exercise power over others on grounds of reason X does not violate my freedom to profess reason X, proselytize for X, or associate with others in the worship according to X. One might object that I have misspecified the right of religious freedom, and that if citizens are not permitted to argue and vote on religious grounds, their religious liberty is not as extensive as it might be. Yet, if the mere fact of not being permitted to vote on religious grounds limits freedom of conscience, we can ask why legislation based on non-public (e.g., religious) reasons does not also limit freedom of conscience. Removing public reason’s limit on the free exercise of religion would impose another limit on the free exercise of religion, in the form of the duty to comply with laws grounded in religious convictions from which one reasonably dissents. If public reason is not a violation of the right to equal religious liberty, might we not go further, and claim that public reason is implied by the right of religious freedom? Was Rawls right to suggest that exercising political power on the grounds of non-public reasons involves imposing one’s own beliefs, and preventing others from affirming theirs? No. Insisting on the truth of one’s religious or spiritual views when fundamental political questions are at stake does not necessarily mean denying others freedom of thought, expression or association, since many comprehensive views support such freedoms.10 Conversely, it is conceivable that one might want, for the sake of public order, to promote a religion whose truth one does not accept, out of a Hobbesian concern for social order.11 Those who for religious reasons oppose early term abortions do not necessarily believe that there should be a publication ban on pro-choice views. Nor is there any necessary connection between deciding a fundamental question according to one’s comprehensive views and according superior rights and privileges to those who hold those views. Catholics do not believe that only Catholics should be eligible for civil marriage, nor that those who object to early term abortions should receive some special benefit (exemption from abortion laws?). Designing a law or institution on the basis of some reason X does not necessarily imply forcing people to believe X, denying them the right to speak against X, or giving proponents of X more resources. One might object that my separation of religious freedom from public reason involves a threshold view of religious liberty. A society passes some

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significant threshold of religious freedom if it guarantees various basic rights for all regardless of religion – speech, association, voting, running for office, mobility, etc. Yet, such a society might still have policies that can only be justified by the goal of promoting adherence to the true religion, in which case, we might say that members of this society lack full religious freedom. Even if the laws in question are not that burdensome, they aim to influence the distribution of religious belief simply for the sake of increasing the proportion of the population that holds true religious beliefs.12 Thus the idea of religious disestablishment allegedly forbids government from taking positions on religious questions, from ‘saying’ that one religion is true and another false. It does seem objectionable for citizens to try to use the state to shift the distribution of religious views in the direction of what they take to be the truth simply because it is good for people to believe the truth (because it will save their souls, for example). Yet, not just any decision made on the basis of a religious reason involves the attempt to shift the distribution of belief in favour of this reason. Policies motivated by religious reasons may simply aim at what is right, in the eyes of those with the views in question. In the eyes of its advocates, opposite-sex-only-marriage is a policy that is morally correct, irrespective of its effect on the distribution of religious opinion. Even if a ban on same-sex marriage would make conservative churches less popular, it would be right, in their view. In what sense do decisions or laws justifiable only by religious reasons ‘impose’ religion, in those cases where they do not restrict people’s right to associate in worship or speak their consciences, and are not motivated by the goal of encouraging belief in the true religion? What meaning can be given to ‘imposing religion’ in this case, except for that of ‘making a decision/exercising power based on religious reasons’? And if there is imposition in this case, is there not also imposition involved in public reason’s requirement that citizens not vote or advocate on the basis of their (reasonably contestable) religious convictions? Public reason cannot easily be defeated by appeals to religious freedom, but nor can it be justified by freedom of conscience in any straightforward way. The argument thus far has assumed a broadly Rawlsian conception of public justification as a constraint on the reasons for political decisions. Recently, however, a series of critics of have argued that we are wrong to require deliberation on the basis of shared reasons.13 Public justification can instead be achieved via convergence on conclusions about law or policy from different religious or philosophical perspectives. As explained in Chapter 1, what its advocates call convergence justification, I am referring to as the coercion framing

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of the principle of public justifiability. The coercion model applies the qualified acceptability requirement to coercion state action directly, with a default of inaction. So long as all qualified doctrines agree with the action in question, it does not matter if they do so for different reasons. And if even one qualified doctrine does not agree, based on its total balance of reasons, that action is ruled out. Its advocates claim that the convergence (i.e., coercion) model is friendlier to religion in public affairs than is the traditional Rawlsian view. Religious reasons may form part of a convergence of reasonable views that justifies state action even when the balance of public reasons opposes such action. I will call this the positive role for religious reasons, which applies to the case of convergence without consensus – qualified unanimity in favour of a law despite the fact that the balance of reasons shared by all qualified points of view is negative. Religious reasons may also defeat the case for state action even if the balance of public reasons is positive. I will call this the negative role for religious reasons, which applies to the case of consensus without convergence – some qualified view rejects the law in question, despite the fact that that balance of reasons accepted by all qualified doctrines is positive. The positive role that the coercion framing of the principle affords to religion is quite limited. Laws may be grounded in reasonable religious doctrines only where all reasonable religious, non-religious and irreligious views also support the policies in question, which is likely to be rare. There will rarely, if ever, be convergence in favour of state action when there is not also a preponderance of public reasons in favour of state action, since any reasonable dissenting view is sufficient to block the exercise of political power. Moreover, it is open to advocates of the reasons-for-decisions model to concede that if there is no reasonable perspective that objects to the law in question, there is no need for the decision to be made on the basis of shared reasons; it is when we disagree that we need to retreat to shared reasons. The negative role the coercion model affords to religion is much more significant. The rejection of consensus without convergence opens up room for any reasonable religious doctrine to act as a defeater, which is likely to be common, but similarly opens up room for reasonable non-religious and irreligious doctrines to act as defeaters. It is easy to think of situations in which a positive balance of public reasons could be trumped by a single negative balance of total reasons, on the part of a particular reasonable comprehensive doctrine. Perhaps, to use Locke’s example, some restriction on the slaughter of cattle could be justified based on the balance of shared reasons, but not on the total

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balance of reasons according to some particular point of view, for example, a religious sect in which the slaughter of calves plays an important role.14 Under the coercion framing of the principle of public justifiability, reasonable religious points of view would not be forced to comply with coercive laws they reject. However, this freedom is offset by a corresponding liability – an inability to act on religious reasons that a support a given law even if the law is justified on the balance of public reasons alone. In some situations, the total balance of reasons from a particular religious perspective will happen to coincide with the balance of public reasons; for these religious views, in these instances, public reason will be costless. Under the coercion interpretation of public justification, however, a positive balance of public reasons can be defeated if the law is rejected by a single reasonable religious or irreligious point of view. Suppose, for example, that, as Rawls suggested, a reasonable balance of public reasons supports the right to abortion prior to some stage of pregnancy (e.g., the second trimester), and permits restriction of abortion thereafter.15 There is likely to be a reasonable moral point of view that rejects such restriction, based on its total set of reasons (public and non-public). If so, it would not be permissible to have any law against abortion, not even the moderate restrictions on abortion Rawls conceded might be justifiable on the basis of public reasons. As in the case of the reasons-for-decisions model of public justification, the coercion framing of the principle limits people’s liberty to do some things, thereby protecting their liberty to do other things. Everyone is free to block a law that contravenes their reasonable religious point of view; no one is free to impose a law supported by their reasonable religious point of view if someone else’s reasonable religious or irreligious point of view objects to it, even if the balance of shared reasons is positive.

2 Democracy The idea of public reason has also been justified on grounds of democracy. Some argue that appeals to non-public reasons threaten citizens’ status as equal co-rulers. In Joshua Cohen’s view, the demand for public justifiability is really a principle of democratic inclusion. Religious liberty has generally been taken to be a liberal constraint on democracy, since it does not appear to have any necessary connection with the idea of a democratic decision-procedure. To the contrary, Cohen argues that if we prevent others from fulfilling religious

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demands for reasons that they are compelled to regard as insufficient, we ‘deny them equal standing as citizens’. This denial of full membership is ‘a failure of democracy’, and a way of excluding ideological minorities from ‘the people’.16 Others describe public reason as a condition for collective autonomy, and an element of a properly deliberative democracy. Rawls claimed that ‘the form and the content of [public] reason are part of the idea of democracy itself ’.17 He argued that the citizens of a well-ordered society are autonomous in complying with principles adopted in the original position, which fairly represents each citizen as free and equal. Rawls stressed that the autonomy achieved by citizens self-consciously acting on principles identified via this procedure was ‘a political and not an ethical value’ because it was ‘realized in public life’ but did not apply to ‘the whole of life, both individual and social’.18 Achievement of autonomy depends on the publicity of the political conception of justice. In the ideal case, citizens know what the principles of justice are, and know the justification of these principles, or at least have it accessible to them, if they wish to pursue the matter, and it is commonly known that citizens have this knowledge.19 When citizens know or could know all of this without it disrupting their cooperative scheme, they are ‘in a position to know and accept the pervasive influence of the basic structure that shapes their conceptions of themselves, their character, and their ends’. For citizens to be in this position ‘means that in their public life, nothing need be hidden’.20 Citizens realize their political autonomy ‘by acting for the political conception of justice guided by its ideal of public reason’.21 Similarly, Paul Weithman notes that one of the main sources of support for the idea of public reason comes from the conviction that ‘[e]xercises of political power are legitimate only if they are transparent to reason’s inspection; they are not to be shrouded in mystery, obscured by ‘reasons of state’ or hidden in the manner of government house utilitarianism’.22 Stephen Macedo reasons along the same lines. ‘In a democratic society, citizens and public officials are responsible for justifying to one another the institutions imposed on all. . .’23 At the same time, critics of various stripes have maintained that public reason is undemocratic. The objection comes in two main forms. The first alleges that the commitment to public reason involves a form of procedural inequality, and that this inequality is intrinsically bad, apart from whatever further consequences it may have. Public reason is allegedly unfair, and involves unequal treatment, because it denies an equal voice as citizens to those whose ideas get excluded. Consider once again the claim from Wintemute that I cited in Chapter 1 Section 1, the claim that ‘[r]eligious doctrines must be deemed absolutely irrelevant in determining the content of secular laws’.24 Does such a principle not disadvantage

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‘citizens-of-faith’ in public deliberation? ‘Whether we are theists or atheists, we all belong at the table’, asserts Richard John Neuhaus. ‘People need to feel confident they can make their arguments from moral and religious commitments’.25 Michael Perry echoed this charge of unequal treatment in his 2003 discussion of the constitutional disestablishment of religion. Forbidding legislators to base a political choice on religious (i.e., non-public) grounds except where the choice also has a plausible secular rationale would ‘unfairly deprivilege religious faith, relative to secular belief, as a ground of moral judgement’,26 compromising the equal citizenship of religious believers. To be fair, atheism counts as a religious doctrine, according to proponents of public reason such as Robert Audi.27 Audi’s doctrine would permit the exercise of political power based on the goal of maximizing utility, however, assuming we construe it as a moral doctrine that does not take any position on religious questions. Philip Quinn asks what reason there can be for this differential treatment of philosophical doctrines, since both religious and a-religious doctrines may be subject to reasonable objection.28 Nicholas Wolterstorff presses a reformulated version of the unfairness objection against Rawls’s narrower conception of public reason. Even if it also violates the integrity of atheists who have a commitment to the political expression of their atheism, the principle of public reason treats both groups unequally, as compared to those whose religious and philosophical convictions do not demand public expression.29 Although this line of criticism has been made most prominently by religious critics of Rawlsian public reason, it has also been endorsed by a variety of theorists arguing from a secular perspective.30 Citizens with ‘modular’ belief systems will find it easier to separate their religious and political views than will citizens with more tightly integrated belief systems. The requirement of reciprocity ‘weighs more heavily’ on some and thus ‘will involve some unfairness’, Weinstock argues.31 Even if public reason were not unfair in principle, it might be discriminatory in practice. This second objection is that public reason will work to marginalize minority perspectives.32 Even if there is nothing intrinsically undemocratic about excluding non-public reasons when the principle is correctly applied, in practice, it will be the majority that defines what counts as public. The principle is therefore likely to serve as a way for the majority to impose its own religious and philosophical views without admitting that this is what it is doing, and without having to subject these views to critical scrutiny. In contrast, the minority’s point of view is likely to be classified as unreasonable, meaning that its arguments won’t have to be addressed or considered (even when they are genuinely public).

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As this summary of the debate suggests, the debate about public reason and democracy has focused on the reasons for decisions framing of the principle. I will argue that in this form, the principle is neither antithetical to nor necessary for democracy. If the principle is understood to apply to coercive state action directly, however, with a default of inaction defeasible only by unanimity of qualified points of view, it may circumscribe the sphere of legitimate political authority so narrowly as to undermine democracy. Although one can apply a democratic decision-procedure to any given range of political authority, a society ought not count as a democracy unless the scope of its collective authority is sufficient to protect that status of its members as equal citizens, with rights of free speech, association, political participation, and so on. As the sphere of collective decision-making is reduced, there will at some point arise a conflict with the ideal of a democratic society as being one composed of equals with an equal right to participate in shaping the terms of their association. If the coercion model of public justification permits only a minimal state (an issue to be taken up in Chapter 4), it may therefore conflict with the value of democracy. Advocates of the coercion framing of the principle would likely claim that the principle of public justification is more fundamental, however, and that reasonably rejectable coercion is illegitimate even when (allegedly) necessary for the sake of democracy. In the remainder of this section, I therefore focus on the reasons framing of the principle. The objection that public reason involves an unfair procedural inequality is unsuccessful for reasons articulated in a somewhat different context by Robert Nozick. If men are more likely to rape women than vice versa, laws against rape benefit women more than they do men. However, there is an independent reason for prohibiting rape. ‘That a prohibition thus independently justifiable works out to affect different persons differently is no reason to condemn it as nonneutral’.33 Differential impact as compared to a baseline in which people are permitted to violate each other’s rights and differentially inclined to do so is not unfair. In the context of debates about public reason, the question is whether the principle’s differential impact involves a form of substantively unequal treatment, that is, treatment that evinces unequal concern and respect. The answer to this question will depend upon our assessment of the fairness of the baseline from which the impact of the principle of public reason is measured, that is, political deliberation and decision-making unconstrained by a norm of public reason. Defenders of public reason claim that exercising political power on the basis of non-public reasons is wrong. If they are right, it is no objection

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that public justification places heavier demands on some than others, compared to the situation in which no such principle prevails. Individuals who adhere to doctrines that regularly call for political decisions that cannot be justified to all are more likely than others to have their moral preferences frustrated, by public reason. But that is the point. If it is wrong to make political decisions on grounds that others can reasonably reject, then it ought to be harder for people with such beliefs to put them into practice. Having a law against murder makes it harder for bad guys to satisfy their preferences, and easier for good guys to satisfy theirs, as compared to the situation in which there are no laws. Yet, we do not think that unequal impact compared to the baseline of anarchy counts as a strike against laws versus murder. Similarly, accepting the principle of public reason has a differential impact on people’s ability to realize their belief systems. But if the principle is justified, there is no reason to take the no-principle condition as the default or status quo.The bias or unfairness objection presumes what needs to be demonstrated, that the appropriate baseline for assessing evenhandedness is public deliberation unrestricted by a norm of public reason. The unfairness objection piggybacks on other arguments against the validity of the principle, rather than constituting an independent criticism. The objection that public reason will marginalize minority perspectives is harder to assess, because it involves a large empirical element, but there are a number of reasons for doubting this consequence is as likely as critics fear. First, the key question is comparative rather than absolute. How would the adoption of public reason affect minority groups, as compared with a status quo in which there is no recognized principle of public reason? The alternative to the majority misapplying the doctrine of public reason is that it will impose its own views without compunction. Still, it is conceivable that a misapplied principle of public reason will worsen the situation for minorities, as compared to the situation in which no one recognizes any principle of public reason, and all reasons are on the table. Without the principle of public reason, majorities will not be able falsely to label minority views as non-public, and would therefore have to defend their own views on principled grounds in public debate. However, even without any principled commitment to public reason, there exist strategic pressures for minorities to translate their moral views into more widely shared terms.34 Any minority that wishes to change policy but cannot persuade the majority of its underlying philosophy will have an incentive to argue for its preferred policy by appealing to more widely shared ideas. The question is what impact adopting the principle of public reason has when minorities already face these

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strategic pressures. According to John Horton, for example, the arguments for censoring offensive speech made by Muslims in the U.K. in the Rushdie affair did not appeal to the truth of Islam, but rested instead on ‘considerations such as respect for persons, civility, incitement to hatred, group defamation, offence and such like, all of which could reasonably be accepted by anyone’.35 Muslims in the U.K. are a minority that must speak the majority’s secular language for strategic reasons, because of the balance of forces. The principle of public reason extends a similar requirement to the majority, providing a basis for criticizing the majority when it makes political decisions on the basis of its reasonably contestable comprehensive views – if, for example, its hostility to the veil is motivated in part by the view that women ought to be not just equal but sexually liberated too. One of the main concerns of critics who worry about how public reason will work in practice is that the idea of reasonableness will be used to silence dissent, because the majority will characterize minority points of view as unreasonable. However, even without any principled commitment to public reason, majorities may label minority points of view as unreasonable, doctrines to be denounced rather than dignified with counter-argument. The point of public reason is to exclude reasons that are accepted as reasonable, though also reasonably contestable. If all one wants to do is exclude views one takes to be unreasonable, one has no need of a doctrine of public reason. The appropriate lesson to take from the worry about marginalizing minorities is that we should be hesitant to name-and-shame views as unreasonable. This reluctance in no way implies that we have to abandon the idea of public reason. If people misapply a qualified acceptability criterion and draw the circle of the reasonable too narrowly, then their mode of political reasoning will simply be closer to that of those who reject the idea of public justification, those who think justification is always correctness justification, to use Wall’s term.36 The fact that people are likely to draw the circle of qualification too narrowly is hardly reason for concluding that they should draw it more narrowly still. But this is what rejecting public reason amounts to. Correctness justification is simply public justification with the circle of qualification reduced to one. Critics cannot complain that public reason liberals draw the circle of qualification too narrowly unless they are willing to accept a broader justificatory constituency.37 Yet, rejecting public reason does away with the idea of multi-perspectival acceptability entirely. The two main democratic objections to public reason are therefore not persuasive. But is it possible to ground public reason in democracy? Is a country

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less democratic, if it lacks a commitment to public justification? Starting with the argument from equal status as citizens, I concede that serious violations of religious liberty involve a denial of equal standing. It is clearly undemocratic to deny the vote to a religious minority, as well as simply being unjust. It is also undemocratic to require the minority to convert or go to jail, even if prisoners are permitted to vote, because prisoners cannot fully participate in political decision-making; they cannot run for office, organize a political campaign, canvass door-to-door for a representative. Yet, it does not follow that all laws justifiable only by non-public reasons involve a denial of equal standing as citizens. Consider, for example, the case of Abe the atheist forced to pay high taxes to support the generous social welfare system that the majority of the population thinks is required by Christian charity.38 Even if this excess taxation infringes on Abe’s liberty, it is not the case that Abe is being made a second-class citizen. The law may be wrong, but it does not make atheists a subordinated caste. If opposition to second-class citizenship is supposed to be grounded in a conception of democracy, rather than an account of egalitarian justice, it must be restricted to those cases in which the inequalities in question are pervasive or severe, so that we will able to say that the inequalities impair the capacity of those affected to function as citizens. If just any form of unequal treatment or restriction on liberty counted as a violation of equal citizenship, the claim that public reason is grounded in democracy would no longer be distinct from the argument that public reason is required by justice as such, that is, respect for free and equal moral persons (the argument that will be the subject of Chapter 3). What then of the argument from collective autonomy? Justifications of democracy may appeal to liberty as well as equality, particularly if liberty is understood as self-direction rather than merely the absence of external impediment. This line of reasoning, from Rousseau through to contemporary deliberative democrats, suggests that public reason may be defended as a necessary condition for political autonomy.39 There is no doubt that in a democracy, citizens must justify their decisions to one another, in public. The question is why such justifications must be public in the specific sense of meeting a qualified acceptability criterion, as opposed to simply being public in the other senses discussed in Chapter 1 Section 2. It is certainly true that rulers must be accountable to their subjects. If citizens must obey, they have a right to know why, to question the consistency of the rationale offered in one case with the rationale offered in another, to dispute the validity of the grounds offered, and so on. Without justification in public, political power is indeed likely to be mere

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power, blind social force or the imposition of ‘naked preference’.40 What is not obvious is why such justification must be public justification, in the special sense of a justification that meets a reasonable or qualified acceptability requirement, as opposed to the requirement of ordinary correctness-based justification. The contemporary ideal of a deliberative democracy demands public justification in the ‘no higher authority’ sense and the ‘no necessarily hidden rationales’ sense. The exercise of political power ought to be guided by or track the public reasoning of free and equal citizens.41 The term ‘public’ here means both ‘unconstrained by authority’ and ‘taking place in public’ (as well as ‘about what is just, or good for all’). However, the requirement that citizens should deliberate in public about what is good for all does not imply that they should exercise epistemic restraint, forswearing appeals to religious or philosophical considerations that might be true, despite being reasonably contestable. The norm that citizens exchange reasons rules out only ‘naked’42 appeals to factional interest, without otherwise limiting the permissible content of these reasons.43 Rousseau famously argued that we can be free in making the laws if we make them ourselves. The obvious problem with this claim is that unless there is unanimity, the minority is obeying the majority. Rousseau’s answer was to construe voting as an expression of judgement about the common good, rather than as an expression of personal preference. If my fundamental will as a citizen is for the common good, and my vote is a fallible expression of judgement about what this common good is, then I may still be free in obeying a law I voted against.44 The majority is not guaranteed to be right, but if the majority is more likely than I am to be right about what the common good is, then perhaps upon learning of the results of the vote, I should change my mind. If so, I end up obeying only myself even when I initially disagree with the majority. This reconciliation of individual liberty with political authority involves an unfortunate ‘expectation of deference’, however.45 If I only have reasons for believing that the majority is more likely to be right than I am, and not reasons that justify the majority’s view, then in obeying the majority, I am not obeying myself in the ordinary sense, but surrendering my judgement. I have reason for thinking that the law in question is likely to be in the common good because it was selected by the majority under the appropriate conditions, but in complying with the law I will not be acting on the basis of reasons that explain why the law is in the common good. Conversely, the fact of having voted with the majority does not by itself make me autonomous if I voted without any reflection, or simply because my private preferences happen to align in this instance with the common good. I get what I want, but I am

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effectively acting on impulse; I am not acting as a free agent should, which is to say for reasons that I can articulate and that justify my action. Deliberative democrats have revised Rousseau’s argument so as to strip it of its reliance on intellectual deference, and the implicit (un-Rousseauian!) equation of liberty with non-frustration of wants. Rousseau was right to think democracy essential to liberty, but wrong to think that liberty under law consists in the law matching one’s will. To be free while obeying the law, even when one disagrees with the law, is to have the opportunity to participate in shaping the laws via a process of deliberation among free and equal citizens. I am free not when the law happens to match the preferences I bring to the table, nor even when the law is truly in the public good but for reasons of which I am ignorant. I am only free to the extent that I help shape the content of the law via a process in which I submit my judgements to critical scrutiny by reasoning in public with others. At the end of the day, the law selected may not be the one I favour. Nonetheless, in the ideal case, where the process of deliberation does influence or guide the selection of the law, I am in a position to know the reasons that the majority thinks support the law, to know that my opposing reasons have been heard by others, and to know that I am obeying the results of a collective reasoning process that aims at the common good. Unfortunately but inevitably a decision has to be taken prior to the achievement of unanimity, but the process of reasoning about the wisdom or justice of the law continues, since I do not surrender my judgement to the majority, even while I comply with the law, and this process might in the future lead to the law being changed, or to my recognizing its wisdom, as the case may be. This, I take it, is the gist of Habermas’s discussion of Frobel’s revision of Rousseau,46 and Bernard Manin’s parallel critique.47 There is thus a plausible argument from autonomy to a deliberative conception of democracy. However, the idea of public reason plays no essential role in this argument. It is crucial to my being free in obeying the law that I know (or freely choose not to find out) the reasons that motivate the law. For these conditions to be met, our deliberations must be public and efficacious. The only way a group of rational agents can be equally autonomous in obeying the law is for them to participate in a deliberative process of law-making. Their autonomy consists not in the law matching each individual’s will, but in the fact that individuals form their wills in deliberation with others, and participate as equals in a reasonbased decision-making process. These conditions are fulfilled whether or not citizens have a commitment to unanimous reasonable acceptability, so long as a sufficiently deliberative political system is in place.

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It may be objected that laws cannot be authoritative for any individual who takes her freedom and equality seriously unless the law is self-imposed, and that laws based on reasonable rejectable values or principles cannot count as selfimposed. The only way to ensure that laws are truly self-legislated, if this is in fact a requirement of autonomy, would be to apply the qualified acceptability requirement at the level of the laws themselves, not their supporting reasons. In this case, however, we no longer have a democratic argument for public reason, but an argument from the coercion framing of public justification to constraints on democracy. It was the premise of the deliberative revision of Rousseau that freedom under law did not require that the law match my will. If instead we demand that there be no law unless the wills of all reasonable persons agree, we no longer have a case for making collective decisions democratically, but a case for limiting the scope of collective decision-making. When it is interpreted in deliberative fashion, autonomy supports the requirement of justification in public, not the requirement of public justifiability (i.e., unanimous reasonable acceptability). If autonomy is interpreted in a more individualistic fashion, it does support the demand for public justifiability, but as a justice-based constraint on democratic decision-making.

3 Anti-paternalism We have so far looked for justifications of the principle of public justifiability in the rights of freedom of conscience and political liberty. It may seem these values are at the wrong level of generality to serve as the basis for public reason. Instead of starting from specific rights, perhaps we should instead be looking for some more general and fundamental ideal. Public reason is at the heart of recent liberal theory, it may be argued, because it is opposed to perfectionism; public reason liberals are committed to ‘liberalism without perfection’, according to the title of Jonathan Quong’s recent book.48 Perfectionism raises two broad concerns – paternalism, and unfairness or unequal treatment. I discuss paternalism in this section, equality in the next. First, though, I need to say something about the definition of perfectionism, and about the relationship between antiperfectionism, or liberal neutrality, and public reason. Perfectionism, in the core sense, is the doctrine that the promotion of valid or sound ideals of the good life is a legitimate basis for state action.49 ‘The spring from which anti-perfectionism flows’, Joseph Raz claimed, ‘is the feeling that

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foisting one’s conception of the good on people offends their dignity and does not treat them with respect’.50 Why should the others have the right to limit my liberty, simply because they think it would be better for me for me to live in a particular way? One of the problems with perfectionism is thus that it may involve illegitimate paternalism. As Steven Wall points out, however, perfectionism can also be defined in a broader sense.51 Rather than using the state to promote ideals of human flourishing, simply because they are correct and people would be better off living according to these ideals, we may invoke an ideal of human flourishing in setting out the rights and duties we have with respect to one another as a matter of justice. The idea is not that we may define people’s basic legal rights and duties so as to promote adhesion to sound ideals of the good life; that is perfectionism in the core sense, and of a particular noxious variety, since it puts perfection before justice.52 The idea is rather that we define citizens’ basic rights and liberties according to the whole moral truth, rather than according to a political conception of justice intended to be acceptable without religious or philosophical conversion to the full diversity of reasonable points of view. For example, we might imagine that a comprehensive Millian liberalism would have a very expansive and demanding conception of freedom of speech, because it places so much importance on autonomy. Such a view would not define freedom of speech in this way in order to encourage or promote autonomy on the part of those who reject it. Rather, it would define freedom of speech based solely on considerations about what people are owed as a matter of justice, while answering this question according to the whole moral truth as conceived of by this doctrine. This form of perfectionism does not put achievement of perfection, excellence or greatness above justice, but simply that insists the standard of justification for questions of justice ought to be correctness, not qualified acceptability. The association between anti-perfectionism and public justification arises because anti-perfectionism has generally been interpreted as ‘justificatory’ rather than ‘consequential’ neutrality, that is, neutrality at the level of reasons rather than at the level of effects.53 In his influential treatment of the subject, Will Kymlicka argued that Rawls’s commitment to equal basic liberties and equality of resources would have non-neutral consequences. Basic liberties make it harder for unattractive ways of life to flourish than it would be under a modern-day millet system, where people were in equal numbers locked into the various possible ways of life. A fair distribution of material resources makes it harder for people with expensive tastes to realize their preferred ways of life than it would be if resources were distributed so as to equalize preference-

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satisfaction.54 Thus, liberal neutrality permits unequal outcomes for persons with different conceptions of the good life, but rules out the justification of state action by reference to reasonably contestable conceptions of the good life. It is true that ‘non-promotion’ of conceptions of the good (i.e., anti-perfectionism in the narrow sense) cannot be understood as a guarantee of equal outcomes. It does not follow, however, that the only alternative is to define neutrality is such a way as to rule out perfectionism in the broader sense, where laws and policies are designed with a view to justice as defined in accordance with a correctness standard of justification, that is, based on the full moral truth. Taken by itself, neutrality of justification rules out policies justifiable only by a particular conception of the good even if the purpose of the policies in question is not to promote adherence to a particular conception of the good, but simply to secure justice, correctly understood. The idea of justificatory neutrality overshoots, in relation to the core idea that the state should not promote controversial conceptions of the good, because conceptions of the good can figure in the justification of policies other than as views the adoption of which public policy should encourage. When we invoke a conception of the good to identify the correct specification of the duty not to harm, or the duty to aid, or the correct standard of distributive justice, we do not thereby aim to promote the conception of the good in question. Kymlicka’s choice of the term ‘justificatory neutrality’ was motivated by the need to recognize the importance of individual responsibility, and the fact that whatever distribution of costs and opportunities arises from individuals’ voluntary interactions within the framework of just rules and institutions is thereby just, even if some ways of life end up being harder to live than others (e.g., due to lack of popularity). Yet, the concern for individual liberty and responsibility does not require the exclusion of reasonably contestable reasons from political decision-making across the board, which is what the term ‘justificatory neutrality’ suggests. Adding confusion is the fact that justificatory neutrality can be justified on indirectly perfectionist grounds. The collective decision-rule that maximizes the realization of truly good lives might not be for the state to try to improve people’s lives directly. Just as I may lead a happier life if I aim at achievement rather than happiness, so too the state may succeed in maximizing human flourishing by aiming at something else, such as protecting basic rights and liberties. According to Thomas Hurka, this is the structure of Kymlicka’s defence of liberal neutrality.55 Kymlicka’s argument, as glossed by Hurka, is that excluding certain true claims about the good from political decision-making paradoxically maximizes the

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realization of the values in question, because the state acts via coercive general rules on the basis of limited information, and good lives vary enormously, except for their having to be endorsed ‘from the inside’. What is distinctive about the Rawlsian notion of public reason, in contrast, is that certain otherwise relevant considerations are excluded because we recognize them to be the subject of deep reasonable disagreement, and hence, should not be allowed to matter, when it comes to the design of common institutions and policies. Public reason is characterized by a principled moral restraint, not by sophisticated calculations of indirect maximization. Jonathan Quong refers to the indirectly perfectionist defence of (liberal) neutrality as ‘comprehensive anti-perfectionism’ and cites Dworkin as well as Kymlicka as a proponent of this view.56 Quong distinguishes two questions, which parallel Wall’s distinction between two kinds of perfectionism:

1. Must liberal political philosophy be based in some particular ideal of what constitutes a valuable or worthwhile human life, or other metaphysical beliefs? 2. Is it permissible for a liberal state to promote or discourage some activities, ideals, or ways of life on grounds relating to their inherent or intrinsic value, or on the basis of other metaphysical claims?57 Views that answer ‘yes’ to the first question Quong labels as comprehensive (as opposed to political), roughly corresponding to the broad sense of perfectionism. Views that answer ‘yes’ to the second question Quong labels as perfectionist (as opposed to anti-perfectionist), corresponding to the narrow sense of perfectionism. The most familiar contrast is between comprehensive perfectionists (e.g., Raz) and political anti-perfectionists (e.g., Rawls). However, comprehensive anti-perfectionism is also possible. The main example Quong cites is the justification of state neutrality on the basis of the comprehensive liberal value of autonomy, as found in Mill, Dworkin and Kymlicka.58 There are, however, at least two general forms of comprehensive anti-perfectionism. The Mill/Dworkin/Kymlicka version is consequentialist, adopting the perfectionist form of reasoning but justifying a kind of neutrality on the part of the state by appealing to a liberal conception of the good, as well as various empirical facts. There are better and worse ways of living, and the state should promote the leading of truly good lives, but because autonomy is such an important constituent of good lives, and coercive law is a blunt instrument, the state should generally not favour one way of life over others. Building on work by Sher, Wall, Chan

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and others, Quong argues that this appeal to autonomy only limits but does not rule out perfectionism in politics.59 There is a distinct form of comprehensive anti-perfectionism that is deontological rather than consequentialist, however. According to this view, the state should not promote the leading of good lives, but limit itself to enforcing those rights and duties that people have as a matter of justice, allowing paternalism only in the case of children and severe cognitive malfunction. Such a position could be comprehensive, in the sense of being based on a controversial conception of the good life, including a commitment to autonomy, without any commitment to bracketing controversial truth claims. But it would be based on the principle of respecting the choices of autonomous agents, rather than acting so as to promote or maximize autonomy. The deontological variant of comprehensive anti-perfectionism is perfectionist only in the broad sense, that is, it rejects the demand for public justification, insisting instead on a correctness standard. It is not perfectionist in the narrow sense, since it strongly opposes paternalism (on the grounds of what it takes to be the whole moral truth). The deontological variant of comprehensive anti-perfectionism involves what Quong calls ‘perfectionist justice’. The main function of the state is to enforce the requirements of justice, but ‘those requirements are determined by recourse to perfectionist considerations’, as for example if the metric of distributive justice is determined by an account of human flourishing.60 Quong argues that perfectionist justice is not a distinct alternative from non-perfectionist justice, because its practical consequences are either the same as equality of resources or implausible. For example, perfectionist justice might distinguish itself by arguing that resources ought to be distributed so as to equalize levels of flourishing, but if this means that distributive justice ought to be completely insensitive to personal responsibility, the view is implausible.61 It seems to me that Quong is looking in the wrong place for a distinction between perfectionist justice and non-perfectionist justice (or as I would prefer to say, comprehensive and political justice). The issue is not equality of resources versus flourishing, but equality (of opportunity) for what resources? A comprehensive approach to distributive justice would employ a correctness standard of justification, assessing institutions in terms of the opportunities they make available to people in different social positions for leading a truly good and worthwhile life. Such an approach will not necessarily yield the same index as would Dworkin’s idealized market, or Rawls’s account of the two moral powers (which are understood as essential capacities of citizens, not elements of well-being as a whole).

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The upshot of this discussion is that we must keep the distinction between Wall’s narrow and broad senses of perfectionism in view, and we must not assume that the flaws that attach to perfectionism in the narrow sense attach to perfectionism in the broad sense. The view that it is legitimate to use political power to promote particular, reasonably-rejectable conceptions of the good life raises obvious worries about paternalism, as well as unequal treatment. Even if valid, however, these concerns will not necessarily apply to the view that it is legitimate to define the rights and duties individuals according to (not so as to promote) a particular conception of the good, employing a correctness standard of justification. Perhaps the latter, broad kind of perfectionism does involve illegitimate paternalism, but it will take an argument to reach that conclusion. Paradigm cases of paternalism involve A limiting B’s liberty for the sake of B’s well-being.62 One can be strongly opposed to paternalism in this sense, and yet, without any inconsistency reject the demand for public justifiability. It is simply true, one may argue, that it is wrong and unjust for the state to impose a conception of the good life on me, a fully autonomous adult. Even if I am wrong about what life is best for me to lead, it is my life, and I have a right to make my own mistakes. I can make this claim while being fully committed to correctness as the right standard of justification in relation to justice. Without a commitment to public justifiability, I would accept that it is legitimate to determine the scope of our duties to one another under the heading of justice by appealing to controversial ethical or religious views (not so as to promote adherence to these doctrines, but in accordance with them). For example, I may claim that the question of the permissibility of torture ought to be decided based on the full moral truth, including the full range of religious and spiritual truths, while also insisting that paternalism is rarely if ever justified, due to the insult involved in others substituting their judgements for mine about what it is good for me for me to be. Similarly, when it comes to defining what counts as murder, we would answer this question as best we can based on what we variously take to be the simple truth, without any bracketing of reasons that are allegedly too controversial. Limits on abortion might be justified, for example, on the grounds that the soul enters the foetus at conception. Anti-paternalism by itself is no help in opposing restrictions on abortion, since such laws are not intended to benefit the woman in question, but her foetus, or perhaps to honour some impersonal value. The point is not to correct a mistake the woman is making about what is good for her, and so to make her life go better by our lights, but to protect

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the foetus (so the proponent of such limits will say). Policies justifiable only by reasonably contestable comprehensive doctrines need not involve paternalism. It is true that there are other forms of paternalism, forms that do not involve limiting people’s liberty, or that do not aim at their own good. For example, offers of assistance do not limit liberty, but may still be motivated by paternalistic considerations. When my partner offers to take me out for dinner if I stop playing video games and finish the paper I’ve been working on, she is acting paternalistically because she is presenting me with an incentive to change my conduct, not an argument, and she is doing so based on the belief that I would otherwise make the wrong choice, taking for granted that she knows better than me what the right choice is.63 Similarly, if I refuse to help her build a bookshelf because I think (but do not argue) that she should learn to do things for herself, I am acting paternalistically, despite not restricting her conduct.64 Such cases still involve one person trying to substitute his or her judgement about what is good for someone else for that person’s own judgement. In contrast, institutions and laws based on non-public reasons may simply aim at true justice, conceding that individuals are sovereign about what it is good for them, for them to be. The second possible expansion of the idea of paternalism allows that paternalistic conduct need not aim at the good of the person acted upon. The core idea of paternalism is substitution of judgement based on a negative assessment of someone else’s capacity for rational agency. When we object to such paternalism, it is because the person in question passes a threshold of rational agency such that her judgement merits respect even when wrong. Actions that aim at the well-being of third parties rather than the well-being of the decision-maker in question can have this property. In Seana Shiffrin’s account, for example, I act paternalistically with respect to Betty if for the sake of the well-being of her child, I intervene to prevent Betty from punishing her child.65 Similarly, as a member of the departmental hiring committee, I would resent it if my colleague were to provide me with selective information about a job candidate in a way calculated to affect my vote, based on the suspicion that I would come to the wrong decision if I had complete information. My judgement is not perfect, and it may be less adequate than that of my colleague, but I have a good enough capacity for rational deliberation that my judgement deserves to be respected, in exercising my institutional responsibilities, not circumvented or manipulated. These examples work because there are clearly defined social roles that ascribe responsibility for certain decisions affecting others to a particular person. Where

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there is no such scheme, or if the question is what scheme of cooperation to adopt, we cannot speak of paternalism. Paternalism can only be defined relative to an answer to the question of what rights people have, because we need to know whether a matter falls within scope of the individual’s proper sphere of agency. The only exception to this rule is the case in which Alf ’s action is motivated solely by concern for the well-being of Betty as Alf but not Betty understands it, for if Betty is sovereign over anything, it must be over the question of what is good for her for her to be. Laws protecting individuals from harm and laws aimed at establishing distributive justice do substitute a collective judgement for individual judgement – about how they will treat others. But such substitution is only objectionable if individuals have the right to decide for themselves how they will treat other people, without regard for other people’s views about the matter. Even if opposition to paternalism does not require or imply the principle of public justification, one might think that if one is committed to public justification on other grounds, one will for that reason also be strongly opposed to paternalism. For example, if the majority of the community would like to promote consumption of art and culture on the part of a minority that is only interested in football, the majority finds itself blocked by its inability to appeal to the superior value of art and culture (though there may, of course, be other, legitimate public reasons for supporting art and culture that are sufficient to justify the policies in question). However, as explained in Chapter 1 Section 3, when public justification is framed in terms of reasons for decisions, the qualified acceptability criterion is normally applied only at the level of motivating principles or values, not to the judgements about ranking, interpretation and application that generate conclusions about policy in particular factual contexts. This implicit restriction of scope is essential for public reason not to be regularly indeterminate, but it also opens up the possibility that, consistent with the principle of public justification, the state could act to promote aspects of human flourishing that are not reasonably contestable. For example, Daniel Weinstock argues that mildly coercive policies intended to encourage exercise and discourage smoking are legitimate and consistent with liberal neutrality, because there is no reasonable disagreement about the fact that health is good, and sickness/death bad.66 Moreover, everyone recognizes that paternalism is sometimes justified, for example, with respect to young children. To draw the line between unobjectionable and objectionable forms of paternalism, we need to set the

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threshold of rationality above which people’s choices merit respect even when wrongheaded. We also need to assign some weight to respect for autonomy as against concern for well-being. Where someone is barely past the threshold of rational autonomy, but is acting in a way that may bring grave harm to themselves, we may think paternalism justified all things considered, even if pro tanto objectionable. If some ethical conceptions of autonomy can be too rich, thick, or comprehensive, and can therefore count as non-public, then accepting the constraints of public reason can reduce one’s opposition to paternalism, compared to what it would otherwise have been, based on one’s comprehensive liberal doctrine. Thus, coming to accept the demand for public justification as a constraint on reasons for decisions will not necessarily make one more strongly opposed to paternalism than one would otherwise have been. It is conceivable that some perfectionist liberals would be less strongly opposed to paternalism if they came to accept public reason, than if they formed their views about what rights and liberties we should recognize, based on what they take to be the full moral truth. As we saw in connection with Hobbes and Mill, the principle of public justification may rule out controversial liberal ideals that would have supported a broader liberty than can be justified on public grounds. The fact that the reasons-for-decisions model of public justification does not rule out all objectionable perfectionism (and may even lead some people to be less anti-paternalistic than they would otherwise have been) may seem to make the coercion view more attractive. For example, Weinstock’s gently coercive anti-smoking legislation can readily be understood as involving a form of objectionable paternalism. Even relatively gentle state efforts to discourage smoking via education employ coercion, at least to raise taxes, Gerald Gaus points out, and given that reasonable people disagree about the correct weighting of health and pleasure, why should the majority be able to impose one weighting on everyone?67 It is indeed paternalistic to discourage autonomous adults from smoking simply because health is more important than pleasure, and smokers would (we think) be better off if they quit. When justifiable only in this way, restrictions on smoking involve other people imposing their judgement on me about what it is good for me for me to be. What is plausible in Gaus’s objection is the rejection of paternalism, however, not the demand that all coercion be invulnerable to reasonable rejection. Not all anti-smoking laws based on an assessment of the relative importance of smoking and pleasure are paternalistic. Judgements about the relative importance of health and pleasure can figure in justifications of decisions about social policy in different ways. One way is as the

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object of promotion; people are making mistakes about the relative importance of health and pleasure, and by this law, we will encourage them to change their ways. Another is as the basis for determining the scope of the rights and duties we have as a matter of justice. Consider the question of the boundaries of our duty not to harm, in relation to second-hand smoke. On the one side of the debate, we have the legitimate concern of protecting people’s health from the harmful effects of other people’s smoking. On the other side of the debate, we have the legitimate concern that others take pleasure in smoking. That both should count as public reasons can be seen from the fact that if the latter did not count as a public reason, we could simply ban smoking everywhere and anywhere, and thereby, completely eliminate any health threat to bystanders. That we do not do so suggests that we think that the fact that some people like to smoke deserves some weight, in our decision about where to draw the boundaries of the right to smoke (airplanes? restaurants? doorways to buildings? patios?). In setting the boundaries of people’s liberties, so as to make them consistent, we must draw upon judgements about the urgency of the various interests people have; we cannot design a scheme of liberties so as to maximize liberty in some putatively neutral or descriptive sense. To use Charles Taylor’s famous example, there is not more freedom in a society with mandatory atheism but no traffic lights than in a society with freedom of conscience and heavily regulated traffic, despite the greater number of discrete acts of interference in the latter case.68 Measurements of liberty depend on qualitative assessments of the significance of the opportunities people have available to them, and therefore, depend upon judgements about the good. Assume that discouraging smoking solely for the sake of the well-being of the smoker is off the table. People will still disagree about the importance of health relative to pleasure (which some find in smoking), and therefore, also disagree about where to draw the boundaries of the right to smoke and the duty not to harm others. No matter where we locate the boundary of the right to smoke, some people’s judgements about the relative importance of health versus pleasure will be disregarded, not because society is trying to decide what it is good for them for them to be, but because we must define the limits of the duty not to harm. Anti-paternalism by itself does not answer this question. Rejecting paternalism does not imply that we must prohibit coercive state action wherever reasonably rejectable. Although the coercion framing of the principle of public justification is strongly anti-paternalist, it cannot be justified on grounds of anti-paternalism because it restricts forms of coercive state action that are not paternalistic.

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4 Equal treatment Earlier, I said that perfectionism raises a concern about unfairness or unequal treatment, as well as about paternalism. The issue of inequality arises in two ways. The community may limit my liberty or impose burdens on me in order to make it easier for others to live a particular ideal of the good life.69 Or the community may pursue legitimate public goals in ways that are ‘unequally accommodating’ of different conceptions of the good.70 The importance of equality as a motivating factor in liberal anti-perfectionism is illustrated by a lacuna in the description of liberal neutrality as justificatory neutrality. Justificatory neutrality is too permissive or inclusive, Alan Patten points out, for it counts the establishment of religion on grounds of civil peace as a neutral policy.71 Religious establishment does not seem neutral, even if it is justifiable in the circumstances by appeal to a reason no one can reasonably reject. Patten therefore conceives of neutrality as equal treatment, which he explains with the example of a philanthropist faced with the task of distributing money to different groups. The philanthropist might give them each whatever sum she calculates will best advance whatever values they all share. Or, she might give them each whatever sum she calculates will lead to equal success in their endeavours. Or, she might simply give them the same amount, which would be neutrality of treatment. Patten argues that neutrality of treatment can be justified on grounds of a principle of fair opportunity for self-determination, which he calls ‘the fairness justification of neutrality’.72 The importance of equality to the definition of neutrality suggests that we might appeal to equal treatment instead of anti-paternalism to ground public justification. In connection with the issue of public support for art and higher education, Rawls warns against using the state to win extra resources for those who have the correct conception of the good.73 One straightforward way in which this is unfair is that it involves taking from those who are, by the perfectionist’s own lights, worse off (those who are labouring under misconceptions of the good) and giving to the better-off (those who have the correct understanding about what is valuable in life). This is a good point, but it has nothing to do with the principle of public justification. One could accept that the conception of the good in question is true, and that political decisions may legitimately appeal to this truth, while maintaining that it is wrong to tax the misguided in order to give to the enlightened. Egalitarian perfectionists would be attracted to this line of reasoning.74 Perfectionists may defend the policy of subsidizing valuable ways

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of life on the grounds that reducing the costs of these ways of life will provide an incentive for those who would not otherwise have tried them to do so, and that those who end up appreciating the preferred activities will be better off as a result. However, if many people would have led the preferred way of life anyway, and others will not switch, general subsidies will be inefficient, and involve a large element of simple transfer (from the misguided to the enlightened). Targeted subsidies could overcome this objection; we might distribute opera tickets at monster truck rallies, for example, or theatre tickets at suburban Cineplexes.75 It is not true, therefore, that any policy aiming to promote a reasonably contestable conception of human flourishing gives a larger share of social resources to those with that conception of the good than to others. It is true that such policies give more to some people than they would have under a neutralist metric of equality, for example, those with a faulty conception who end up switching. However, there is no way to justify that neutralist metric of equality by appeal to equality without presupposing what is in question. Violations of justificatory neutrality will be seen to involve unequal treatment only if equal treatment is defined relative to a neutralist account of the baseline, that is, an account of the units and dimensions of assessment that takes into account public reasons only. If neutrality involves equal treatment, we need to know of who or what needs to be treated equally, in what dimension, or with respect to what kinds of treatment. Are we talking about sentient creatures, persons, citizens, citizens of the same age and level of ability, etc.? As is widely recognized, the principle of treating persons as moral equals does not imply treating all persons the same – or rather, we need to know who needs to be treated the same, and in what respects. The demand for equal treatment presupposes a conception of justice that will settle the issues of the units and dimension of comparison. The question then arises of whether this conception of justice must be political in Rawls’s sense of being acceptable to all reasonable comprehensive doctrines, because based on fundamental ideas all such doctrines can be expected to share. Just as it is possible to imagine being committed to anti-paternalism but not public justification, so too it is possible to imagine being committed to equal treatment of conceptions of the good relative to a baseline of just institutions, where justice is defined according to a particular comprehensive doctrine. That is to say, we accept the pro tanto value of equal treatment defined relative to a background of just institutions, but we define justice according to (again, not so as to promote) a particular comprehensive doctrine, rather than in political terms in the Rawlsian sense (where the conception of justice is meant to be acceptable

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to the full range of reasonable points of view). The requirement that one’s metric of equality be suitably neutral or publicly justifiable cannot be grounded on equal treatment, because what counts as equal treatment depends on whether one presupposes a commitment to public justifiability.76 It might seem that a non-neutral conception of equality would violate a liberal ideal of individual responsibility. In favour of equality of resources, for example, Patten appeals to the familiar objection that the ‘[the standard of] equal success has trouble with the idea that citizens who enjoy their fair share of resources and accommodation ought to be held responsible for the contents of their conceptions of the good’.77 Yet, a comprehensive conception of justice need not be committed to equalizing well-being, regardless of the choices individuals make, any more than equality of resources implies that we must equalize holdings regardless of the choices people make. Because of Dworkin, we tend to assume that the alternative to equality of resources is equality of welfare or equality of true wellbeing. Yet, as Richard Arneson persuasively argues, what Dworkin means by ‘equality of resources’ is really equality of opportunity to acquire resources.78 Dworkin was hardly in favour of equalizing resources regardless of the responsible choices people make. The alternative to equal opportunity for neutrally-defined resources ought to be equality of opportunity for resources essential for true well-being. Such a conception of distributive justice could be perfectionist in the sense of being justifiable only by appeal to a controversial conception of the good, but focused on opportunity, as determined by institutional rules and social structure, rather an outcomes. For example, assume that the view in question is that interesting, meaningful work is an important component of a good life, much more important than wealth, say.79 An opportunity-focused perfectionist would conclude that we need to assess the economic system partly in terms of the distribution of opportunities for meaningful work across different social positions. If institutions that are just according to this metric are in place, and I nonetheless choose to focus on attaining wealth rather than meaningful work, there is no cause for the state to try push me into a better way of life, nor to compensate me for my lack of true well-being. We can also ask whether accepting the demand for public justification will make one more strongly committed to equal treatment than one would otherwise have been. The answer is again ‘not necessarily’. True, those with conceptions of the good that generate highly egalitarian conceptions of justice might find that accepting the demand for public justifiability makes them less egalitarian than they would otherwise have been. Yet, the same is true for those with highly

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inegalitarian views. Whether the overall effect of adopting the principle leads one to endorse a conception of justice that is more or less egalitarian than the conception one would otherwise have endorsed will depend on the details of one’s comprehensive doctrine. What about the coercion framing of the principle, in relation to equal treatment? We saw that this model was strongly anti-paternalist, but that it went beyond anti-paternalism in prohibiting reasonably rejectable state action that was coercive but not paternalistic, as in the case of laws designed to protect people from the effects of second-hand smoke. The coercion framing of the principle is also very restrictive of unequal treatment. In this interpretation of the principle, coercive state action must be acceptable to all reasonable moral points of view. Therefore, if any point of view reasonably thinks that the law in question fails to treat those with this point of view as equals, it is not justifiable, and we default to no law – even if others think that the ‘no law’ option fails to treat them as equals. We will see in Chapter 6 that many objections to marriage depend on a conception of equal treatment that is highly libertarian, because based on a strict idea of individualized treatment, that is, treatment based on individual characteristics rather than group averages. Such a principle is a natural consequence of the demand that coercive state action be justifiable to each and every individual. This requirement will also limit the state’s ability to act for the sake of equality in other ways, for example, to ensure fair rather than merely formal equality of opportunity, or to prevent the emergence (or help eliminate) the existence of systematic relationships of hierarchy between publicly recognized groups.80 Equal treatment by the government does not by itself guarantee the social conditions in which no one is generally perceived and treated by others as a second class citizen. In summary, the exclusion of reasonably contestable religious and philosophical doctrines from political decision-making cannot be derived from anti-paternalism or equal treatment. When formulated as a constraint on coercion directly, with a default of inaction, the principle of public justification limits coercive state action in general, not just paternalism, and is highly restrictive of any laws that can reasonably perceived to involve unequal treatment. In this version, however, the principle is likely to undermine the positive state action that may be necessary to secure equal opportunity or the elimination of castelike hierarchies.

3

Respect for Persons as a Constraint on Coercion

Chapter 2 maintained that many of the most common justifications for public reason are unsuccessful; these were the arguments from freedom of conscience, democracy, anti-paternalism and equal treatment. One objection to this manner of proceeding is that it separates values that are intimately connected. Although equality and liberty are different values, it is equal liberty we care about, from a moral point of view. It may be that what no one value can explain by itself, a group can explain together. Perhaps all of these values find their source in a more fundamental commitment, one that also grounds the requirement of public justifiability. The most obvious candidate for such an argument is the idea of equal respect for persons as moral agents. The argument from respect provides what I take to be the most powerful case that has yet to be offered for public reason, understood as a heightened standard of justification for coercion. The central idea of the argument from respect is that exercising power in ways that are not publicly justifiable is intrinsically disrespectful of persons’ capacity for moral agency. The first section of the chapter considers Charles Larmore’s statement of this argument, as well as some criticisms from Christopher Eberle. The central problem with the argument from respect is that enacting laws based on non-public reasons need not involve any attempt to manipulate or circumvent citizens’ capacity for justificatory reasoning, so long as citizens are in a position to know what the reasons are for a given law or policy, and citizens supporting the law do so for reasons they think truly justify the law in question. The natural response to this criticism is for defenders of public justification to claim that respect requires more than just sincerely engaging the capacity for justificatory reasoning of the coerced agent; it requires that the coerced agent be able to validate that reasoning from his or her own reasonable perspective, without having to undergo a reasonable but also reasonably rejectable philosophical conversion. The most explicit

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version defence of this position is from Gerald Gaus, whose views on public justification are the subject of the second part of the chapter. Gaus defends two presumptions against coercion. The first claims that coercion is pro tanto morally bad; if things are otherwise equal, we ought not to coerce. Gaus also argues for a stronger presumption against coercion, however, involving a heightened standard of multi-perspectival acceptability. Coercion is wrong, according to Gaus, unless it is justifiable to (i.e., acceptable without conversion by) all members of a partly idealized public. This stronger presumption against coercion does not follow from the first. It is also not plausible, for it treats coercion and failures to prevent coercion asymmetrically. It is plausible to treat specific rights as side constraints, as for example, in the case of the right not to be tortured (even to prevent the torture of two other people). It is not plausible to treat reasonably rejectable coercion in general in this way. Gaus’s most recent work provides a potential response to this criticism, a response that I assess in the final section of the chapter. This response involves the idea that there is an order of public justification, and that the initially unmoralized idea of coercion becomes progressively moralized as one proceeds through the stages of this hierarchical process. While this argument does make Gaus’s position more plausible, it also introduces what looks like a shared reasons constraint, while threatening to remove the view’s classically liberal tilt.

1 Larmore’s argument from respect for persons The starting point for all arguments based on respect for persons is that we must recognize our fellow citizens as free and equal moral persons. In Rawls’s view, for example, persons have two moral powers: to form, revise and pursue a conception of the good, and to form, revise and act from a conception of justice.1 According to Gerald Gaus, a moral person is one who can make moral demands of others and likewise act upon others’ demands. Moral persons are thus not solely instrumentally rational, given their own ends, but seek to justify their actions as being consistent with the legitimate demands of others.2 Moral persons are free in that they are not subject by nature to the authority of anyone else, and they are equally free since this absence of natural authority characterizes all who pass the threshold of moral personality, equally.3 What is required of us if we are to respect our fellow citizens as persons who are free, equal and moral in something like this sense?

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The most prominent answer to this question is that respect places constraints on when and how we can exercise political power, and in particular, engage in coercion. According to Larmore, the conviction that political principles must satisfy a reasonable acceptability standard rests on ‘the distinctive feature of political principles which sets them off from other moral rules’, which is that they are rules with which individuals can rightly be forced to comply. Enforceable rules, whichever we take them to be, are the ones that count as political. ‘It is this coercive character of political principles which we have in mind, when we hold . . . that such principles must be the object of reasonable agreement’.4 This conception of political principles as enforceable moral rules suggests that it is coercion that must meet the idealized unanimity standard, otherwise we may not coerce. As in many other statements of political liberalism, there is some ambiguity in Larmore’s formulations, and perhaps, the most plausible interpretation would involve a hybrid view. Nonetheless, I will construe the argument from respect as an argument for the coercion framing of the public justification principle. Respect for persons cannot rule out threat or use of force, but in Larmore’s view, it does prohibit us from resting compliance on the threat of force alone. To secure compliance via threat of force alone is to treat the person threatened as a thing to be moved by causal forces, rather than engaging their distinctive capacity as a person, which is to think and act on the basis of reasons. Although threats do make use of the person’s capacity to reason (since the person must be able to recognize a threat), they do not engage the threatened person’s reason in the same way our own capacity is engaged. We support the principle in question because we think there are reasons that justify it, reasons that support the principle irrespective of any rewards or penalties that might attach to our supporting it, which is to say, reasons for believing in the principle. Threats provide incentives for compliance; they do not justify rational assent to the principle itself. Thus, Larmore concludes that ‘to respect another person as an end is to require that coercive or political principles be as justifiable to that person as they presumably are to us’.5 It is this underlying idea of respect for persons that justifies Rawls’s so-called liberal principle of legitimacy, Larmore claims, the principle that ‘the fundamental terms of political life should be the object of reasonable agreement’.6 Christopher Eberle maintains that the idea that respect requires restraint is only plausible if we fail to distinguish pursuing public justification from exercising restraint when the search for public justifications fails. He accepts that

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citizens ought to look for broadly convincing reasons for the coercive laws they support. By attempting to uncover reasons in support of one’s favoured policies from within the perspectives of one’s fellow citizens, one allegedly shows respect for them as persons with their own views on the world. Sometimes, however, the search for public justification fails, and at that point there is no disrespect in supporting the laws that one truly thinks morally justified, even if for reasons some people reasonably reject.7 This critique of the argument from respect can be challenged on two fronts; first, whether mere pursuit of public justification expresses respect for persons, and second, whether respect for person is exhausted by such pursuit. On the first issue, we must distinguish the respect involved in arguing for one’s favoured policies in good faith based on the truth as one sees it (as opposed to simply acting strategically to get them enacted), from the respect allegedly involved in pursuing public justification without any commitment to restraint. I certainly show respect for persons when I engage in sincere deliberation, listening to the other side with an open mind, granting the possibility that I might come to change my mind as a result of the engagement, responding to objections posed by other points of view, sincerely trying to see how things look from other perspectives, and so on. Yet, such argumentation need not involve any pursuit of public justification. One pursues public justification, according to Eberle’s account, by looking for reasons for supporting one’s favoured policy from within the moral point of view of someone else. The question is why it is respectful to engage in such ‘reasoning from conjecture’8 if one has no commitment to exercising restraint. Eberle is no doubt right that ‘it would be morally terrific if each and every citizen had what each regards as adequate reason to support every piece of legislation to which they are subject’.9 Yet, I do not express respect for my fellow citizens by making whatever arguments I think will persuade them to support what I independently take to be the morally correct policy. If I believe that their doctrine does not support the policy, but find a way of convincing them it does, I am not acting in a way that respects their capacity as free and equal moral agents, even though they may end up having what they regard as an adequate reason to support the policy. I may admit that I do not believe premise X, but go on to claim that X supports the policy in question, if I think X really would support the policy in question, were X true. However, I engage in manipulation rather than justification if I successfully persuade you that X supports the policy when I believe the contrary. Eberle is not arguing for such manipulation, of course. My reason for describing the limits of respectful

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argument from conjecture is simply to raise the question of what pursuing public justification without a commitment to restraint adds, by way of respect, beyond the respect involved in ordinary deliberative engagement. Even if pursuit of broadly acceptable justifications does express respect for persons, there remains the question of whether respect for persons is exhausted by mere pursuit. Is our duty to respect persons fully satisfied by deliberation and reasoning from conjecture, even though we end up with laws and institutions that cannot be justified to all of the persons in question? Larmore’s fundamental contention is that it is not. This claim cannot be rebutted simply by pointing out that we respect people in some way by reasoning from conjecture. We respect people in some way by not torturing them, but not torturing people does not exhaust our duty of respect. Similarly, we respect people by trying to persuade them of the rightness of the policies we seek to enact, and perhaps also by looking for justifications of those policies from their points of view, but such conduct may not exhaust our duty of respect. Eberle has a second reason for thinking that restraint is not necessary for respect, which is that in the presence of a convergence of different reasons, state action can be fully respectful despite the absence of shared reasons.10 Conservatives and feminists may agree on restrictions on pornography, though for different reasons; realists and just war theorists may agree on the invasion of Afghanistan, though again, for different reasons. However, the fact that shared reasons are not necessary when there is no reasonable disagreement about what to do does not answer the question about what respect requires where we do disagree about what to do. Moreover, in any large society, there is unlikely to be convergence of all reasonable points of view on any major state action where the balance of shared or public reasons is not also positive. Although there may be convergence on policy for many people with many divergent perspectives, it is unlikely that there will be convergence from all reasonable perspectives, where the balance of public reasons is not already positive. In my view, the fundamental problem with Larmore’s argument from respect is that we cannot equate the exercise of political power for reasonably rejectable reasons with the naked threat of force. The requirement that the exercise of political power be justified by moral reasons rather than merely self-interest or factional interest is required by respect for persons, because the exercise of power based only on self-interest amounts to the rule of force. Might does not make right; that a majority supports a law cannot by itself bind me to obeying it. The requirement that the exercise of political power be publicly justified tries to

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assimilate the justification of power by non-public reasons to the naked exercise of power, that is to say, the exercise of power without any attempt at moral justification. Those who exercise political power for what they take to be good, though reasonably rejectable, moral reasons do not simply threaten, however. They offer what they take to be reasons that do justify the laws in question, in their view. Although the reasons in question are ones that others reasonably reject, these reasons are also ones that others could reasonably come to accept. Those who exercise political power based on non-public reasons engage the rational faculties of other citizens in exactly the same way they engage their own, aiming to show others that the laws or policies in question are morally justified. When constitutional essentials are decided on the grounds of nonpublic reasons, it is not the case that citizens are subject to reasons they could not reasonably endorse, for any citizen could reasonably come to endorse any reasonable comprehensive doctrine. So long as constitutional essentials are justifiable according to some reasonable comprehensive doctrine, citizens are not subject to causes for which there are no reasons, or for which they cannot see what the reasons are supposed to be. Rather, citizens are subject to causes that some citizens could not endorse without changing the religious or philosophical doctrine they reasonably espouse. The idea that some citizens are subject to forces that they cannot rationally endorse boils down to the claim that some citizens could not, for good reason, endorse these forces without changing their underlying comprehensive view. Yet, autonomy is never a matter of getting what one wants, prefers or judges right; it is rather about forming one’s wants or preferences in the right way, under conditions that allow for the exercise of reason and reflection in the development of one’s views. So long as we offer reasons for fundamental political decisions that we take to be good reasons, and so long as these reasons are ones that others could in principle accept, via some reasonable process of deliberation, we are still addressing our fellow citizens as moral agents, not trying to bypass their ability to engage in justificatory reasoning and treating them simply as objects to be manipulated with force, carrots or sticks. Larmore’s argument is that it is intrinsically disrespectful of moral agency to exercise power in a way that does not meet the reasonable acceptability criterion. There is a causal variant of the argument, however, which is to argue that exercising power in ways that are not publicly justifiable is likely to undermine citizens’ capacity for moral agency. In this version of the argument, the effect of our commitment to public justification on the exercise of the two moral powers is mediated by its effects on the laws and institutions we adopt, and the way these institutions affect the opportunities and resources at individuals’ disposal.

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For example, James Boettcher notes that ‘the subject matter of public reason [constitutional essentials and matters of basic justice, according to Rawls] bears significantly and directly on whether and how citizens are able freely to develop their basic moral powers on an equal basis’. Because decisions about these fundamental political questions influence the development and exercise of the moral powers, all citizens have a stake in how these questions are resolved.11 Paul Weithman’s reconstruction of the argument from respect also has this consequence-based structure, up to a point.12 Views that start off in the consequence-based mode often end up making an intrinsic or constitutive argument about the requirements of respect, however. Boettcher argues that ‘to demand that other citizens adopt the standpoint of a comprehensive doctrine in order to avail themselves of the justifying reason for answers to fundamental political questions . . . is to disregard their moral power freely to endorse a rival doctrine and conception of the good’.13 ‘Disregard’ might mean ‘undermine’, but it might also mean ‘insult or dishonour’. Weithman’s account also ends up making intrinsic or constitutive claims. If [constitutional essential and matters of basic justice] can only be supported by a conception someone [reasonably] rejects, she is subject to conditions which she finds rationally impenetrable, conditions for which she cannot see good reasons. Her situation can plausibly be described as one of subjection to a cause which is rationally or intellectually alien.14

The subjection in question simply consists in being subject to basic laws that one finds ‘intellectually alien’; such laws need not narrow one’s options or undermine the cognitive capacities necessary to exercise one’s moral powers. The justification of public reason based on its consequences for the development and exercise of the two moral powers is not successful. What the autonomous exercise of the two moral powers requires, most plausibly, is particular rights and liberties, such as freedom of conscience, speech and association, as well as particular social conditions, such as access to education, and safe and healthy neighbourhoods to grow up in. The question the defender of public reason must answer is why the development and exercise of our moral powers requires not just a broadly liberal set of rights and opportunities, but also the specification of this scheme on the basis of public reasons alone. The argument could be that a broadly liberal scheme of concrete rights and opportunities is by itself only sufficient for citizens to pass some significant threshold of autonomy, but not for them to be fully autonomous. As Paul Weithman points out, however, a more robust comprehensive liberalism might plausibly claim

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to do a better job of protecting citizens’s capacity to form and revise a conception of the good life.15 As explained in Chapter 1, if comprehensive liberal ideals of individualism and autonomy are ruled out as non-public, the commitment to public reason may end up constraining our rights and liberties in the name of survival and security. For example, Larmore argues that Kant’s ideal of autonomy and Mill’s ideal of individuality agree on the view that the highest value in human life is the capacity for critical reflective choice. We should always maintain only a contingent and never a constitutive allegiance to any substantial view of the good life, that is, to any concrete way of life involving a specific structure of purposes, significances, and activities . . . Such forms of life can be truly valuable . . . only if they are chosen from a position of critical detachment . . . [T]he supreme value . . . is what is expressed in this posture of choice: our freedom to rise above empirical circumstance (Kant), or our need to distinguish ourselves from others (Mill).

Larmore refers to this general idea, common to Kant and Mill, as individualism. On the one hand, many liberal thinkers have used the idea of individualism to justify neutrality, the view that ‘the state should not promote one controversial view of the good life at the expense of others’.16 On the other hand, individualism, in Kant, Mill and many of their liberal descendants, functions as ‘a general value, extending to all areas of social life’.17 Individualism is controversial, however, because people can reasonably conceive of their allegiance to their traditions and customs as constitutive of themselves and their identity, not as a matter of choice or decision. The predictable objection to Larmore’s own argument is that respect for persons as agents capable of justificatory reasoning is no less controversial an idea than is individualism. Are these not one and the same view about what is essentially human, namely our rationality, which permits us to act for reasons rather than simply being pushed about by causal forces? Larmore claims not. His idea of a person involves ‘simply the capacity of thinking and acting on the basis of reasons’, leaving it an open question what the source of these reasons is, in particular whether people must decide for themselves what counts as a good reason or whether they can draw their reasons from authority or tradition.18 We now have two conceptions of autonomy on the table – the thicker, Kantian/Millian conception, and the thinner, Larmorean conception. Both conceptions provide possible specifications of persons’ moral power to form and revise a conception of the good life. The Kantian/Millian conception

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could claim to be the more authentic specification, since it arguably provides a better account of people’s interest in being able to revise their conception of the good life. Faced with this perfectionist challenge, Larmore cannot say that relying on the perfectionist definition of autonomy would undermine citizens’ ability autonomously to exercise their two moral powers, because the question is how we should understand autonomy itself, and citizens’ moral powers. To know whether public reason is necessary to protect people’s ability to develop and exercise their capacity to form and revise a conception of the good life, we need to know which specification of this moral power is correct. But then we cannot use the principle of public reason to rule out the thicker, comprehensively liberal conception, on pain of circularity. We cannot assume public reason to define the two moral powers and then justify public reason on the basis of its being necessary to protect these powers so defined.

2 Gaus’s argument from respect for persons The second version of the argument from respect that I want to consider is due to Gerald Gaus. Although some of Gaus’s writings suggest a hybrid conception, his main position is that coercion must be justified to each person coerced, in terms of each person’s own reasons (so long as they are reasonable or otherwise qualified). Respect requires more than rational engagement, from the point of view of the coercing agent; it requires that all reasonable parties be able to accept the coercion as justified. I maintain that the argument does not succeed.

2.1 Weak presumption: The pro tanto badness of coercion The requirement to treat people as free and equal moral persons generates a presumption against coercion that is central to the liberal tradition.19 ‘The basic idea . . . is that the freedom to live one’s life as one chooses is the benchmark or presumption; departures from that condition . . . require additional justification’.20 Gaus has expressed this Fundamental Liberal Principle (FLP) in a number of different ways. The formula he employed in a 2003 paper focused on coercion in general, exercised by one person over another: (a) It is prima facie morally wrong for Alf to coerce Betty, or employ force against her. (b) With sufficient justification, the use of coercion or force by Alf against Betty may be morally justified.21

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His 2010 paper on justificatory liberalism’s ‘classical tilt’ narrowed the focus to coercion at the hands of the state, yielding a Political Liberty Principle: (1) A citizen is under no standing obligation to justify her actions to the state. (2) All use of force or coercion by the state against the persons of its citizens requires justification; in the absence of such justification, such force or coercion by the state is unjust.22

Neither of these presumptions implies that liberty always trumps other considerations, but simply that interference (at least in the form of coercive laws) requires justification; the ‘onus’ is on those who favour coercion, who therefore bear the ‘justificatory burden’.23 Nor do these presumptions deny the obvious truth that coercion can sometimes prevent coercion, and in particular, that the state’s public coercion may prevent private coercion.24 I find it helpful to formulate Gaus’s principle in terms of the distinction between prima facie and pro tanto reasons. A prima facie reason applies provisionally, given incomplete understanding of the situation, but on closer inspection may have ‘no residual reason-giving force’.25 In contrast, a pro tanto reason does apply in a given situation, given full knowledge, but may not be determinative, because other pro tanto reasons may also apply. Qualifying a reason as prima facie means that it probably applies; qualifying a reason as pro tanto means that it applies but may be outweighed or overridden. It is clear from the context that the FLP asserts that coercing someone is pro tanto morally wrong. If coercion were prima facie wrong, it would mean that coercion is usually wrong, but not always, and hence that if one has to decide what to do without full knowledge, one ought not tocoerce. A prima facie reason against coercion would suggest that our presumption against coercion is a social decision-rule that we agree to adopt in view of the consequences it will have, as a device for regulating our social interactions. If the presumption against coercion were an institutional rule justified by its consequences, it would not be a fundamental political principle that we can use to assess laws and institutions from a moral point of view. We must therefore interpret the presumption against coercion contained in the FLP as a claim about pro tanto moral reasons. At its simplest, the claim is that there is always something morally bad about coercing someone, even if this coercion can be justified, all things considered. Construed in this way, the FLP’s presumption against coercion can seem ‘deeply compelling’.26 Whether this is so depends on what we mean by coercion, however. In a descriptive, unmoralized sense, coercion involves threats of harm intended to replace the threatened agent’s judgement about

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what she should do with the judgement of the threatening agent (such that laws against murder are coercive). In a moralized conception, coercion involves threats of harm that violate the threatened person’s rights (such that laws against murder are not coercive). In the moralized account, there would be a very strong presumption against coercion – indeed, unless rights can be overridden, coercion would be forbidden – yet, not all state action would count as coercive. What’s more, if our account of coercion were moralized, it would presuppose an account of what rights people have. Yet, our principle of public justifiability is meant to help us figure out what rights we have. If it turns out that in specifying the principle, we have already presupposed a set of rights, the appeal to public justifiability will not do any work to help justify any particular set of rights. The notion of coercion at play in the various statements of Gaus’s presumption must be (and I think is) unmoralized, meaning that it is not relative to a particular set of moral rights and duties.27 For this reason, all state action counts as coercive, in his view – even morally correct, rightsrespecting action. I have previously questioned whether on the unmoralized account coercion is pro tanto morally wrong, that is, always morally bad in one respect.28 We would not say that laws against murder are bad in one respect but justified on the whole, as if the loss of the freedom to murder were outweighed by protection against murder. Nonetheless, as Gaus argues, there clearly is something bad about carrying out the punishment of convicted murderers. Even though the punishment is fully justified, it is unfortunate, because the murderer is still a human being and imprisonment is a great harm. Our reason not to harm the person in question is rebutted or outweighed, but it is not undermined, to use Gaus’s terminology.29 This argument does not assume that the liberty to murder has value, but simply that the humanity of the criminal still has value. Thus all coercion is pro tanto morally bad because of the pro tanto badness of punishment. Reasonably rejectable coercion is bad (pro tanto) for an additional reason. There will be many cases in which it is reasonable both to think coercion morally justified and to think it unjustified. What may reasonably seem to be a case of justifiable self-defence or justifiable aid in the defence of another may, in the eyes of the state, constitute murder. There is something bad about this trumping of the individual’s conscientious moral judgement, this substitution of the collectivity’s judgement for that of the individual, where we have a conflict of reasonable views about what morality requires. This badness is above and beyond the bad of having to punish a human being should the person in question violate the

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law. Following the argument of Chapter 2 Section 3, this substitution does not constitute paternalism, but it is still unfortunate. There is, then, a presumption against coercion in this sense, that coercion, and in particular, reasonably rejectable coercion is always in some respects morally bad, even when justified on the whole. This presumption is, however, quite weak. By itself, the pro tanto badness of coercion does not say anything about the nature or strength of the reasons that are necessary to outweigh the moral shadow that attaches to coercion. Furthermore, if all coercion is bad in one respect, the absence of laws that would prevent coercion is also bad-in-one-respect, the same respect in which coercion is bad. This is Steven Wall’s basic argument in favour of what he calls the symmetry thesis.30 If reasonably rejectable coercion is pro tanto bad, we have an additional reason not to coerce, but also an additional reason to coerce where coercion can prevent (reasonably rejectable) coercion.

2.2 Strong presumption: The heightened standard of justification The second step in Gaus’s argument sets the standard according to which the presumption against coercion may be successfully rebutted. It is a heightened standard, involving an element of multi-perspectival acceptability. In ‘Liberal Neutrality’, Gaus presented this standard in a way that suggested it was a constraint on reasons rather than on coercion directly. (III) To morally justify coercion requires impartial reasons for the coercion. (IV) A reason R is a moral, impartial reason justifying θ only if all fully rational moral agents coerced by θ-ing would acknowledge R, when presented with it, as a justification for θ-ing.31

This statement of the principle requires justification in terms of reasons shareable by all reasonable persons (making Gaus’s description of the principle as a ‘public reason principle’ appropriate).32 However, Gaus had in previous work maintained that justificatory reasons need not be shared by all.33 In his more recent work, Gaus has clarified this issue, settling on a convergence interpretation of the idea of public justification, that is, what I am calling the coercion framing of the principle.34 Gaus’s 2010 Public Justification Principle requires acceptability to each qualified point of view, but not necessarily for the same reasons: L is a justified coercive law only if each and every member of the public P has conclusive reason(s) R to accept L as binding on all.35

There is no requirement that R be the same for each member of the public.

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The claim that the pro tanto moral badness of (reasonably rejectable) coercion must meet a heightened standard of multi-perspectival acceptability elevates the moral costs of coercion above other kinds of considerations, and elevates the importance of not engaging in coercion above the importance of preventing coercion. If coercion must be justified at a heightened standard, then reasons of other kinds face an uphill battle, so to speak, in trying to justify state action. And if coercion must be justified at a heightened standard, failures to prevent coercion cannot be counted as being on par with acts of coercion. If the balance of reasons suggests engaging in coercion so as to prevent coercion, but the case is not so strong as to meet the heightened standard, we default to not coercing, even though there are reasonable objections to this choice too. We can grant that if the reasons for and against coercing seem tied, ‘not coercing’ should win. We can even grant that coercion must have strong reasons in its favour. The question is why the case for coercion should have to meet the elevated standard of multi-perspectival acceptability, such that even when there are powerful reasons in favour of coercion, we ought not to coerce if some qualified point of view disagrees. The fact that there is always something to be said against coercion (and two things to be said against reasonably rejectable coercion) does not establish that coercion should only be permissible if every member of the public’s total balance of reasons favours coercion. The step from the pro tanto reason against coercion to a requirement of multi-perspectival acceptability needs justification. What is Gaus’s reason for taking this step? Those who legislate without public justification claim the right to impose obligations on others who reasonably reject these obligations, or construe them differently. The problem Gaus sees is that to be free is ‘to see oneself as bound only by moral requirements that can be validated by one’s own point of view’.36 ‘Laws that cannot be endorsed by the reason of some citizens are authoritarian: some individuals claim the right to rule others and determine their obligations, and thus do not respect others as free and equal persons’.37 For those whose reasonable deliberative process does not lead them to support the law, the law imposes an obligation that they cannot view as self-imposed. Individuals may, of course, recognize natural moral duties, even laws of nature à la Locke, but if they conceive of themselves as free and equal, they cannot see themselves as bound by duties they disagree with simply because others more powerful or numerous than they believe in such duties. Although those who reasonably object might in the future come to accept the

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reasons that justify the law, they do not now accept them, but are subject to punishment if they refuse to obey. The thought is that to coerce you when you reasonably think the law is not justified is to put you in a position where, from your own perspective, you are simply responding to a threat. I am not simply threatening you, but you do not see yourself as having good moral reason for doing as I am requiring you to do. Therefore, if you do comply, you are either complying based on threat of force alone or, if you do think you are obligated, you are not taking seriously your free and equal moral personhood. To enact a law in this situation is to treat you as a thing, not to respect you as a person. Fully respecting someone as a free and equal moral person thus requires that any coercion we engage in be validated from the perspective of every reasonable (i.e., adequately rational and moral) person subject to it. I can see the force of this argument, but it has consequences that seem to me plainly unacceptable. It is just not plausible that any one instance of reasonably rejectable coercion is morally worse, no matter what it is, than any positive good that coercion might effect, in particular, the good of preventing (reasonably rejectable) coercion. Suppose a public of Alf and Betty confronts the question of whether a particular law is justified, and the only issue in each of their minds is whether the coercion the law prevents outweighs the coercion it involves. Alf thinks that the inherent coercion of the law outweighs the private coercion it will prevent; Betty thinks the benefits of the law in terms of private coercion prevented outweigh the law’s inherent coercion. According to the principle of public justifiability, Alf ’s reasonable objection to the law ought to be decisive. Yet, why should Alf ’s view should trump Betty’s, if respect for persons as rational and moral agents figures on both sides of the equation? We face a choice between acting coercively in a way that can be reasonably rejected, and failing to act coercively, which can also be reasonably rejected, precisely because other people’s rational nature makes a claim upon us to protect them from coercion. For basic liberties, many people will accept that a right to X means that the state may not violate the right to X for one person even to prevent someone else from violating the right to X of two or more people. Such rights function as side constraints rather than goals to be brought about by whatever means maximize their realization. This asymmetry makes such rights controversial, but if X is the right not to be murdered or the right not to be tortured, many will find these constraints plausible. There are some things one simply does not do, even for the sake of preventing other people from doing them (in larger numbers). ‘Engaging in reasonable but reasonably rejectable coercion’ cannot be one of

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these things. With the principle of public justification, we are not talking about a right not to be coerced in particular ways and in particular contexts, but a general restriction on coercion except where all reasonable moral points of view agree that the benefits of coercion outweigh the costs. Whatever the case is for asymmetrical treatment of killing/torture and failures to prevent killing/torture, it will not extend so far as to include reasonably rejectable coercion in general.

3 The order of public justification In this chapter, I have raised doubts about whether respect for persons as moral agents gives us reason to accept the principle of public justification. I have also argued that even if it does give us a reason, this reason is not powerful enough to justify a side constraint against reasonably-rejectable coercion, which is what is implied by a qualified acceptability standard applied to state action directly, with a default of inaction. Yet, it might be objected that I have taken an overly simplistic view of what counts as coercion. I assumed that the notion of coercion is either moralized or unmoralized. Since a moralized notion would presuppose a set of moral rights, it cannot be used to define a basic principle of political morality intended to provide a foundation for such rights. The principle thus has to apply to unmoralized coercion, and a side constraint against reasonably rejectable coercion in this neutral, descriptive sense is not plausible. These are not the only alternatives, however. In his most recent work, Gaus sets out a more sophisticated, multi-stage position that avoids the simple dichotomy between moralized and unmoralized senses of coercion. We first apply the principle of public justifiability to an unmoralized notion of coercion, yielding a set of abstract rights. Once these rights have been justified, the range of ways in which one can be coerced expands, and these new forms of coercion must themselves be publicly justifiable. The initial use of the principle gives rise to forms of coercion defined in terms of prior stages of justification, constituting what Gaus calls ‘the order of public justification’.38 The implausibility of a side constraint against reasonably-rejectable coercion in the unmoralized sense may not attach to this more complex, layered right against coercion. To assess this objection, I need to explain some of Gaus’s The Order of Public Reason (OPR). OPR is a wide-ranging and ambitious work, which attempts to reconcile Humean/evolutionary and Kantian/justificatory approaches to morality, as well as to reconcile moral authority with respect for the moral agency

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of free and equal persons. The key to both puzzles, not surprisingly, is public justification. Gaus claims that the principle of public justifiability is an implicit condition of possibility for the moral claims we make on each other in everyday, interpersonal morality. OPR is thus a work of ethics and meta-ethics, before it is a work of political philosophy. Yet, it is also a work of political philosophy, and that is the aspect that I want to focus on here, despite the risk of distorting the overall argument of the book.39 In OPR, Gaus defines the principle of public justification, first, in terms of the authority claims in ‘social morality’, by which he means moral rules that structure everyday social interaction. It may be admirable to act on one’s own view of what morality requires, but imposing this morality on others when they reasonable disagree stands in tension with the commitment to respect others as free and equal persons who must take responsibility for acting on their own best understanding of what morality requires. The claims to authority we make on each other in everyday moral life will be authoritarian, Gaus argues, unless they satisfy what he calls the Basic Principle of Public Justification (BPPJ): A moral imperative “j” in context C, based on rule L, is an authoritative requirement of social morality only if each normal moral agent has sufficient reasons to (a) internalize rule L, (b) hold that Lrequires F-type acts in circumstances Cand (c) moral agents generally conform to L.40

For our purposes, the essential part of this formula is clause (a), that every normal moral agent has sufficient reason to internalize a moral rule L.41 To determine what moral rules all normal moral agents have sufficient reason to internalize, Gaus formulates a deliberative version of the BPPJ. Although normal moral agents achieve some threshold of rationality and basic moral motivation, they can make mistakes of various kinds. Gaus therefore imagines an idealized ‘Public’ whose members reason correctly on the basis of propositions they have sufficient reason to believe, but are still divided by a diversity of conflicting religious, philosophical and moral perspectives. The deliberative version of (clause (a) of) the BPPJ is that L is a bona fide rule of social morality only if each and every Member of the Public endorses L as binding (and so to be internalized).42

The BPPJ thus involves a qualified acceptability or partially idealized unanimity requirement applied to authority, with a default of no-authority, that is, each is left to act according to the dictates of his or her reasonable moral conscience.43

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With the BPPJ on the table, we can proceed to the first stage of public justification, which yields two basic, abstract rights. This stage is itself divided into parts. First, we reason from the perspective of the concerns shared by all Members of the Public, that is, reasons shared by all qualified moral points of view. This shared perspective is the perspective of agency. Then, we check to see whether the conclusions reached on the basis of shared reasons are confirmed by each Member of the Public when he or she takes into consideration her total set of reasons, including now those not shared by all other qualified points of view. The Members of the Public need not be committed to autonomy in the liberal sense, according to which one must subject one’s goals to critical scrutiny so as to avoid behind dominated by unthinking tradition or custom. Yet, they must think of themselves as agents who make choices based on their own convictions.44 The perspective of agency therefore generates a presumption in favour of liberty. The key element of this presumption is the claim that ‘it is wrong to exercise one’s liberty so as to interfere with, block, or thwart the agency of another without justification’.45 Following Alan Gewirth, Gaus argues that thwarting of agency occurs via coercion and control of speech intended to control beliefs.46 The perspective of agency thus generates two basic rights – one against coercion, the other for freedom of conscience and thought. Gaus argues that these rights are confirmed when each qualified point of view reasons from the full set of its moral reasons. The rights against coercion and in favour of freedom of thought are ‘stable under full justification’, as he puts it.47 These rights are abstract, however, and in need of specification. What all Members of the Public endorse is ‘abstract freedom rights’, which must be interpreted as specific moral rules before they can provide a framework for social cooperation.48 There will be a variety of such specifications, each of which is preferable (according to all qualified points of view) to none at all, but none of which is unanimously recognized as best. The set of proposed rules all Members of the Public prefer to no-rule is the ‘socially eligible set’; invoking Pareto, we can drop proposals that we all agree are worse than some other proposal in the set, arriving at the ‘optimal eligible set’ or OES.49 So long as evolution, history or politics has led us to coordinate on a particular member of the OES, everyone has sufficient reason for recognizing the authority of this rule, even if they do not think it optimal, Gaus argues. I can either act according to L, which is not ideal but which is better than no-rule and which everyone else is currently following, or I can act according to my preferred rule M, which I think is ideal but which no one else is currently following. Gaus argues that in this situation, I can have

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sufficient reason to act on L, solely based on my own evaluative standards. This is an instance of higher-order unanimity, the nesting of inconclusive justification at one level by conclusive justification at another. At the first, basic stage of justification, the notion of coercion is simply that of threats/force against one’s natural person; the idea does not yet presuppose any established rights.50 Once basic rights are in place, however, justification proceeds to other issues, such as property rights, now taking for granted the abstract right not to be coerced and the abstract right of free thought, speech and conscience.51 Suppose that our actual system of property rights is one of the members of the eligible set, that is, one of the systems that all Members of the Public agree is morally preferable to the absence of any system of property rights. The requirement that coercion be publicly justifiable now applies to limitations of property rights, since what counts as coercion expands, as we progress through the order of justification.52 Laws threaten force against noncompliers. Given that basic rights and liberties are already in place, this coercion must meet the standard of being unanimously acceptable to qualified points of view.53 Thus, as we proceed through the stages of justification, initially abstract rights are specified, and the public justifiability requirement is applied to ever thicker (ever more moralized) notions of coercion. Gaus’s appeal to higher-order unanimity in this hierarchical order of justification has a number of important consequences, and raises some interesting problems. One consequence is that his principle of public justification need not be as (right-) libertarian as it initially seems. The next chapter will examine how the argument from higher-order unanimity can be used to defend the legitimacy of redistribution for the sake of egalitarian social justice, even when the principle of public justifiability is framed so as to apply to state action directly, with a default of inaction. Here, I want to comment on the asymmetrical treatment that coercion receives, in Gaus’s order of justification, and to argue that once this asymmetry is removed, we end up reintroducing something like the Rawlsian requirement of shared reasons, while eliminating the classically-liberal tilt of the view. Gaus emphasizes the negative aspect of our concern with agency. From the perspective of agency, it is wrong ‘to exercise one’s liberty so as to interfere with, block, or thwart the agency of another without justification’ (341). Why is it not also wrong, however, not to exercise one’s liberty so as to protect or promote the agency of others, without justification, when their agency is vulnerable to being interfered with by third parties, or undermined by unfortunate natural or social

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conditions? What is shared by all reasonable moral points of view is simply a concern with agency in some suitably thin sense. This general concern can be interpreted and specified in different ways, which place greater or lesser emphasis on the negative and positive claims the agency of others imposes upon us. So long as all Members of the Public agree that a given specification is preferable to none at all, the specification is in the eligible set. Yet, Gaus’s statement of the presumption in favour of liberty is formulated in purely negative terms. Stipped of this asymmetry, Gaus’s presumption in favour of liberty is simply our first public reason. Gaus attempts to justify his asymmetrical treatment of our shared concern with agency in his discussion of Alan Gewirth’s duty of assistance. From the shared perspective of agency we should accept ‘some fairly strong welfare rights’, Gaus admits.54 Yet, once we bring in the full diversity of reasonable evaluative standards, we have to recognize that differences of opinion about desert, risk, responsibility, and so on lead some reasonable persons to reject the strong right of assistance. Now, Gaus recognizes that the rights justified on the grounds of agency and endorsed under full justification are abstract. In the case of the right of assistance, Gaus classifies competing specifications as weaker or stronger, and argues that in the face of reasonable disagreement, we must default to the weaker specification. In the section on the limits on the argument from abstraction (17.6), however, he adopts a different procedure for dealing with differences of interpretation about the right to free speech. He imagines a debate between three Members of the Public, who agree on the abstract right to freedom of speech, but disagree about how exactly it should be specified, and so disagree about how far the right should protect explicit sexual content, for example. The three Members of the Public see reason to select one of the three specifications of the right, but do not agree which interpretation is best.55 In this case, Gaus treats competing specifications of an abstract right as being on a par, and concludes that our task is to find a way of selecting from the set of eligible interpretations. Why the different treatment of the two cases? Gaus might claim that it is reasonable to reject the strong right of assistance as against the alternative of not having any right of assistance at all, whereas none of the three specifications of the right of free speech is reasonably rejectable as against not having any such right. So, let us weaken the right of assistance until we arrive at the strongest interpretation that is better than no such right at all; this medium-strength right of assistance would then constitute the outer limit of the eligible set. There is some range of interpretations of the abstract right of assistance that under full justification are

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preferable to none at all, just as there is some range of eligible interpretations of the right of free speech. Within these sets of eligible interpretations, Gaus provides no reason for preferring weaker to stronger interpretations. What Gaus needs is a criterion for ranking specifications in terms of strength, and a principle that, in the absence of unanimous agreement on a stronger specification, we default to the weaker specification. We might think of this as the incremental application of the unanimous acceptability criterion. According to this view, a law will not be legitimate simply because it is unanimously preferred to no-law, on the matter at hand; it would also have to be unanimously preferred to any less coercive laws that are preferable to no-law. Gaus rejects this continuous application of the unanimity criterion on the grounds that so long as the law chosen is a member of the eligible set, every Member of the Public does have sufficient reason to endorse that law as authoritative based purely on her own evaluative standards, given what everyone else is doing.56 However, his treatment of the right to assistance suggests that in this case (but not the case of free speech), he is tacitly relying on an incremental version of the principle. The source of these difficulties, I believe, lies in an ambiguity about what the proper unit of analysis is, when applying the BPPJ: specific, concrete moral rules or abstract principles that animate whole systems of rules? Gaus’s initial answer is that we must focus on specific moral rules that directly guide individual conduct, because holistic assessment of systems of rules is cognitively too demanding, and because social cooperation depends on coordinating on specific rules, not abstract principles.57 However, Gaus also admits that the justification of any one rule may depend upon what other rules are in place, calling this an instance of ‘moral structure’. The idea is that some rules are more basic than others and so come first in the order of justification.58 The more basic rules, such as free speech, are closer to being principles, in the sense that they are less determinate and less subject to convergence in judgement about their proper application. Abstract principles are ‘not the ultimate aim of public justification’, but if Members of the Public can agree on some abstract principles, ‘they would at least have narrowed their problem to the justification of rules that are adequate interpretations of the already justified principles’.59 However, starting with abstract principles rather than specific rules changes the nature of the demand for public justification. Principles that no qualified point of view can reasonably reject are, in effect, public reasons. Gaus says that he rejects Rawls’s shared reasons requirement, and his emphasis on the importance of stability under full justification makes clear that what matters, ultimately, is each point

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of view’s total balance of reasons. Yet, the hierarchical order of justification reintroduces something like the Rawlsian idea of public reason. And once we eliminate the unjustified asymmetry that Gaus introduces between positive and negative concerns with agency, the view no longer tilts so strongly against egalitarian (social justice) liberalism. Gaus needs the order of justification to avoid the counter-intuitive implications of a simple right against reasonablyrejectable coercion. Yet, consistent application of the idea reintroduces shared reasons and removes the view’s classically-liberal tilt.

4

The Higher-Order Unanimity Escape Clause

The previous chapter argued that respect for persons does not require that coercion satisfy a qualified acceptability requirement. Part of the reasoning for this conclusion was that if applied to coercive state action directly, with a default of inaction, an idealized unanimity standard would create an implausibly expansive side constraint – a right against reasonably-rejectable coercion even where such coercion might be necessary to protect people from (reasonablyrejectable) coercion, or for the sake of distributive justice. This criticism is vulnerable to the objection that the practical implications of the coercion framing of the principle depend on the level at which it is applied. The key issue is how we individuate state actions. The qualified acceptability requirement can be applied to sets of laws and policies, such that even though bundles A and B are reasonably rejectable in favour each other, both A and B are conclusively preferred to the third option 0, which is not to have any common rules on the matters at hand. If one of A or B is chosen by some reasonable procedure, then the laws in question will be legitimate, in virtue of the fact of higher-order unanimity (the nesting of inconclusive justification as between A and B by the conclusive justification of A or B as against 0). The purpose of this chapter is to assess this escape clause from libertarianism, for the coercion framing of the principle of public justifiability.1 The first section of the chapter argues that the ‘asymmetry’ or social justice objection to public reason applies primarily to the coercion framing of the principle of public justification, not to the reasons-for-decisions variant. The second section outlines the response based on higher-order unanimity. Section 3 poses two questions about this response: (1) whether we should apply the demand for unanimous idealized acceptability non-incrementally, to the choice between some coercion and none, or incrementally, to the choice between more and less, and; (2) at what level of aggregation or bundling of polices we should apply the acceptability requirement. The argument is that if one is unwilling to adopt the incremental version of the principle, one must be committed to

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disaggregation. Section 4 sets out a criterion for feasible disaggregation, the unanimous unambiguous rankability rule, but also argues that maximal feasible disaggregation can disaggregate too much, if the coerciveness of package policies is not proportional to the number of component policies. The conclusion of these sections is that in order to use the argument from higher-order unanimity to rule out perfectionism while not ruling out redistribution, one must make quite specific assumptions about the set of reasonable moral preferences and about the measurement of coercion. Section 5 argues that reasonable people will naturally disagree about these matters, with the result that they will also disagree about which laws and policies are in the eligible set, potentially undermining the authority of law and social institutions. The final section of the chapter takes up the question of whether there is an analogous aggregation problem for the reasons framing of the principle.

1 The asymmetry objection and the anti-perfectionist dilemma One persistent worry about public reason is that demanding that the exercise of political power be publicly justifiable would rule out redistributive policies aimed at promoting social justice, not just perfectionist policies aimed at promoting controversial conceptions of the good. The main liberal argument for anti-perfectionism, Simon Caney explains, is that ‘principles of justice may only draw on moral considerations which cannot be reasonably rejected by anyone’, and that since there is reasonable controversy about conceptions of the good life, principles of justice should not be predicated upon assessment of these conceptions of the good.2 There is also reasonable disagreement about ‘issues of justice’, however, which seems to imply that ‘the state should abstain from enacting principles of justice in many of the areas we would expect the state to act (in the economy, defence, and punishment)’.3 If we are not willing to admit perfectionism, the commitment to public justifiability seems to lead ‘to a fairly libertarian view of legitimate state action’, in the words of Jonathan Quong.4 Faced with this unpalatable consequence, we might reject the fundamental liberal requirement of unanimous reasonable acceptability, but only at the cost of also abandoning liberal anti-perfectionism, generating what Caney calls the anti-perfectionist dilemma.5 If there is room for reasonable disagreement about distributive justice, as well as about human flourishing, liberals must either water

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down their standard of public justifiability, allowing some perfectionism, or ‘bite the bullet’, and sacrifice some justice-based policies.6 This objection trades on an ambiguity about the object of public justification. Public justifiability requires that principles of justice be acceptable to all reasonable points of view, Caney says, but it is controversy about laws and policies related to justice that leads to the dilemma. There is undoubtedly controversy about what level of taxation is just, about the death penalty, about affirmative action, and so on. Such controversy is rooted, in part, in the fact that different comprehensive doctrines take different positions on these questions. Controversy also arises from the fact that even people who accept Rawlsian public reason may disagree about the precise weighting and interpretation of their shared, public reasons, in disputed historical and sociological contexts. A given principle might be acceptable to all reasonable points of view, even while its implications for a specific matter of public policy are open to reasonable disagreement. If public justification simply requires that political decisions be made on the basis of such principles (public reasons), controversy about specific laws does not block state action. It is only when we frame the principle of public justification as a constraint on coercion directly, with a default of inaction, that reasonable disagreement threatens to undermine collective efforts to secure social justice. The anti-perfectionist dilemma can therefore be characterized as a choice between these two ways of framing the principle of public justification’s unanimous acceptability requirement – as a constraint on coercive state action directly, with a default of not having any common rule on the matter in question, or as a constraint on the reasons for political decisions, with a constraint of exclusion from deliberation. The worry about social justice is clearly plausible if we think of public justification as applying to state action directly. If redistribution of wealth counts as coercive state action, then all it takes is for one reasonable view to object and the redistribution is not legitimate. If the demand for public justifiability applies at the level of reasons, however, the worry is less pressing. The exclusion of non-public reasons from choices about the basic structure of society may well rule out some strongly egalitarian views, but it will also presumably rule out appeal to some highly inegalitarian views as well. The reasons-for-decisions approach to public justification is not a panacea for liberals, however, because it will not yield a strict anti-perfectionism, as we saw in Chapter 2 Section 3. Thus, one way of presenting the anti-perfectionist dilemma is as a choice between a reasons-for-decisions account of public justification, which will permit some perfectionism, or a coercion account of public justification,

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which will rule out all perfectionism but at the expense of also ruling out many reasonable but also reasonably contestable egalitarian policies.

2 The higher-order unanimity response Egalitarians who are attracted to the idea of public justification have a way of avoiding the anti-perfectionist dilemma, which is to frame the principle as a constraint on coercive state action directly, but also to make use of the argument from higher-order unanimity or nested inconclusiveness. The idea of unanimous reasonable acceptability becomes ambiguous as soon as we allow for there to be more than one alternative. In order to be adequately publicly justified, are we requiring that A be reasonably non-rejectable versus 0 only, or versus B as well? It would be irrational to conclude that the reasonable rejectability of A in favour of B forces us to settle for 0, since reasonable people might agree that 0 is worse than A or B.7 Our reasonable disagreement about which of the two possible laws is best would, in this case, be nested by reasonable agreement on the preferability of either law to the alternative of none at all. A law will therefore be proper if no one can reasonably deny that it is morally better than no law at all, and if it is selected by some reasonable8 procedure from the set of such laws. Thus, Gaus is led to develop the idea of the ‘optimal eligible set’ of proposals. The optimality criterion rules out Pareto dominated options (ones everyone agrees are worse than another eligible option), whereas the eligibility criterion rules out options some member of the public thinks morally worse than the default option of not having any law, on the matter at hand. To illustrate the idea of eligibility, Gaus presents the case of a four-member public confronting a choice between four proposals, as depicted in Table 4.1: Table 4.1 The optimal eligible set Members of the public Acceptable proposals

Alf

Betty

Charlie

Doris

A

B

C

D

B

A

A

A

C

D

B

B

D Default proposal (Liberty; no law) Unacceptable proposals

0 D

C

C

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Either A or B is preferred by every member of the public to no law at all on the matter. C is deemed worse than nothing by Betty and Doris, while D is deemed worse than nothing by Alf. Thus, only A and B are eligible. The four members of this public ‘all have a conclusive reason to select from this set, for both A and B are, from everyone’s evaluative standards, improvements on the absence of legislation or the condition of liberty’.9 This idea of higher-order unanimity or nested inconclusiveness allows Gaus to avoid the conclusion that only a minimal, merely protective state is legitimate. Economic redistribution can be legitimate, if we apply the argument from higher order unanimity to economic systems. Nagel was uncertain whether egalitarian economic policies could be publicly justified because it did not seem unreasonable to reject taxation for redistribution, in the same way that it seems unreasonable to reject having a common military policy.10 It is unreasonable to reject the idea of having a system of enforced property rights, however, and if we consider welfare schemes and estate taxes to be simply a part of a more egalitarian system of property rights, ‘redistributive’ policies would be legitimate if chosen democratically, or by some other reasonable procedure. The escape clause for justificatory liberals who would be egalitarians thus consists in arguing that taxation for redistribution is part of a more egalitarian system of property rights, and that having one of a range of such systems is better than having none at all, and that because both egalitarian and libertarian (i.e., right-libertarian) systems of property rights belong to this eligible set, both are legitimate if chosen by a reasonable political procedure, for example, democracy.

3 Two questions The argument from higher-order unanimity depends on aggregating or bundling policies so as to create a 3⫹ option space. The first question this argument raises is whether the demand for unanimous acceptability should be applied only to the choice between some coercion and none, instead of to the choice between more coercion and less. The second is what the proper level of aggregation of policies is.

3.1 Incremental versus non-incremental principles Libertarians may admit that the protection of property involves coercion, but claim that their preferred system of property rights with minimal redistribution of wealth

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and income involves less coercion than does the egalitarian system. The egalitarian scheme of property rights (including generous ‘redistribution’) may be justified with respect to a state of nature but not with respect to the authentically liberal scheme, which must carry the day, as the less coercive, and hence, default policy. If we want all coercion to be justified, we need to show that a given system involves no excess coercion – no coercion that can be reasonably rejected – not just that a particular package of coercion is better than none at all.11 To be a member of the eligible set, it is not sufficient that an option be unanimously reasonably preferable to the inactive/ non-coercive policy of having no policy at all; instead, it must be unanimously reasonably preferable to all less coercive policies. The objection thus relies on what we might call the incremental version of the public justifiability principle. A proposed law or package of laws L will be a member of the optimal eligible set, according to this principle, if and only if (1) not every member of the public prefers a law/package that is more coercive than L (optimality), and (2) no member of the public prefers a law that is less coercive than L (eligibility). Conclusive public justification is required for each increment of coercion, permitting democratic choice only between equally coercive policies unanimously reasonably preferred to less coercive policies. This version of the principle is demandingly libertarian. The more fine-grained one’s measurement of degrees of coerciveness, the closer the most libertarian of reasonable citizens comes to being a dictator. As we make ever smaller distinctions between the levels of coerciveness of rival policies, we place correspondingly greater weight on the views of the barely reasonable libertarian. Gaus rejects the incremental interpretation of the principle, on the grounds that it confuses conclusive justification as eligible (better than nothing) with conclusive justification as best, which Gaus refers to as ‘simple conclusive justification’.12 He imagines a scenario in which a public composed of Alf and Betty is deciding between laws A and B, with A involving x amount of state coercion, and B involving x ⫹ y amount of state coercion. Alf says to Betty: “I hold that A is conclusively justified, but I disagree that the additional y coercion involved in B is justified. So B cannot be conclusively justified to me. On the other hand, if you think that x ⫹ y degree of coercion is conclusively justified, you must think that x coercion is conclusively justified, and so you must agree that A is conclusively justified. Thus, A, but not B is conclusively justified between us. . .13

Gaus comments that ‘Alf ’s crucial claim (that his less coercive alternative is conclusively justified in the simple sense to Betty) is false because she believes that the real benefits of coercion only set in when higher levels are reached’.14 It

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is true that Betty’s belief that B is optimal does not by itself imply that she thinks A better than nothing. But if Betty does not think A better than nothing, A is ineligible, according to the incremental version of the principle. The incremental public justifiability principle holds that for an option to be eligible, relative to some set of possibilities, it must be unanimously preferred to all less coercive options, and not unanimously rejected in favour of any more coercive option. According to this standard, if Betty’s ranking is B0A, A is ineligible. Suppose, to the contrary, that Betty does think A better than nothing, that is, her ranking is BA0. When Alf applies the incremental version of the public justifiability principle, he does not claim that he has conclusively justified A as best. He recognizes the reasonableness of Betty’s ranking B first, but points out that she accepts that A is better than nothing. Alf then claims that the additional coercion involved in B compared to A must be acceptable from all qualified points of view (i.e., his as well as hers), which is just to say that B must be unanimously preferred to all less coercive policies. The public justifiability principle imposes a constraint of multi-perspectival acceptability on the claim that a law’s moral benefits outweigh its coercion costs. The incremental version of the principle simply applies this constraint continuously, to the decision to have more rather than less coercion, rather than as a step function, to the decision to have some coercion rather than none.

3.2 The aggregation or ‘zoom’ problem The demand for conclusive justification requires a default that obtains when justification is inconclusive. This demand can be applied at different levels, to different descriptions of the space of choices, yielding different default policies. The argument from ‘higher-order unanimity’ makes use of this fact. It initially

Property Rights = P

Redistribution =R

No Property Rights = ¬P

No Redistribution = ¬R

Figure 4.1 Disaggregated application of qualified unanimity requirement

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seems that redistribution is illegitimate because we apply the criterion of conclusive justification to two choices separately – whether to have a system of property rights (conclusively ‘yes’), and then whether to tax for redistribution (inconclusive, hence ‘no’), as illustrated in Figure 4.1. In this schema, we apply the qualified unanimity criterion first to P versus ¬P, yielding P, and then to R versus ¬R, yielding ¬R. The three-option description aggregates these choices: A: P, R ⫽ property rights plus redistributive taxation B: P, ¬R ⫽ enforcement of property rights, no redistributive taxation 0: ¬P, ¬R ⫽ no enforcement of property rights (hence, no redistributive taxation either)

A and B are inconclusively justified against each other, but each is conclusively justified as opposed to 0. Hence, A and B are both members of the eligible set, and so, legitimate if chosen democratically. When the requirement of conclusive justification is applied to the single, three-option choice, it yields a different result than it does when applied to the two binary choices separately. Similar reasoning in the case of restrictions on smoking could justify rather severe restrictions. Consider a proposed law banning smoking in bars and restaurants. Such a law is coercive, and reasonably rejectable, let us suppose, so it initially seems impermissible. Yet, the government also bans smoking on airplanes and requires restaurants to have non-smoking sections. If we aggregate these various policies, as the property examples suggests we can, we might face a choice between the following options: A ⫽ Severely restrictive laws versus smoking B ⫽ Mildly restrictive laws versus smoking 0 ⫽ No laws versus smoking

If 0 meant that people would be allowed to smoke on airplanes, it might be unreasonable to prefer this option to the mildly restrictive or the severe policy, either of which would then be permissible, if chosen democratically. One might invoke an incremental version of the principle to argue that the stricter law against smoking is more coercive than the more permissive law, and therefore, must be conclusively justified as against the milder anti-smoking regime, not just against the option of having no laws at all about smoking. If one adopts the non-incremental interpretation of the principle, however, one will have to rely on some criterion about the level of aggregation of policies in order to rule out the democratic legitimacy of the highly restrictive policies, while not thereby ruling out the legitimacy of redistribution as well.

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The argument from higher-order unanimity might also licence significant restrictions in the case of abortion. Disaggregated, we face two choices – whether to have a law against abortion (inconclusive, hence ‘no’), and whether to have a law against murder (conclusively ‘yes’). Yet, we could consider prohibition of abortion to be an element of the prohibition of murder, and so describe our options as follows: A ⫽ Broad law against murder (i.e., some abortions are prohibited, along with ordinary murders) B ⫽ Narrow law against murder (i.e., no abortions are prohibited, only murders) 0 ⫽ No law against murder.

‘No law’ is now the non-coercive/inactive baseline, but this anarchical default is reasonably rejectable in favour of either the narrow or the broad murder law. Applied to this description of the space of choices, the requirement of conclusive justification permits some laws against abortion, so long as such laws are chosen democratically from among the set of murder laws that are rationally preferable to no law at all. As in the smoking example, one might invoke an incremental version of the public justifiability principle. The broader the state’s definition of murder, one might argue, the more it is engaged in coercion. On the incremental version of the principle, every increase in the scope of the state’s law against murder would have to be conclusively justified as against all narrower definitions. If we insist on the non-incremental version of the principle, however, the only way to resist the democratic legitimacy of highly restrictive abortion laws would be to appeal to an aggregation criterion that requires a lot of disaggregation, again raising doubts about the legitimacy of aggregation in the property and redistribution case. Moreover, if we are allowed to aggregate policies to this level, why not even further? Instead of demanding conclusive justification for cultural and economic policies separately, we could apply the criterion to the choice between a perfectionist state (i.e., one that aims to improve people’s lives for their own sakes, based on reasonably contestable ideals of a good life), a non-perfectionist state, and no state at all. If the inactive/non-coercive baseline is no state at all, then some fairly strong forms of perfectionism would be legitimate, if chosen democratically. The problem with the argument from higher-order unanimity is therefore that there are different ways to divide up policies, and so, different ways to specify the inactive or non-coercive baseline. When the qualified acceptability requirement is applied at a disaggregated level to separate choices between action and inaction – zoomed in, as it were – the principle has libertarian consequences. Conversely, it seems possible to legitimize a lot of very coercive state action by ‘zooming out’, and applying the unanimity criterion at a higher level of aggregation, to three-option cases in which the inactive baseline approaches the state of nature.

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It will be tempting for egalitarian liberals to apply the criterion of higher-order unanimity at a higher level of aggregation to permit redistribution, although not so high as to permit paternalist perfectionism, but then at lower level, to rule out the prohibition of abortion. Yet, this results-oriented reasoning seems unprincipled.

3.3 Incremental public justification and disaggregation There is a close connection between the question of whether to adopt an incremental version of the principle and the question of the level of aggregation at which we should apply the principle. The greater the level of aggregation, the closer the non-coercive default will be to a state of nature, the less demanding will be the requirement of unanimous acceptability, and the more tempting it will be to interpret the principle of public justifiability in incremental terms. Suppose we are considering binary policy domains X, Y and Z. In the disaggregated space, X has to be unanimously acceptable with respect to ¬X, Y unanimously acceptable with respect to ¬Y, and Z unanimously acceptable with respect to ¬Z. Aggregated, there are eight options: XYZ, XY¬Z, X¬YZ, ¬XYZ, X¬Y¬Z, ¬X¬YZ, ¬XY¬Z, ¬X¬YZ, and ¬X¬Y¬Z. Each of the first seven options will be eligible if it is unanimously superior to the last, ¬X¬Y¬Z, which is the inactive, default option in the aggregated space. As the level of aggregation rises, the default compared to which a package of policies must be invulnerable to reasonable rejection approaches anarchy, and the size of the optimal eligible set increases, since many different packages of policies, some highly coercive, will be better than not having any common rule in any of these areas of policy. The higher the level of aggregation, the weaker the criterion of public justifiability becomes. Consider a case of questionable aggregation – whether to have a system of property rights, and whether to use public money to support high culture. The qualified unanimity requirement applied to each question separately would rule in property rights, and rule out public support for culture. Aggregating these options (i.e., ‘zooming out’) yields to the following set of options: A ⫽ Property rights, support for culture, or B ⫽ Property rights, no support for culture 0 ⫽ No property rights (and so, no support for culture either).

This bundling of policies seems arbitrary, since culture and property seem to be separate issues. The only reason the promotion of high culture passes the qualified acceptability standard is that we have bundled it with the

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protection of property, which is such an essential policy that, if we had to choose between protecting property and promoting culture, on the one hand, or doing neither, it would be unreasonable to choose ‘neither’. The question is why it should be sufficient, for the promotion of culture to be legitimate if chosen democratically, that the good of protecting property outweighs the bad of promoting culture. Surely the standard should be whether it is reasonable to reject the promotion of culture holding the protection of property constant. Otherwise, we are not requiring that all coercion be invulnerable to reasonable rejection, but just that any given coercive policy be part of a package of coercive policies that is not reasonably rejectable as compared to the absence of the whole package. It is because we want all coercion to pass the qualified unanimity requirement (assuming, for the sake of argument, that we should accept the coercion framing of the principle, which of course I deny) that we should not arbitrarily lump policies together, allowing reasonably rejectable coercion of one kind (e.g., state promotion of high culture) to piggy back on the strength of the case for coercion of another kind (e.g., state protection of property rights). Arbitrary bundling of policies (i.e., over-aggregation) allows reasonably rejectable coercion to slip through the cracks, and gain legitimacy without being truly publicly justifiable, if we are using a non-incremental version of the principle. Conversely, if the incremental version of the principle were not justified, it would not be clear why there is any problem with the arbitrary aggregation of policies (i.e., overaggregation, ‘zooming out’ too much). If the degree of coercion contained in a package policy is proportional to the number of component policies (and if disaggregation is feasible), disaggregation mimics the incremental version of the principle. Take the simplest case, where there are only three options and the degree of coercion is equal to the number of component policies, as depicted in Table 4.2: Table 4.2 Coercion ⫽ # of component policies Policy A: Property rights, support for culture (P, C)

Degree of state coercion 2

B: Property rights, no support for culture (P, ¬C)

1

0: No property rights, no support for culture (¬P, ¬C)

0

The incremental version of the principle applied at the aggregated level requires that A be unanimously acceptable as against B and 0, and that B be unanimously acceptable with respect to 0, that is, it must be the case that A ⬎u B ⬎u 0

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(where ⬎u means ‘is unanimously preferred to’). Disaggregation requires that each of the two component policies P and C be unanimously acceptable as compared to the absence of that policy. However, to require that P be unanimously acceptable with respect to ¬P is to require that A and B be unanimously acceptable with respect to 0. Similarly, to require that C be unanimously acceptable with respect to ¬C is to require that A be unanimously acceptable with respect to B and 0. Putting these conditions together yields the incremental criterion in the aggregated space, that is, A must be unanimously acceptable with respect to B, and both A and B must be unanimously acceptable with respect to 0. So, to disaggregate policies is equivalent to applying the incremental version of the principle in the aggregated space, so long as coercion is measured by the number of component policies (and is feasible). The situation changes only slightly if we move to the more general case, in which all four options are feasible, and where coercion is proportional rather than strictly equal to the number of component policies. We can label the options via a simple table, shown in Figure 4.2: Y

¬Y

X

A

B

¬X

C

0

Figure 4.2 Aggregated and disaggregated options

If coercion is only proportional rather than equal to the number of component policies, we know that A ⬎c {B, C} ⬎c 0, (where ⬎c means ‘is more coercive than’), but we do not know whether B is more or less coercive than C. In this case, B and C have to be unanimously acceptable against 0, while A has to be unanimously acceptable as against B, C and 0, that is, A ⬎u B, C ⬎u 0. But this is what disaggregation implies, so long as it is feasible: 1. If X ⬎u ¬X, then A ⬎u C, and B ⬎u 0 2. If Y ⬎u ¬Y, then A ⬎u B, and C ⬎u 0, 3. 1 and 2 imply A ⬎u B, C ⬎u 0 If coercion is only proportional to the number of component policies, such that B could be more coercive than C, for example, then the incremental-aggregated version would require qualified acceptability for B with respect to C, whereas

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the non-incremental version would only require that both be acceptable with respect to 0. Nonetheless, so long as coercion is proportional to the number of component policies, the incremental rule and the disaggregation rule accomplish much the same thing. This equivalence is subject to one important condition, however, which is feasibility of disaggregation. To see why, consider the ranking A0CB. The person with this ranking favours X and Y together, but not one without the other, because (in this person’s view) the benefits of the micro-level policies accrue only when both are in place. If this ranking is reasonable, the qualified unanimity requirement cannot be applied at the disaggregated level, because those with this point of view cannot express a preference about X versus ¬X, independent of Y versus ¬Y. I turn to this problem in the next section.

4 Maximal feasible disaggregation The upshot of the previous section is that if we are committed to a nonincremental version of the principle, we will have to adopt a rule of maximal disaggregation. In some cases, however, disaggregation may not be feasible. Why does the bundling of welfare policy with the protection of property rights not seem as arbitrary as does the bundling of property rights with the protection of culture? The answer is that whether or not one is in favour of property rights may reasonably depend on whether policies are in place to help the least well-off and to redistribute wealth in the direction of equality. After all, property rights bar those without property from having access to the world’s resources. Perhaps such rights are justified only if accompanied by a system of welfare ensuring that everyone enjoys a basic minimum, or inheritance taxes, or some other such redistributive policies. Of course, reasonable people will disagree about whether this is the case. But if it is reasonable to think that it is the case, some persons will not be able to express a preference in the disaggregated space of policies. Gaus proposes that we should consider policies independent only when all reasonable parties take them to be independent.15 At first glance, it may not be obvious why we should favour more holistic views in this way. However, there is an important difference between those who see issues as being disconnected and those who see them as being connected. The person with the more holistic or ‘joined-up’ preference cannot express a preference about issues separately, whereas a person with a modular preference

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can express a preference about issues in the aggregated space. If the public justifiability criterion requires unanimity of reasonable preferences and my preference is reasonable, I have to be able to give an answer. If I can reasonably think that without redistributive policies, it would be better not to have a system of property rights at all, the issues of redistribution and property are not independent. I cannot rank ‘property rights’ versus ‘no property rights’ in general, because my preference over these options depends on whether there will be any redistribution. The contrast between redistribution and the promotion of culture is straightforward. No one reasonably thinks ‘I am in favour of state promotion of high culture, but if there is not going to be any state promotion of culture, then I prefer anarchy (i.e., no property rights)’. Reasonable moral preference orderings do not contain this kind of dependence between the issues of property and culture, making the two issues separable. Thus, we arrive at a first criterion of feasible disaggregation, or independence. Our rule is disaggregate so as to avoid allowing coercion to slip through the cracks without having to secure unanimous approval of reasonable views, but only to the point at which all reasonable views can still rank the options on each disaggregated issue, independently of the others. We can refer to this rule as maximal feasible disaggregation, where feasibility is defined by the criterion of unanimous unambiguous rankability. When feasibility is defined as unanimous rankability, the criterion of maximal feasible disaggregation will tend to be permissive of state action (assuming, for the moment, that we are sticking with the non-incremental version of the principle). To see why this is, it will be helpful to consider our simple two-policy case, in the version that includes option C. The table from Figure 4.2 permits easy depiction of preference orderings. Figure 4.3 gives one such ordering: 1 3

2 4

X, Y X, ¬Y = A > B > C > 0 = ¬X, Y ¬X, ¬Y

Figure 4.3 Table depicting a preference ordering

It is then straightforward to see which preference orderings involve reversals, that is, require aggregation, as shown in Figures 4.4, 4.5, and 4.6. Consider first those preferences that rank A first, of which there are six16:

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ABC0

AB0C

ACB0

AC0B

A0BC

A0CB

1 3

1 4

1 2

1 2

1 3

1 4

2 4

2 3

3 4

4 3

4 2

3 2

Figure 4.4 Preference orderings

In only two cases are there no reversals: ABC0

ACB0

1