Public Justification and the
Meaning of Difference
Political and
Deliberative Liberalism
RMA Philosophy Thesis
Supervisor: Dr. James Gledhill
Author: Jori Jansen
Thesis handed in May 2018 in requirement of completing RMA Philosophy at the University of Amsterdam
Supervisor: Dr. James Gledhill Second Reader: Dr. Robin Celikates Author: Jori Jansen, 11112247
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You do not argue in political philosophy over the benefits of constitutional liberal democracy; what you try to do is see what that concept leads to, what it entails, what it demands. As [Rawls] says again and again, you start with the implicit notions and work them out.
– Burton Dreben1
By allowing the reasonable to stand as the sole criterion of political justification, we are able to leave all comprehensive doctrines to the side. We do not have to determine whether our political claims are justified to each person, given the details of her comprehensive doctrines.
– Larry Krasnoff2
The aim of treating all as free and equal persons to whom justification is owed is faced with the problem of the indeter-minacy of the justification of any specific political conception. It is, I think, Rawls’s legacy to present this deep problem to us and show how radically we must revise our political theori-zing if we take it seriously. It falls to us to more adequately cope with it.
– Gerald Gaus3
1. Dreben, 2003; p.323 2. Krasnoff, 1998; p.282 3. Gaus, 2013; p.249
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Table of Contents
Introduction 9
1.1. Differences 13
Overlapping Consensus 17
2.1. The Political Necessity of the Overlapping Consensus 19
2.2. The Formation of an Overlapping Consensus 23
2.3. The Unity of an Overlapping Consensus 26
Public Reason 31
3.1. The Contours of Public Reason 31
3.2. The Two Guises of Public Reason 34
3.3. The Meaning of Legitimacy 36
Laden’s Deliberative Democracy 43
4.1. Deliberation 44 4.1.1. Reasonableness Revisited 44 4.1.2. Political Deliberation 46 4.1.3 Form-Content Distinction 48 4.1.4. Public Reason 50 4.2. Social Unity 51 4.2.1. Exclusion 52
4.2.2. Constructive social power 53
4.2.3 Assimilation: Burdensomeness 54
4.3. Stability 55
Reasoning and the reasonable 59
5.1. Reliance 59
5.2. The Meaning of the Political Principles 61
5.3. Structural Issues 63
5.4. Conceptions of Reason( ing) 67
Conclusion 71 Bibliography 75
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Introduction
The stated goal of Political Liberalism is “[g]iven the fact of the reasonable pluralism of democratic culture … to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental political questions”.4 The fact of reasonable pluralism is the idea that under free democratic institutions citizens will –even in the long run– not be able to converge the comprehensive doctrines that they hold and stick to holding various and mutually exclusive beliefs. Rawls painstakingly develops his political conception called justi-ce-as-fairness as an answer to this question.5 A striking fact is that Rawls speaks –in the first introduction to Political Liberalism– of the hope that his lengthy and exclusive focus on the “basic historical questions” concerning the meaning and basis of tolerance and agreement in the face of pluralism might yield us the con-ceptions and principles that should be applicable to more pressing contemporary political problems as well.6
The central issue of thesis is related to this issue and will be focused on is that of difference. The meaning of difference can be captured by asking what kind of reasons can find a ground within the shared public reason of a liberal democratic society and consequently what kind of considerations of citizens find their way into political theory and argument. This involves questions such as how these reasons relate to the citizens that bring them forward and what role identities different from that of being a citizen can have on the political deliberations in society. For Rawls this is determined by the political conception of justice and the bounds of public reason.
For this thesis the challenge that Rawls sets out in the passage referred to above is taken as a starting point. One could try to read Rawls to find clues on what the answers to the ‘more pressing problems’ might be and how to redeem the prospect that this framework is relevant for contemporary political problems. Rawls himself identified these in Political Liberalism to be those issues of race, ethnicity, and gender.7 These are obviously contentious issues, and philosophy 4. Rawls, J. (1993). Political Liberalism. New York, NY: Columbia University Press. See p.xix 5. “justice-as-fairness” follows the clear naming convention from Dreben, 2003; p.320 6. Political Liberalism, p.xxix
7. Political Liberalism, p.xxviii
1
has not always had –and still did not sufficiently develop– the attention for them that they merit.8 Hence another approach to tackle the issue of difference is following this spirit. This would entail identifying the parts of Rawls that can be interpreted to be of use for this project and supplementing Rawls’s ideal theory with some non-ideal theory that addresses the above mentioned issues.
There have been critiques from many different theorists about whether the claim of Rawls’s project is in fact feasible. For example there are several critics who argue that Rawls’s ideal theory lacks a social theory that could contribute to a proper notion of social inequality or social power.9 Sheldon Wolin for example argues that Rawls’s conception of public reason has multiple flaws.10 Wolin argues that Rawls looks at politics from the viewpoint of those who are successful. He forgets to ask whether liberal society creates structural inequalities, and does not question whether institutions have traditionally perpetuated inequality. The important idea for this discussion is the idea that the notion of difference Rawls deals with is “politically trivial”.11 That is to say that the ready–made categories of equal rights do not seem to cut to the bottom of inequality that liberal societies have historically sustained.
Charles Mills’s interpretation of Rawls stresses the social contract background and especially the explanatory role of such theories as a sort of fictional histo-ry. He argues that there is a lack of recognition in Rawls’ theory the relevance of social identities that people might have beyond all being citizens. Mills has strong and sometimes scathing criticism of Rawls but engages with his theory. He writes, “[s]o your whole political orientation as a person of color in moderni-ty is oppositional in a way that the white political orientation is not, and this has obvious implications for your normative priorities. Making sense of your distinc-tive politics, understanding your particular perspecdistinc-tive on justice requires –even for seemingly abstract philosophy– contextualizing it within this history, taking account of the input of other pertinent disciplines and developing, accordingly, a set of categories sensitized to these differences.”12 Mills points out the contextua-lization that needs to happen in order to make political theory responsive to the specific problem of racial inequality and oppression. The result of the endeavor is to determine conceptual tools that are able to deal with this issue –and suppo-sedly other sorts of oppression. Mills himself states that the specification of the details of this view will be the topic of a next book.
Mills solution is to add a racial contract that underlies the standard social contract. An addition that makes sense of –or makes explicit– the social norms that underlie the notion of citizenship in racial democracies.13 This means that
8. E.g. Mills’s tabling of race in political philosophy (2017; pp.28–48) 9. Cf. Young, 1995. Wolin, 1996. Laden, 2001. Mills, 1997, 2017. 10. Wolin, 1998; p.102
11. Wolin, 1998; p.103 12. Mills, 2017; p.196
| 11 the original position is not a “sanitized choice situation” that looks out over a well-ordered society, but rather one that looks out over a society that is implica-ted by the history of white supremacy. In this way the racialized social ontology that is actually present in US society and “[r]acial injustice and its correction would thus be center stage”.14 The agreement made would then consist of the po-licies and principles that would be chosen under this conditions where contrac-tees understand that they could end up as a person of color in such a society.
The basic choice to develop his theory as a black radical liberalism is defended by him through arguing that liberalism is the “globally hegemonic political philosophy”. These two motivating forces stand behind the question asked in this thesis. This thesis, however, takes up the challenges set out by Mills in a different way than amending the original position. It also does not focus on race nor ge-nder specifically, but asks in what way non-political identities and various forms oppression can be codified in the conceptual resources of political philosophy.
Rawls interlocutor in this thesis is Anthony Laden. His work implies doubts whether the “full panoply of human diversity” can be taken into account in a political liberalism that focuses so much on comprehensive doctrines.15 Laden’s affinity to Rawls seems to be rather close, because he both directly says so, as well as orients his theory centrally around the “fact of deep diversity” which has a clear reference to Rawlsian theory.16 One of Laden’s animating ideas is that citizens can be wronged in their capacities as citizens through the treatment of other aspects of their identity. An example is that a nominally liberal sexist or racist society wrongs women or people of color respectively in the full value of their citizenship. In Reasonably Radical Laden works on such issues by trying to make the claims of the politics of identity understandable in liberal terminology. This goal means that Laden has to focus on the most insistent critiques of libera-lism that theorists of the politics of identity have made. Those are the problems of assimilation –roughly the idea that liberalism banks too much on nondescript ‘liberal robot’ individuals to make it work– and exclusion –the idea that certain voices and problems cannot be adequately formulated nor addressed within the framework. Through the inclusion of a conceptualization of power and a more complete acknowledgment of entanglement of various social positions and citi-zenship, Laden’s theory seems to promise a critical leg up over justice-as-fairness.
The first step of the comparison is to establish a framework of comparison. This is in fact not an easy task. First, the basic facts that both theories work with are not empirical facts, but rather specifically related to the theoretical frame-works themselves. The fact of reasonable pluralism can only truly make sense within the context of the burdens of judgment and eventually the possibility of
14. Mills, 2017; p.213
15. Laden, A.S. (2001). Reasonably Radical; Deliberative Liberalism and the Politics of Identity. Ithaca, NY: Cornell University Press. See p.1
an overlapping consensus, even if Rawls says history gives examples of reasona-ble comprehensive doctrines.17
This is compounded by the theoretical self–understanding Laden and Rawls –in Laden’s interpretation– have. In particular the idea that political philoso-phy is always itself part of politics. There is no third theoretical perspective to evaluate the both theories from that is outside engagement with their specifica-tion of their objects themselves. The two frameworks that the philosophers work with are related though. Both working within the liberal democratic tradition and –loosely speaking– within political liberalism. The core concepts that the authors share are public reason(s), the principle of legitimacy, stability, reason, and –incommensurable– difference. The conceptualization of these terms differs between the authors and this has consequences for the kinds of reasons that can be accepted as valid within public reason. This means that this thesis will most importantly be an internal conceptual analysis of the two authors. In the back-ground there are the two challenges -one by Rawls and one by Mills- that give direction to the inquiry and give the criteria to judge the potential answers to the question of what the different theoretical structures and different acceptable reasons in public reason mean.
Rawls’s later work on political liberalism in which he treats these issues, is complex and tentative –even contradictory– in nature. This has made Burton Dreben note that Political Liberalism is a difficult text to interpret. His explana-tion of this fact is that he thinks that Rawls himself did not yet reach full clarity on what he wanted to say.18 The view on the ideas that are set out in the text is not fully clear. Rawls’s understanding grew over time and developed in later works. This means it is a necessary endeavor to get a decent view of what Rawls meant in the first place. The second and third chapter will develop the ground-work and provide a critical analysis of the concepts of the overlapping consensus, public reason and the political legitimacy that Rawls uses.
These concepts are central to the comparison between Laden and Rawls with the question of what reasons can be acceptable in the background. The overlap-ping consensus is the necessary condition for a stable society to obtain under the circumstances of reasonable pluralism. The focal point of the concept is that it embodies the idea that citizens can support the same (or similar) political con-ception for different comprehensive reasons.19 Public reason is the concept that embodies the constraints that the fact of reasonable pluralism combined with the notion of the political (in Rawls sense) lays upon political justification. It is the reason that a society has to make its plan and come to its decisions, which Rawls wants to express in such a way that it is compatible with “a political conception
17. Political Liberalism, p.xxv 18. Dreben, 2003; p.320
19. Dignitatis humanae is the historical example that Rawls often touts. This is the document from the Second Vatican Council in which the Catholic Church embraced religious toleration of doctrinal diversity based on the equal worth of humans as creatures of god.
differences | 13 that is broadly speaking liberal”.20
The conclusions of these chapters will be that public reason, a determined political conception and legitimacy are not only bound together in the original position but at a more fundamental level. This makes space for an alternative interpretations of the concept of public reason and at the same time cements the conceptua affinity between Rawls and Laden. Another conclusion will be that there is a tension in Rawls’s conception of the plurality of public reason that is not easy to solve with the resources that he himself offers. It is here that Laden is argued to be take up a strand of Rawls’s work that leads to a better view of this problem of legitimization in a diverse citizenry.
The fourth chapter will detail Laden’s conception of deliberative democracy and show how its conception of public reason includes very different grounds.
The fifth chapter will focus on the relation between the two views. It is ulti-mately focused around this comparison. It tries to connect Laden’s theory with the challenge that Rawls and Mills set and at the same time fills the lacuna that Laden leaves when he writes that his work is deeply influenced by Rawls’ fun-damental ideas without specifying what the relation of his work to that of Rawls is.21
1.1. Differences
My thesis is that the notion of difference that Laden operates with is more in-clusive than Rawls’s. Rawls’s political liberalism and justice-as-fairness relegates a lot of questions concerning inequalities and differences to non-ideal theory. The first two chapters try to map the structure of Rawls’s approach to difference by focusing on the concepts of the overlapping consensus and public reason. In the conception of these especially the notions of legitimacy and the political concep-tion are important. In the subsequent chapters a comparison with the work of Laden will show that the conception of reason and reasoning lies at the core of this question of what can be admitted as reasons.
Many of the notions that Rawls introduces and uses are important and ground-breaking, the systematic exposition that Rawls gives of them does not help us to get clear about how to get to a well-ordered society. Still worse, in some cases the effect is downright misguided. The first problem –Rawls sug-gests– might be solved by some supplementing non-ideal theory22. Problems of the second kind, however, would get to the depths of the organization of the system.
The notions of difference and power can be found at different levels in Rawls’s 20. Political Liberalism, p.214
21. Reasonably Radical, pp.16–17
work. From the systematic viewpoint, there are really only three differences bet-ween people; first, there is the necessary consequence of the free employment of reason. The fact of reasonable pluralism is at the core of Rawls’s political turn. It is a consequence of the free employment of reason under liberal democratic in-stitutions, and can be explained by the burdens of judgment. The second results from the requirements of economic efficiency. The third kind are the differences in the conception of the good.
The socio-economic differences required for economic efficiency are structu-ral. These differences are conceptualized as a necessary condition for an eco-nomically rational and successful society. The treatment of this kind difference is one of the main goals of A Theory of Justice, but the theme reverberates in
Political Liberalism: “In justice as fairness this [construing the social contract in a
special way so that individual contribution has no place] is done by constructing the notion of the original position." The idea is that this position "...must supply the missing elements in order that a rational agreement can be reached”23. It can be gleamed from the quote that the difference principle arbitrates between the idea that individual contribution to society is moral–politically irrelevant, and the idea that socio–economic distinctions are unavoidable and even necessary.
The argument is that justice-as-fairness with the difference principle is the best way to deal with the triad of basic rights, economic efficiency, and distri-buting the means to pursue the good life. The differences in the conception of the good are abstracted away by the conception of the index of primary goods conceived as all-purpose means that can be used to pursue these various concep-tions of the good. The treatment of any other kind of difference is relegated to non-ideal theory, by which Rawls states that these differences would not exist in an ideal well-ordered society. In the original position the differences in the ideas of the good that different people have are dealt with. In the defense of the over-lapping consensus, the differences in comprehensive doctrines are dealt with.
The differences (and disagreements) that obtain from the free use of reason could be classified as ‘politics of ideas’.24 It is not that liberal democratic theory has not been occupied with difference, it is rather the way in which they have been dealing with it that should be critically evaluated. Differences in compre-hensive doctrine are irresolvable differences intrinsic to practical reason. These are not conflicts in the sense of opposed interests which are actually the target of a conception of justice. But rather these are the kind of differences that pose a problem for legitimacy that need to be worked around. This already preempts much of the discussion in this thesis. The core contention between Rawls and Laden concerns divergence on what legitimacy requires.
The characteristic assumption in Rawls’s Political Liberalism is the fact of rea-sonable pluralism as mentioned above. This is mirrored in Laden’s theorizing by
23. Political Liberalism, pp. 276–277 24. Phillips, 1996; p.140
differences | 15 the fact of deep diversity of which he writes that it does not only include “diver-sity among comprehensive doctrines of the good, but diver“diver-sity of identity.”25 He notes that this does not mean that all aspects of one’s identity are important but that “they might be.”26
In the context of political theory dealing with multiculturalism, Laden makes the distinction between ‘political approaches’ –like those of Rawls and himself– and ‘theoretical approaches’.27 The difference lies in the question that are asked. The latter start from the perspective of political theory that is assumed to be nor-mative and then ask how this theory deals with (multicultural) differences. The former approach holds the criterion for justification to be “actual endorsement of actual people acting politically in actual societies”.28
Laden draws consequences from this distinction. The most important benefit of the political approach that Laden takes is that it can make sense of oppression and inequality. Laden argues that in ‘theoretical approaches’ such notions –e.g. with regard to gender and race– can only either be assimilated as merely another difference or it has to leave them out entirely. In other words, the notion of diffe-rence is not restricted to the realm of ideas. Second, it misrepresents the relation of the multitude of non-political identities that individuals have to their political identity. For Rawls the non-political identities of citizens are side-lined by noting that seen from systematic point of view they are voluntary even if socially it might be rather difficult to leave.
25. Reasonably Radical, p.9 26. Ibid.
27. Laden, 2007; pp.200–201 28. Laden, 2007; p.201
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Overlapping Consensus
The issue of what differences between individuals can be the grounds for poli-tical claims in Rawls should be assessed in his turn towards polipoli-tical liberalism. The reason for this is that in this part of his work, Rawls realized that there is a category of differences that cannot easily be navigated and turned into a consen-sus. The work done on this question is thus very relevant for the question of this thesis.A reading of Rawls relevant for the comparison with Laden’s account of libe-ralism will thus have to build from the concepts that are introduced when Rawls makes the turn towards political liberalism. This is the moment that a notion of political justification in which reasonableness and acceptability by others become the standards of justification. To get a good grip on how this works for Rawls the interpretation will take off from considering the notions of the overlapping consensus, and public reason. They stand for a conception of stability and a con-ception of political deliberation respectively. These concepts are at the core of the problem of political justification as Rawls understands it.
The argumentative importance of these concepts also resides in the mutation that the conceptions go through within the work of Rawls himself. The con-ception of stability and what citizens can come to agree on changed as Rawls developed political liberalism. The interpretation of this change and the resul-ting conception is an important part of the argument that Rawls’s conception of political justification is superseded by the conception that Laden puts forward. The fairness of justice-as-fairness is not relative to the ideas of the good of comprehensive doctrines, but better interpreted to mean fairness with respect to free and equal citizens as persons who have those conceptions. In other words, citizens always have rights and freedoms prior to their particular persuasion.
The idea of an overlapping consensus is for Rawls an idea of social unity.29 By specifying this idea and showing how it could come into being within the limits that political liberalism sets for itself, it is alleged that unity and thus stability are possible in a well-ordered society divided by the fact of reasonable pluralism. It is important that this is a modal constraint. Rawls hopes to convince the readers that an overlapping consensus is at least a conceptual possibility.
29. Political Liberalism, p.134
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Another interest in these concepts is the fact that –as relayed in the intro-duction– Laden thinks that his approach to political justification is similar to Rawls’s. The details of Rawls’s account are then important in order to assess this claim. The conceptions of both the overlapping consensus and of public reason – discussed in the next chapter– are constituent parts of the idea of public justifica-tion.30 Public justification describes the situation in which there is a public con-ception of political justice that all citizens agree to. This then serves as a “shared basis for citizens to justify to one another their political judgments”.31 Expanding on this idea, Rawls notes that complete consensus on all political issues cannot be expected, but he notes that the practical aim is to narrow disagreement on what he calls “constitutional essentials” elsewhere. The issues meant here are the specification of the rights that govern the political process, and the equal basic rights and liberties.32 The idea of public justification that Rawls works with does not have reference to all the comprehensive doctrines in the society, but rather has reference to political conceptions which are worked up from the fundamen-tal ideas implicit in the public political culture. The working out of these ideas into conceptions can take many different paths.
With regards to the conception of the overlapping consensus, the defense of Rawls against the argument made by Fabian Freyenhagen is important for the overall argument. It is the possibility of a regime based on agreement grounded in a notion of reasonableness that Freyenhagen tries to undermines. He argues against the idea that there could be any mode of legitimation that transcends one based on fear and power. For Freyenhagen there is no good argument in Rawls that allows for stability for the right reasons to obtain, which by extension means that the criterion of reasonableness is undermined as a possible regulating con-ception for political justification.
It is not the sort of stability that needs defending. Gerald Gaus’s reading of Rawls argues that Rawls’s priorities shifted throughout his work in several ways that go beyond the obvious shift to political liberalism. He argues that the later Rawls dilutes the kind of consensus required to achieve an overlapping consensus. The mode of political justification based on the principle of liberal legitimacy, however, is important for both Rawls and Laden. By glossing Freyenhagen’s argument, it will be shown that the basic tenability of the mode of the reasonable is not to be tossed out on the basis of his argument.
It is the concept of reasonableness that provides a way into the core of the change that Rawls makes toward Political Liberalism. Rawls characterizes reaso-nableness by two aspects. The first aspect is the readiness of persons to propose and accept principles and standards as fair terms of cooperation and to follow
30. Rawls, J. (2001). Justice as Fairness: A Restatement. E. Kelly (Ed.). Cambridge, MA: Belknap Press of Harvard University Press. See p.26
31. Justice as Fairness, p.27
32. Justice as Fairness, p.28. Note how this list is much shorter than what Rawls thinks the simila-rities are between liberal political conceptions. See Freeman, 2004; p.2033
the political necessity of the overlapping consensus | 19 these principles given that others do so too. The second aspect is the willingness to recognize the burdens of judgment and the consequences of that.33 Reasona-bleness is the overarching criterion that structures political liberalism both in Rawls’s and in Laden’s versions of it.
2.1. The Political Necessity of the Overlapping
Consensus
This section will set out the structure of the conception of stability that Rawls has. With the move to political liberalism, several structural features of justice-as-fairness had to change as a political conception could not depend on comprehensive idea(l)s anymore. Most importantly, the assessment of stability had to change. The change was mandated by the relinquishing of what Rawls cal-led the full theory of the good –defined in A Theory of Justice– to determine the notion of stability. This theory of the good was in part characterized by several comprehensive notions –such as the perfectionist Aristotelian principle– that are not feasible under conditions of reasonable pluralism.34 The changes are oriented around acceptance of the burdens of judgment.
The starting point of Rawls’s argument is that the enduring disagreement is the consequence of the free use of reason.35 This fact makes political justification important and gives rise to the question of Political Liberalism, but the fact also stands in need of explanation.36 The proposal of the fact of reasonable pluralism is a strong claim about the nature of reason. Rawls offers us the burdens of judg-ment as an explanation why it is fully rational to suppose enduring disagreejudg-ment between fully rational individuals in the practical domain.
The consequence of the burdens of judgment is that the concept of truth does not play a role in political justification. Rawls considers truth a concept that is inextricably bound up with the standards of judgment that a comprehensive doctrine lays down. The fact of reasonable pluralism is a complication of the job that the normative theorists sets for himself. A consequence of seeing the reasonable as the necessary condition for political legitimacy and legitimation is the correlative idea that the “continued shared understanding on one
compre-33. For both aspects see Political Liberalism, p.48–49. Especially p.48n1
34. For short summary of the thin theory of the good, see Gaus, 2013; pp.239–240. Also see A Theory of Justice, Chapter VII. The Aristotelian Principle is necessary as a motivational principle to be able to specify what sort of ends will be included in the rational life–plans of citizens. Cf. A Theory of Justice, p.424
35. Of which we have concrete experience in the form of the liberal institutions in recent modern history.
36. “[h]ow is it possible for there to exist over time a just and stable society of free and equal ci-tizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?”. Political Liberalism, p.4
hensive religious, philosophical, or moral doctrine can be maintained only by the oppressive use of state power”.37 Dreben has observed that this is a claim that “...should shock anybody who is a well brought–up philosopher” as it is a strong opposition to the traditional concept of reason.38
The burdens of judgment make the issue of stability so central for Rawls. The notion of instability is not defined as a deviance (e.g. irrationality), but he consi-ders the problem internal to reason through the burdens of judgment. The argu-ment that Rawls employs for justice-as-fairness has always been twofold. Estlund states that the question of the overlapping consensus is “...always only whether a conception of justice would be acceptable to the reasonable comprehensive views that would be likely to arise in a society governed by it”.39 The quote shows the two parts of the question of stability. Both whether the political conception could be accepted by all citizens with a reasonable comprehensive doctrine, and whether they society that is governed by this political conception would sustain the ideas and attitudes that are the necessary conditions for this conception.
The two-part argument for stability constitute a procedure that is self-reflexive. The first step is the construction of a political conception drawn from several fundamental ideas and a constructivist method and it is worked out whether this conception can trump other alternative conceptions upon evaluation by representatives of citizens in some ideal situation. The important self–reflection concerning stability is to establish whether the expected outcomes of operating with a conception are compatible with the necessary conditions of the conception itself. In other words, whether the conception is convergent. This can only work if the criteria by which the conception is evaluated are sufficiently independent from the definition of the conception itself. A second notion of stability can be found in the idea that it is still necessary to investigate whether there are enough reasons to establish the possibility of acceptance of the conception by citizens.
In a first sense stability is located in the second stage of the working out of the conception of justice-as-fairness. In this stage the parties ask whether “people growing up under just institutions (as the political conception defines them) acquire a normally sufficient sense of justice so that they generally comply with those institutions”.40
The second step of stability involves asking the question whether the politi-cal conception can be the focus of an overlapping consensus. In other words, whether the political values can come to outweigh the non-political values in normal circumstances. Rawls’s general argument on this topic is that the politi-cal values are “very great values”, that “govern the basic framework of social life
37. Political Liberalism, p.37. Also used in Dreben, 2003; p.318. 38. Dreben, 2003, p.317
39. Estlund, 1996; p.76. Also Political Liberalism, p.15 40. Political Liberalism, p.141
the political necessity of the overlapping consensus | 21 –the very groundwork of our existence– and specify the fundamental terms of political and social cooperation” and thus will in normal cases have priority over comprehensive values.41
The argument for the possibility of the overlapping consensus resolves the ob-jection that an overlapping consensus is utopian.42 In replying to this objection, Rawls argues that the effective regulation of the basic political institutions by the liberal principles of justice achieves the following conditions for a stable con-sensus. These are grounds for allegiance to the liberal principles that are distinct from long-term self- or group-interest, or custom and traditional attitudes and hence make it possible to move beyond a modus videndi. An important aspect is that “...liberal principles meet the urgent political requirement to fix, once and for all, the content of certain political basic rights and liberties, and to assign them special priority”.43 This establishes the rules of political contest, and takes certain divisive issues off the agenda and “beyond the calculus of social inte-rest”.44 These basic rights and liberties are fixed in a constitution.
Thereby, the liberal principles of justice have a certain simplicity in applica-tion. They solely refer to “institutional facts about political procedures and their basic rights and liberties, and to the availability of opportunities and all-purpose means”.45 This means that their application can be guided by the usual guide-lines of public inquiry and rules for assessing evidence. This is also what sets the application of the liberal principles of justice apart from utilitarian principles for which difficult calculation are necessary for proper application. Principles that are speculative in nature and unclear in application are not able to foster mutual trust between citizens required for sustained allegiance to these principles.
The third requirement for stability is dependent upon the former two require-ments working well over time so as to foster “cooperative virtues of political life”, which are reasonableness, sense of justice and a spirit of compromise.46 Rawls says the explanation for this is the application of the moral psychology that is ba-sed on the idea that citizens have two moral powers. The sense of justice is that is operative in the situation above. This sense of justice is supposed to be reinforced by enduring stability and mutual recognition thereof.
An agreement on a political conception of justice, however, is “to no effect without a companion agreement on the guidelines of public inquiry and rules for assessing evidence.”47 For the increased likelihood of any consensus and a deepening of it, the citizens must not only agree on the principles of justice, but
41. Political Liberalism, p.139
42. And hence that a modus vivendi is the best kind of consensus that can be reached. 43. Political Liberalism, p.161
44. Ibid.
45. Political Liberalism, p.162 46. Political Liberalism, p.163 47. Political Liberalism, p.139
also on the “general beliefs in light of which” these principles can be accepted.48 These beliefs include ideas about human nature, how political and social institu-tions work, and the results of science that are not too controversial. It is exactly these beliefs that Rawls hopes can be supported by “publicly shared methods of inquiry and forms of reasoning”.49 This is part of public reason and will be treated more extensively in the next chapter.
The overlapping consensus is one of reasonable comprehensive doctrines. The condition for an overlapping consensus is thus that there is some plausibility to the claim that comprehensive doctrines can be reasonable. Rawls argues that the history of religion and philosophy shows that there are many examples of comprehensive doctrines being reasonable.50 These doctrines show their more comprehensive and systematic account of values is congruent or at least not in conflict with the values appropriate for the political domain. Combined with the idea of toleration this is condensed into the burdens of judgment as the source of the possibility of enduring reasonable disagreement.
Given the backdrop outlined in this section Rawls assumes “this consensus [the overlapping consensus] to consist of reasonable doctrines likely to persist and gain adherent over time within a just basic structure (as the political concep-tion defines it)”.51 The important idea beyond the possibility of the overlapping consensus is the idea that there can be a political conception that citizens can agree upon but the reasons for which they ultimately hold it differ according to the comprehensive doctrines they adhere to.
Stability is a general notion. In the specific case of justice-as-fairness the content of the consensus is defined in the first stage of setting up this political conception. This first stage –the original position– is itself dependent upon the fundamental ideas that Rawls finds in the tradition of liberal constitutio-nal democracies. The content is not “political in the wrong way”, as the veil of ignorance blocks any party from comprehensive value commitments.52 Beyond this Rawls is looking for the nature of the forces that bring about the consensus; not just any would do. It will be a moral consensus after all; “[t]hat an overlap-ping consensus is quite different from a modus vivendi is clear from our model case. In that example note two aspects: first, the object of consensus, the political conception of justice, is itself a moral conception. And second, it is affirmed on moral grounds, that is, it includes conceptions of society and of citizens as persons, as well as principles of justice, and an account of the political virtues
48. Political Liberalism, p.66
49. Political Liberalism, p.67. The section (II:4.1) where these quotes come from deal with the three levels of publicity. The availability of the ideas grounding the principles through public reaso-ning is the second level. At the third level the full justification of the public conception of justice is available publicly. Rawls assumes that in a well-ordered society, this full justification is available.
50. See e.g. Justice as Fairness, p.190 51. Political Liberalism, p.141 52. Political Liberalism, p.142
the formation of an overlapping consensus | 23 through which those principles are embodied in human character and expressed in public life”.53
The two senses of stability answer different questions. The first answers the question of logical possibility; does the theory agree with itself, does a just society as conceived according to its terms constitute the kind of persons that it itself requires. The second sense answer the question of possibility in a different sense. This the defense of rational hope with respect to the feasibility of political liberalism.
2.2. The Formation of an Overlapping Consensus
In defense of the possibility of an overlapping consensus, Rawls has to deliver a more detailed view as to how it could come about. It is important to note here that the consensus that is aimed at goes beyond the agreement on a constitution towards a consensus on a political conception. The rights and liberties that are specified in the constitution stand in need of a coherent interpretation. The idea of the possibility of the overlapping consensus is to defend the possibility that there is a political conception that “provides a publicly recognized point of view from which all citizens can examine before one another whether their political and social institutions are just”.54 Justice as fairness is merely one of these concep-tions.
It is important for discussions that will come later to stress here that Rawls fundamental engagement with public deliberation and the public role of political conceptions shows through the two occasions that stimulate the development of such political conceptions. First, there are public pressures of convincing others that do not share one’s comprehensive doctrine.55 Second, there are public pres-sures of renewed challenges to an established constitution which provides the impetus to develop a deeper or better grounded political conception beyond the political principles.56
53. Political Liberalism, p.142 54. Political Liberalism, p.9
55. This is the force that pushes to include the whole basic structure as a subject into the political conception. See Political Liberalism, p.167. It is at play in deepening the consensus, as it involves formulating reasons that do not exclusively derive from one’s comprehensive doctrine. Such reasons are not convincing to others. See Political Liberalism, pp.165–166
56. Political Liberalism, pp.165–166. New challenges to an established constitution will even-tually arise and a constitutional consensus does not provide the conceptual resources to be able to deal with such issues. Hence there is a cause for debate that will spark the development of political conceptions. In any constitutional system with judicial review, there is a need for an interpretative framework so as to decide what it is that the constitution means, so as to be able to decide important cases.
This shows Rawls’s basic adherence to the idea of constitutional democracy. This frames the idea of a political conception as an interpretative framework of the constitution, that can be employed when new cases arise. It perhaps does not convince in a situation where there is no constitutional court or the possibility by judges to test laws against the constitution. The Dutch constitution explicitly
Rawls wants to make sure that readers do not mistake the meaning of stability for the overlapping consensus with “the stability of a modus vivendi, or the stabi-lity of a balance of political forces”.57 This section will show how the critique that Freyenhagen aims at the formation of the overlapping consensus misses some important aspects of Rawls’s ideas.
After considering various reasons that Rawls puts forward as being forces towards consensus Freyenhagen’s verdict is that those do not work, and hence that the emergence of the overlapping consensus can only be a matter of “lucky coincidence”.58 The conclusion is that political liberalism is not different from the liberalism of fear.The argument that Freyenhagen employs to justify a liberal democratic society is based on the avoidance of the “universally accepted evils of coercion, pain, oppression, torture, humiliation, and premature death” combined with the historical evidence that such a society has proven best to do that.59 He claims that the notion of stability based on these avoidance of these evils does not have to be fully moral. Here ‘not moral’ holds for both citizens as well as the theorist who does not have to argue for the possibility of the stability in moral terms as prudential reasons are available.60
Freyenhagen argues that Rawls defines the term moral as “based on values and principle”.61 This is the notion that he builds his argument with. However, in the conclusion the problem with Rawls’s account of stability turns out to be that it cannot come about without luck and coincidence and this is implied to be damning. Freyenhagen’s argument seem to proceed by arguing against the notion of ‘stability for the right reasons’ as a fully moral consensus. However, the libe-ralism of fear –introduced in the last section– might also develop into a moral consensus, so Freyenhagen cannot be arguing against such a notion of consensus without being inconsistent. Then the argument must be that the certainty of it coming about cannot be ascertained with a ‘fully moral’ justification or account by Rawls himself. That is a very different problem than the idea of a fully moral consensus being plausible.
The notion of ideal that Rawls –in Dreben’s interpretation– works with is excludes the possibility of judicial review in article 120. The idea is that law made by the parliament is inviolable and the interpretation of the constitution is exclusively their prerogative.
57. Justice as Fairness, p.89n10
58. Quote on Freyenhagen, 2011; p.333. The five reasons that Freyenhagen interprets Rawls to have for the priority of political values over comprehensive values are: (1) they are very great values, (2) many traditional comprehensive doctrines are seen as reasonable, (3) conflicts between values are reduced due to philosophical agnosticism of political liberalism, (4) citizens value the legitimacy of democratic decision–making, and (5) citizens have incomplete and loose conceptions of the good. Freyenhagen, 2011; p.328–329
59. Freyenhagen, 2011; p.336
60. If these terms are in fact not moral, the meaning of them will still differ across various interr-pretations. So what it is that people are avoiding in this view is not immediately clear or at least needs more development.
the formation of an overlapping consensus | 25 pragmatic. It is an account of an ideal that starts in mediis rebus.62 Ideal, then, does not refer to all logically possible ideas, but rather to ideas that are longstan-ding part of our tradition and more importantly the ideas that are embodied in our political practices at this very moment. It is important here to see that Rawls uses two notions of historical progress. First, at the start of the argument there is public political tradition that is claimed to contain the fundamental ideas that he builds from. Second, there is an idea of progression towards the overlapping consensus, that over time citizens will develop their doctrines and ideas to what would constitute a fully moral justification. This is the process that the reason-able psychology is involved in.63
It is here that the structure of Freyenhagen’s argument is problematic. As men-tioned before, he argues that Rawls must be able to give a fully moral justification for the overlapping consensus. This is a mistaken idea. The first counterargument is that Rawls in both Political Liberalism and Justice as Fairness includes the second notion of historical progress. This is a first indication that he does not assume to be able to give a fully moral justification for the overlapping consen-sus. This is aided by Rawls stating that “an overlapping consensus is not a happy coincidence, even if aided as it no doubt must be, by great historical fortune.”64 Rawls admits here that coincidence must play a role, even though the account that he has given should also have made clear why the overlapping consensus is not a happy coincidence but the possible result of work done within the public political culture.
The second counterargument is that Rawls –as interpreted by Laden– does not engage in a philosophical approach to political philosophy.65 The goal is not to give full philosophical justifications. In fact, if justification in political philosophy is itself political, then the “instant destruction of human life by an as-teroid impact” would invalidate Rawls’s theory in the sense that there is no more politics to be had. This distinction will be dealt with in more detail later.
Rawls approach to the overlapping consensus is from the idea that the a political conception is not general nor comprehensive. Now Freyenhagen argues that some of the mechanisms that should generate the overlapping consensus are in fact comprehensive or an affront to comprehensive doctrines. That might well be the case, but Rawls approach here is pragmatic and perhaps not comple-tely convincing and not engaging with giving a fully moral account of how the overlapping consensus can come about. Rawls concludes that “[t]he [political] conception’s limited scope together with the looseness of our comprehensive
62. Dreben, 2003; p.330
63. It is important to note that this is in part facilitated by the interactions, or the knowledge that one has about other citizens their allegiance to the principles. The publicity that lies at the bottom of this seems epistemic. After which, through the moral psychology, this is transformed into trust and acceptance of the principles themselves as a good. See Justice as Fairness, p.197
64. Justice as Fairness, p.198
65. Also see Dreben who writes that Rawls thinks that doing political philosophy means, “… to work out from easily agreed upon concepts to particular detailed conceptions.” Dreben, 2003; p.330
doctrines allows for leeway for it to gain initial allegiance to itself and thereby to shape those doctrines accordingly as conflicts arise, a process that will take place gradually over generations (assuming a reasonable moral psychology).”66 This idea clearly banks on the practical adjustments that comprehensive doctrines make not only on theoretical argument for the possibility.
Freyenhagen forgoes the second part of the notion of stability that Rawls introduces. This is the idea that a well-ordered society would generate its own support. Freyenhagen could imply that if such a society could not come about in the first place based on moral reasons –ie. according to the argument he has been making Rawls’s attempt fails– then this positive feedback loop is also disproven.
Now the argument Freyenhagen makes is that there is no stronger notion of stability available for Rawls then the one that is exhibited by ‘liberalism of fear’ and hence that with regards to this criterion the two views are indistinguisha-ble. The strength of the account of stability that Freyenhagen is looking for –he concludes correctly– cannot be given. He writes that it ought to be “rational to expect political values to be given priority” above non-political values”.67 Thus Freyenhagen’s conclusion is that justification in political philosophy can only be either a comprehensive account or a recourse to prudential considerations –which could guarantee the rationality of stability–. That conclusion is under-mined both by the fact that that is not the kind of stability Rawls is looking for, as well as by the interpretation of the approach that Rawls has to the question by Laden.
2.3. The Unity of an Overlapping Consensus
Already in Political Liberalism Rawls states that it might be “more realistic and more likely” that the focus of the overlapping consensus is not one specific political conception of justice.68 It is rather that case that this focus will consist in a “class of liberal conceptions that very within a certain more or less narrow range”.69 This section will lay bare an internal dynamic in Rawls that paves the way for Laden’s focus on legitimacy in the form of theorizing the conditions of reasonable political deliberation.
If Rawls says that the overlapping consensus is the ‘appropriate conception of unity’ in a society characterized by reasonable pluralism, then in Political
Liberalism the meaning of that unity has is expressed by the establishment of the
possibility of a political conception being embedded into all reasonable com-prehensive doctrines. Later he starts to maintain that the burdens of judgment
66. Justice as Fairness, p. 198 67. Freyenhagen, 2011; p.333 68. Political Liberalism, p.164 69. Political Liberalism, p.164
the unity of an overlapping consensus | 27 concern the political conception itself, with the consequence that the focus of the overlapping consensus fractures. Rawls still holds on to the idea of the overlap-ping consensus as the right notion of stability.70
As mentioned above Freyenhagen disputes the tenability of the overlapping consensus. The two parts of his critique might in fact both be correct and yet the possibility of public reason retained. The reasons that Rawls proposes in defense of the possibility of the overlapping consensus might be insufficient. The alternative conception of politics might additionally a better description of what politics actually is. However, that does not touch upon the connection of the two parts of the argument nor on the distinction between political liberalism and justice-as-fairness. It is precisely here that Freyenhagen seems to miss the most interesting and most important ideas that run through Rawls’s work.
Gaus provides a reading of Rawls argument that focuses on these ideas. Gaus’s reconstruction of the turn to political liberalism and its later changes focuses on the liberal principle of legitimacy. The way in which this defuses Freyenha-gen’s critique is by shifting the focus of Rawls away from the consensus towards legitimacy. Gaus agrees with Dreben that the focus on the principle of legitimacy is the “distinctive feature of political liberalism”.71 Dreben argues that the new introduction of the second print of Political Liberalism in 1996 gives reason to reread the nature of the project that Rawls is engaged in.72 The idea they share is that Rawls realizes that the idea of the burdens of judgment and reasonable pluralism affects the idea of an overlapping consensus on a specific political conception.
In the case that the burdens of judgment are also applied to the overlapping consensus there seems to be no unity that can be said to obtain. Either it is the case that the political conceptions that can be divided by the burdens of judg-ments –and still be basically reasonable– all belong to what Rawls calls ‘liberal political conceptions’ that establishes the unity. Or it is the case that all the liberal conceptions can endorse what Freeman calls “a legitimate constitution” which establishes unity.73 When Rawls talks about social unity, he proposes the over-lapping consensus as an alternative to a modus vivendi.74 He considers this the inferior alternative that would not be able to deliver consistent enduring stability for a society characterized by the fact of reasonable pluralism. In this use what is referred to is the kind of unity that would obtain in an ideal society. But with the admission of the plurality of public reason, this kind of unity cannot anymore be
70. In “Reply to Habermas”, p.146, Rawls states that the overlapping consensus is the “...most reasonable basis of social unity available to us as citizens of a modern democratic society”. Rawls, J. (1995). Reply to Habermas. The Journal of Philosophy, Vol.92 (3); pp.132–180
71. Gaus, 2013; p.247
72. Dreben, 2003. Gaus accepts this point, but goes on to also locate these ideas already in the 1993 edition.
73. See Freeman, 2004; p.2048. I distinguish this from the former option due to the fact that it is one more step removed.
supposed even for a well-ordered society.
The earlier edition of Political Liberalism contained a definition of the over-lapping consensus that suggested that one political conception was shared. The later change of emphasis can be read through the different formulation of the principle of liberal legitimacy that Gaus traces. Before Rawls wrote that justifi-cation was limited to what “citizens could be expected to endorse”.75 This is now revised to state that “our exercise of political power is proper only when we sin-cerely believe that the reason we offer for our political action may reasonably be accepted by other citizens as a justification of those actions”.76 The change resides in the rejection of the hypothetical. This hypothetical “could” makes it possible to argue from a conception of the citizen that then ought to accept some reasonable political conception. There is no actual other addressed in that case. The new for-mulation more clearly refers to actual others and the relation to them by means of the words “sincerely believe”.
The first conception of the principle of legitimacy led to what Gaus calls a ‘shallow political liberalism’. The characteristic that is important for the current comparison is that this reading of Political Liberalism understand stability –in the form of the occurring of an overlapping consensus– as being dependent upon a judgment that on a “population–level” it can be achieved. This means that suffi-cient reasonable citizens are able to (and will) adhere to the political conception; a judgment of statistics so to say. The new statement of the principle with the concomitant determination of the various meanings of justification in “Reply to Habermas”, make that justification is now owed to every citizen individually according to Gaus.
It is clear that there is a conventional tendency to interpret Rawls in the way that Gaus calls ‘shallow political liberalism’. It can be seen for example in Krasnoff’s defense of Rawls against misunderstandings by Habermas: “By allo-wing the reasonable to stand as the sole criterion for political justification, we are able to leave all comprehensive doctrines to the side. We do not have to deter-mine whether our political claims are justified to each person, given the details of her comprehensive doctrine. Rather, we take the fact that our political claims are in principle available to any person to count as our standard of our political justification.”77
Arguably the reference to universally accepted evils is also a public justifica-tion by the fact that the grounds of deliberajustifica-tion are shared by everyone. Hence public debate can be held in terms of the conceptions of what these evils mean. However, these grounds seem to be no less moral and moreover expresses a regressive notion of legitimacy that has civil unrest as a necessary complement
75. Political Liberalism, p.137 76. Rawls, 1996; p.xliv 77. Krasnoff, 1998; p.282
the unity of an overlapping consensus | 29 idea.78 The starting point of cooperation is different and there is no expression of the social nature of citizenship and of reasoning.
The question of the diversity of political doctrines is approached from theore-tically the opposite side as the argument for the constitution of the overlapping consensus. The latter is approached from the theoretical side of the original position and political constructivism. The diversity of political doctrines is approached from the side of legitimization and public reason. Rawls states that “[a]ccepting the idea of public reason and its principle of legitimacy emphatically does not mean, then, accepting a particular liberal conception of justice down to the last details”.79 And he goes on to note that what the different liberal political conceptions disagree about is “which principles are the most reasonable basis of public justification”.80
Gaus argues that this change of emphasis means that Rawls’s conception of the overlapping consensus changes. The consequence is that “the principle of liberal legitimacy takes center stage”.81 Furthermore, political action can only be justified with reference to “reasonable weightings of the political set [of values]”.82 This is a highly demanding conception of legitimacy, that additionally includes a significant amount of uncertainty in the justification of any particular political conception. This is what Gaus calls the ‘deep problem’ that Rawls tried to show us, for which different kinds of political theorizing are to be developed.83
Three comments should solidify the inevitability of the plurality of public reason. First, the fact that Rawls holds justice-as-fairness to be the most reaso-nable political conception does not mean that it is the only one within the limits of the reasonable. Second, the idea that the various liberal political conceptions share structural features to a large extent makes the differences between them non–essential.84Third, one of inherent features of the idea of the reasonable is that it is sufficient recognition for the free and equal status of citizens and their comprehensive doctrines. Within the limits of the reasonable liberal political conceptions no–one is cheated out of any condition that Rawls puts on reaso-nable justification. In other words, the conflict that obtains is manageable since it does not concern the notion of legitimacy and can be had on the basis of public reasons.
The importance of the conception of legitimacy is also argued for by Estlund. In an argument defending Rawls’s continuing focus on egalitarianism, Estlund argues that what makes the different political conceptions all liberal is that they agree on the conception of legitimacy. He reads the formal and basic rights of the
78. Freyenhagen, 2011; p.336 79. Political Liberalism, p.226 80. Ibid. 81. Gaus, 2013; p.248 82. Ibid. 83. Gaus, 2013; p.249
first principle of justice as both a condition of justice and a condition of legiti-macy. That they are conditions for legitimacy is what differentiates the first prin-ciple from the difference prinprin-ciple.85 It is not a condition for legitimacy, because a regime is not as unreasonable when it rejects the difference principle as when it rejects the basic liberties.
Rawls himself notes that the issues that are dealt with in the difference prin-ciple have to be part of any conception of public reason. In Estlund’s recon-struction, the criterion of reasonableness is already one that centers around the possibility of rejection. Even though people might not agree on the difference principle as being the most reasonable or the only principle of distribution, den-ying reasonableness to the difference principle, or other reasonable principles of distribution, is a mistake according to Estlund.
In bringing out these tensions in Rawls’s work, it will be easier to see what is the thread that Laden picks up on. The deadlock is that the individual inter-pretation of justification makes coming to an overlapping consensus on the theoretical level impossible. Hence the interpretation of the process of political justification and the meaning of the liberal principle of legitimacy is what will be developed further in the next chapter, after which chapter four will introdu-ce Laden’s theory of reasonable political deliberation. The model of the liberal state that Freyenhagen delivers to us –a liberalism of fear– complies in some sense with this idea.86 There is no one doctrine that has complete authority (even though all claim it). The key issue is, however, that Freyenhagen –through his focus on the notion of stability– misses some of the most important insights that Rawls has about justification.
85. Estlund, 1996; p.73 86. Freyenhagen, 2011; p.336
| 31
Public Reason
This chapter deals with Rawls’s conception of public reason. This is a central notion for Rawls’s project in Political Liberalism, as it outlines what political deliberation would be bound to in a well-ordered society. In the turn to Political
Liberalism the basis for justification cannot be comprehensive reasons any longer,
so Rawls has to outline a set of reasons that can be used in political deliberation. With an eye to the question how differences between citizens can play a role in public deliberation, it is important to understand how this set is specified in Rawls.
The first two sections of the chapter set out Rawls’s conception of public reason. The relations between the concepts of public reason, legitimacy, and political conception will be explicated and special attention will be paid to the distinction between the concept and conception of public reason. It will be shown that public reason and the liberal principle of legitimacy stand apart from justice-as-fairness. The trajectory of the conception of public reason through Rawls’s work will also be set out.
The second part of the chapter deals with the reverberations of Gaus’s ‘deep political liberalism’. The argument for which was introduced in the last chapter. The consequences of the shift of focus to legitimacy combined with the plura-lity the overlapping consensus –as a ‘more realistic’ through being conceived as a consensus on a family of liberal political conceptions– on the meaning and importance of public reason will be developed.
3.1. The Contours of Public Reason
The general contours of public reason are can be traced to the need for intro-ducing it in response to the extensive revisions that are mandated by the problem of stability. Public reason is the description of a process in a well-ordered society which is the means by which the members of this society justify it and its politi-cal use of force. The concerns of reasonable faith in stability and unity have been treated under the conception of the overlapping consensus. The concern that underlies the conception of public reason is that of legitimacy, and its meaning
3
and organization. Public reason seems to be a development of the determination of the relation that citizens stand in with each other and the officials of the state.
Rawls introduces the idea of public reason by saying that any society needs a way to formulate its plans, puts its ends in an order of priority and makes its decisions accordingly. He calls this a society’s reason by which citizens justify the society and its political use of force.87 This reason is not necessarily public and can take many forms. However, “[p]ublic reason is characteristic of a democratic people”.88 The important democratic aspect here is that the essentially coercive power of the state is presided over by the citizens collectively. Rawls’s conception of public reason is then a particular determination of a necessary aspect of any political society. It is an institution of any well-ordered society.
Rawls formulates the use of public reason in many different ways.89 The suc-cinct formulation that Rawls gives of public reason in his conception is the fol-lowing. In a constitutional democracy “public reason is the reason by which free and equal citizens who, as a collective body, exercise final political and coercive power over one another in enacting laws and in amending their constitution”.90 However, the intended set of people using –that is being restricted by it– public reason consists mostly of public officials in various roles. Rawls calls it “…the reason of legislators, executives (presidents, for example), and judges (especially those of the supreme court, if there is one)”.91 He does add that it is the duty of citi-zens to make sure that these people do in fact use public reason.
Rawls limits the scope of the objects the restrictions of public reason ought to apply to. Rawls restricts the scope of public reason to constitutional essentials and matters of basic justice. The constitutional essentials are defined in two parts as (i) principles and processes of political autonomy, and (ii) equal basic rights and liberties of citizenship. Given the premium that Rawls has placed on stability and the need of agreement for any sort stability, the restriction follows from the idea that issues are easiest to agree on.
Freeman traces a shift in the role and meaning of public reason throughout the work of Rawls.92 He notes that in A Theory of Justice the argument for the congruence of the right and the good provided reasons for interpreting and ma-king laws.93 But Rawls came to see the reasons associated with this argument as comprehensive and thus ineligible as a basis for such public justification. It is the political conception that is the focus of the overlapping consensus that ultimately gives content to public reason. In earlier work, Rawls argues that public reason is
87. Political Liberalism, pp.212–123
88. Political Liberalism, p.213n8. My emphasis. 89. Cf. Freeman, 2004; pp.2021–2022 90. Political Liberalism, p.214 91. „Reply to Habermas“, p.140n15 92. Freeman, 2004
93. I.e. reasons from moral autonomy, self–realization of moral and rational capacities, and related Kantian ideas could serve as such reasons. Cf. Freeman, 2004; p.2024.
