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THE PURE THEORY OF PUBLIC JUSTIFICATION

Published online by Cambridge University Press:  29 April 2016

Steven Wall
Steven Wall*
Affiliation:
Philosophy, University of Arizona
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Abstract:

The ideal of public justification holds, at a minimum, that the most fundamental political and legal institutions of a society must be publicly justified to each of its members. This essay proposes and defends a new account of this ideal. The account defended construes public justification as an ideal of rational justification, one that is grounded in the moral requirement to respect the rational agency of persons. The essay distinguishes two kinds of justifying reasons that bear on politics and shows how they inform the ideal of public justification. It also decouples public justification from contractualist political morality. The result is a novel account of public justification that departs markedly from how the ideal is commonly characterized, but shows how it retains its distinctiveness as an ideal of politics.

Type
Research Article
Information
Social Philosophy and Policy , Volume 32 , Issue 2 , Spring 2016 , pp. 204 - 226
Copyright
Copyright © Social Philosophy and Policy Foundation 2016 

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References

1 Jeremy Waldron, “Theoretical Foundations of Liberalism,” in his Liberal Rights (Cambridge: Cambridge University Press, 1993), 61.

2 Several accounts of public justification have been proposed in recent years. The two most influential are John Rawls, Political Liberalism (New York: Columbia University Press, 1996) and Gerald Gaus, Justificatory Liberalism (Oxford: Oxford University Press, 1996) and The Order of Public Reason (Cambridge: Cambridge University Press, 2011). For a general survey of public justification views, see Fred D’Agostino, Free Public Reason (New York: Oxford University Press, 1996). I do not discuss these rival accounts in detail here. My primary task is constructive, not critical.

3 This is not to deny that these practical considerations can have moral significance. I return to them at the conclusion of this paper.

4 Accounts of public justification differ on the scope of the ideal. Does it apply only to the fundamental political and legal institutions of a society, or does it apply to all political institutions and laws, for example? I wish to avoid this issue. Hence, I deliberately use the ambiguous term “political arrangements” to refer to the objects of public justification.

5 Steven Wall, “Is Public Justification Self–Defeating?” American Philosophical Quarterly 39, no. 4 (2002): 385–94.

6 Rawls, Political Liberalism, 12.

7 This point has been effectively pressed by contemporary political voluntarists. See John Simmons, A., “Justification and Legitimacy,” Ethics 109, no. 4 (1999): 739–71.CrossRefGoogle Scholar

8 In this example, assume that the government knows that its subjects cannot figure out on their own what reasons justify the curfew.

9 Moral contractualists may deny that there could be valid moral reasons that are not also acceptable reasons. The account of public justification that I am advancing, however, is not derived from contractualist premises.

10 Two strategies of public justification are commonly distinguished. Governments may seek to justify their actions by invoking moral considerations that all of their subjects are in a position to appreciate, or they may seek to justify their actions by offering different acceptable moral considerations to different subjects. The first strategy aims at a “common standpoint” justification, whereas the second aims at a “convergent” justification. See Nagel, Thomas, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 16, no. 3 (1987): 215–40.Google Scholar

11 Rawls, John, “Justice as Fairness: Political Not Metaphysical,” Philosophy and Public Affairs 14, no. 3 (1985): 223–51, at 229.Google Scholar

12 So described, Type (1) and Type (2) reasons are conclusive reasons (i.e., undefeated and not undermined by other considerations). But often I will use these terms to refer to considerations that contribute potentially to a conclusive reason. Context will determine the usage I have in mind.

13 See, for example, Michael Smith, The Moral Problem (Oxford: Blackwell, 1994).

14 Failure to take adequate account of this point undermines Martha Nussbaum’s respect–based defense of political liberalism. See her “Perfectionist Liberalism and Political Liberalism,” Philosophy and Public Affairs 39, no. 1 (2011): 3–45 and my response to it in “Perfectionism, Reasonableness and Respect,” Political Theory 42, no. 4 (2014): 468–89.

15 There also can be Type (2) reasons that are related to Type (1) person-dependant reasons, but I will not discuss them.

16 For discussion of this point see Scheffler, Samuel,“Valuing,” in his Equality and Tradition (Oxford: Oxford University Press, 2010), 15–40.Google Scholar As Scheffler notes, we can acknowledge that certain activities are valuable, such as bird watching, without taking ourselves to have reasons to engage in these activities.

17 I may have other reasons to support the state action. Perhaps I have a reason to support state action that funds valuable activities, whether or not I value them. But I do not have the person-dependent reason to support the state action that you have.

18 My account of exemplary epistemic agents as those who manifest skill in epistemic tasks draws on Sosa’s conception of epistemic normativity as a kind of performance normativity. But the details of this account and how it relates to Sosa’s conception are less important to my argument than the general idea that it is intended to illustrate. See Ernest Sosa, Knowing Full Well (Princeton, NJ: Princeton University Press, 2011).

19 The ideal of public justification, I am assuming, grounds duties on the part of state officials to aim — and to take reasonable steps — to publicly justify their proposals to citizens. But full compliance with these duties does not ensure that the proposals will be publicly justifiable to every citizen.

20 For the notion of an epistemic field, see Skorupski, John, The Domain of Reasons (Oxford: Oxford University Press, 2010), 41–45.CrossRefGoogle Scholar I characterize the notion differently from him.

21 Here I register agreement with Rawls’s observation that “the way we assess evidence and weigh moral and political values is shaped (how much so we cannot tell) by our total experience, our whole course of life up to now; and our total experiences surely differ” (Rawls, Political Liberalism, 56–57).

22 This thesis is an adaptation of the more general “Uniqueness Thesis” proposed by Richard Feldman in his “Reasonable Religious Disagreements,” in Louise Antony, ed., Philosophers without Gods (Oxford: Oxford University Press, 2007). Note that a set of standards of reasoning, as I am understanding it, includes the full range of norms that govern belief formation with the aim of determining what one has reason to do. These norms establish a bridge between a person’s evidence and his Type (2) reasons.

23 There is a growing philosophical literature on the epistemology of disagreement. I cannot enter into this debate, but I will note that in the text I am signaling my rejection of the so-called “Equal Weight View,” as it applies to peer disagreement in politics. For discussion, see Thomas Kelly, “Peer Disagreement and Higher-Order Evidence,” in Feldman, Richard and Warfield, Ted, eds., Disagreement (Oxford: Oxford University Press, 2010).CrossRefGoogle Scholar

24 Rawls invokes this slogan in support of his own account of public justification (Political Liberalism, 162 n. 28). For critical discussion of the slogan in the context of a consideration of Rawlsian publicity, see Cohen, G. A., Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 323–27.CrossRefGoogle Scholar

25 Cohen suggests that publicity is best thought of as a desideratum, not a constraint, on justified rules of social regulation (ibid., 325). See also B. Bower, “The Limits of Public Reason,” Journal of Philosophy 91, no. 1(1994): 5–26; and David Enoch, “Against Public Reason,” in David Sobel, Peter Vallentyne, and Steven Wall, eds., Oxford Studies in Political Philosophy, Volume 1 (Oxford: Oxford University Press, 2015).

26 I don’t say the standard Rawlsian view, since Rawls himself and many of his followers seem to extend public justification to those with epistemically unreasonable views. But see Joshua Cohen who characterizes reasonable pluralism by reference to the set of fully reasonable views (“Moral Pluralism and Political Consensus,” in his Philosophy, Politics, Democracy [Cambridge, MA: Harvard University Press, 2009], 52–53). Also see Leland, R. J. and van Wietmarschen, H., “Reasonableness, Intellectual Modesty, and Reciprocity in Political Justification,” Ethics 122, no. 4 (2012): 721–47.CrossRefGoogle Scholar

27 As far as I know, the idea of an epistemic filter comes from Jonathan Dancy. See Practical Reality (Oxford: Oxford University Press, 2000), 57–59, 65–66.