quong-the role of public reason

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The Role of Public Reason*

Jonathan Quong

October 10, 2015

We disagree about how to live. We disagree, for example, about which God, if

any, to worship, about sexual morality, about recreational drug use, and about

whether certain artists’ work is obscene and should be banned. There are always

some people who aim to resolve these disagreements through the use of

coercion: they aspire to use the coercive power of the state to impose their views

about how we ought to live on those who disagree. Liberals typically reject this

approach—they hold that it’s wrong or impermissible to use coercion to impose

one’s views about religion or the good life on those who disagree. Some believe

this liberal attitude is best explained by a particular view of public reason. In the

most general sense, public reason requires that the moral or political rules that

regulate our common life be, in some sense, justifiable or acceptable to all those

persons to whom the rules purport to apply. Some liberals appeal to a particular

version of this idea to explain the wrongness of coercively imposing one’s views

about how best to live:

Coercion: Coercion (defined broadly to include conditional threats or the

actual use of physical force) is only permissible or legitimate when

exercised on the basis of reasons that the subjects of coercion can

* I presented a version of this paper to Joseph Raz’s seminar at Columbia, and I’m very grateful to Joseph and all the other participants for their penetrating comments and questions. Thanks also to Tom Sinclair and Rebecca Stone for detailed comments on an earlier draft.

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reasonably be expected to endorse. Coercion is, in this way, special—other

methods of influencing people do not stand in need of public justification.

The role of public reason, on this view, is to regulate the use of coercion. Thomas

Nagel and Charles Larmore, among others, endorse versions of this principle.

But some think this principle doesn’t go far enough. They argue for a

more expansive view of public reason as regulating all of social morality:

Social Morality: Moral demands only have authority over others when

made on the basis of reasons that the subjects of the demands can

reasonably be expected to endorse. All interpersonal moral rules or

demands thus stand in need of public justification.

Gerald Gaus is the main proponent of this more expansive view of public

reason’s role.

I believe both these views are mistaken. The former is too narrow, while

the latter is too broad. Coercion is not the only thing that stands in need of public

justification, but public reason is not so expansive as to regulate the whole of

social morality. Instead I defend an alternative account of public reason’s role.

Every well-‐‑functioning society depends on a set of widely accepted rules that

define the terms on which we interact with one another. These terms include an

account of individual rights and liberties, an account of how political power can

be obtained and exercised, and an account of how the distribution of property

and other advantages and disadvantages arising from our society is to be

determined. Although there may be many other social or moral rules, these basic

rules are typically recognized as having priority over other considerations, and

whatever differences there are between persons, these are the rules to which all

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persons are expected to adhere. I argue that the role of public reason is to

regulate the content of these rules, that is, to define the terms of public or social

justice.

The paper is structured as follows. Section I briefly sketches some key

issues for proponents of public reason. Sections II and III analyze, respectively,

Coercion and Social Morality. Section IV presents my account of the role of public

reason, Justice, and section V addresses some objections.

But before turning to the main arguments, let me make a few clarificatory

remarks. First, the main topic of this paper is the role of public reason, by which I

mean the purpose or function of public reason—what it’s supposed to do. But,

unsurprisingly, any view about the role of public reason will have implications

for other closely related questions. For example, the role of public reason is very

closely linked to the scope of public reason, that is, the range of topics to which

the constraints of public reason must directly apply. One’s view about the role of

public reason is also likely to be tightly connected to the issue of public reason’s

moral basis: the underlying justification for public reason.

Second, and relatedly, this paper does not provide a comprehensive

defense of the idea of public reason, nor does it address many of the other

important questions relevant to a full account of public reason. Of course I hope

that my account of public reason’s role is helpful in showing why the idea of

public reason is compelling, and why certain prominent objections pressed

against it are not necessarily successful, but this paper doesn’t aim to persuade

those who see the idea of public reason as fundamentally misguided.

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The idea of public reason is rooted in a particular view of persons as free and

equal. We are free in the sense that no person is our natural ruler or moral

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superior—no person is naturally in a position to command our obedience or tell

us how we must live. We are equal because we are each free in this way. How

then, can it ever be permissible or legitimate for some people to require that

others conform to some rule, or even use coercion to enforce particular rules? Of

course this question would not be difficult if we were always in agreement about

what to do and how to live, but in the face of deep and permanent

disagreement,1 how can any interpersonal rules (I use this term as a placeholder,

for now, in order to be neutral regarding the role of public reason) be consistent

with the freedom and equality of persons?

Proponents of public reason believe rules can be consistent with the

freedom and equality of persons when those rules are, in some sense, acceptable

or justifiable to all those to whom the rules purportedly apply. Exactly why rules

that meet this standard are consistent with the freedom and equality of persons

is the subject of dispute amongst proponents of public reason, and I will

postpone any further discussion of this question for now. Instead I want to make

a few brief observations about public reason that will be useful for the discussion

to follow.

First, proponents of public reason do not take people as they are. Real

people may make simple inferential errors, they may hold morally repugnant or

irrational beliefs, or they may be driven by narrow self-‐‑interest or prejudice.

Proponents of public reason thus always engage in a certain amount of

idealization. The constituency of persons to whom rules must be acceptable or

justifiable can be idealized epistemically, morally, or both. The challenge for 1 All accounts of public reason make some assumption about the permanence of pluralism or disagreement regarding religious, philosophical, and ethical ideas. Proponents of public reason also typically assume that this disagreement is reasonable in the sense of being the result of sincere and conscientious efforts of reasonable and rational people to reach answers about religion, morality, and ethics under free conditions, rather than being the product of prejudice, irrationality, or narrow self-‐‑interest.

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proponents of public reason is not difficult to anticipate. The more one idealizes

the constituency of persons to whom the rules must be justifiable, the easier it

will be to get determinate results that also seem attractive, but this may come at a

steep cost: highly idealized accounts of the constituency may seem so detached

from what real persons are like that it may be unclear in what sense the resulting

rules are really acceptable or justifiable to the actual persons who are bound by

them. Alternatively, accounts of public reason that engage in very limited

degrees of idealization may seem to have greater application to people as they

are, but such accounts may struggle to yield any determinate rules that are

acceptable to everyone while also being consistent with minimal moral

standards. I will return to this issue in the concluding section.

This issue of idealization is closely connected to what it means for a

proposed rule to be acceptable or justifiable. If the constituency of persons to

whom our rules must be justifiable is sufficiently idealized, then public reason

may entail that all successful justifications are unanimous; if a rule has been

justified to one member of the constituency it will be justified to all since all

members have been idealized to the point where they share the same set of

beliefs and priorities. But accounts of public reason that engage in less

idealization may not have this feature—if each real person to whom some rule

applies is only moderately idealized, then a given rule may be justifiable or

acceptable to some members of the constituency, but not others.

Relatedly, accounts of public reason that engage in less idealization are

more likely to allow for convergence forms of public reason. Some rule, R, has

been justified via convergence when R is acceptable or justifiable to different

members of the constituency for entirely different and non-‐‑shared reasons. For

example, R might be justifiable to A on the basis of A’s Catholicism, whereas R

might be justifiable to B on the basis of her utilitarianism, and so on. Consensus

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accounts of public reason, by contrast, are those that require the reasons in

support of a given rule to be ones that all members of the constituency recognize

as sound considerations that are, at a minimum, plausibly sufficient to justify R.

The issues I’ve just described are by no means the only areas of dispute

amongst those who favor some version of public reason, but they are central

areas of disagreement, and their relevance will hopefully be apparent in the

discussion that follows.

II

Let’s return to the first view about the role of public reason:

Coercion: Coercion (defined broadly to include conditional threats or the

actual use of physical force) is only permissible or legitimate when

exercised on the basis of reasons that the subjects of coercion can

reasonably be expected to endorse. Coercion is, in this way, special—other

methods of influencing people do not stand in need of public justification.

This view can explain many core liberal convictions, in particular, why it

is wrong to use the coercive power of the state to enforce particular moral or

religious views on dissenting minorities. Coercion might also appear consistent

with our attitudes towards non-‐‑coercive behavior. For example, though it would

be wrong for me to coerce you on the basis of religious beliefs that you do not

share, it does not seem similarly objectionable for me to refuse to marry you on

the basis of religious beliefs that you do not share, or for me to give my money to

charitable organizations that share my religious convictions and refuse to give it

to those that do not. Because the latter actions are not coercive, I can legitimately

be guided by my own controversial religious views in deciding what to do—my

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actions do not need to be grounded in reasons that others can reasonably be

expected to endorse.2

But while Coercion may cohere with many liberal convictions, it faces a

number of serious problems.3 What these objections demonstrate is not that

coercion does not stand in need of public justification, but rather: (i) coercion is

not the only thing that stands in need of public justification, and (ii) proponents

of Coercion have failed to identify a compelling and coherent rationale for

restricting the role of public reason to coercion.

To begin, there are various examples where Coercion has apparently

troubling implications.4 Suppose our country has a state-‐‑run lottery, and the

profits from the lottery are used to subsidize the Catholic Church and Catholic

charities. The rationale offered for this policy is that Catholicism is the one true

religion. The funds are not coercively obtained, but I think many of the same

liberals who object to the coercive imposition of religious views will find this use

of the lottery funds to be seriously objectionable, even if less troubling than

outright coercion. Or imagine a society where laws are debated and determined

democratically, but all citizens always internalize and voluntarily comply with

the rules issued by the government even when they believe them to be deeply

mistaken or lacking a coherent rationale. They do so because they believe they

are required either as a matter of justice or legitimacy to comply with a

democratic government’s demands. Since these rules will be followed as a result

of internalization rather than via the threat of coercion (there is no police force or

penal system), proponents of Coercion must deny that the fundamental 2 My actions might still, of course, be open to criticism, even if they are permissible. 3 For other critiques of Coercion see Colin Bird, ‘Coercion and Public Justification,’ Politics, Philosophy, & Economics 13 (2014), 189-‐‑214; or Andrew Lister, Public Reason and Political Community (London: Bloomsbury, 2014), chapter 3. 4 These examples are from my ‘On the Idea of Public Reason,’ in A Companion to Rawls, Jon Mandle and David Reidy, eds. (Oxford: Wiley-‐‑Blackwell, 2014), 272-‐‑273.

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institutions, rights, and laws in this imagined society ought to be regulated by

the idea of public reason.

I think these examples provide reasons to doubt that Coercion is correct,

but such examples are not decisive. Proponents of Coercion can respond by biting

the bullet, and insist that public reason does not apply in these cases. They might

also argue that other moral principles can explain what’s wrong with the

government’s behavior in the first case, or why our imagined non-‐‑coercive state

ought to abstain from passing laws that depend on controversial moral or

religious rationales. I have my doubts about these replies on behalf of Coercion,

but since I think there are deeper problems, I won’t pursue this line of argument

further.

A second problem emerges when we try and identify which acts or rules

qualify as coercive, and why there should be a presumption that such acts or

rules are impermissible unless publicly justified.5 Consider the following cases:

Albert Gets a Date: Albert tells Betty that unless she agrees to go on a

date with him, he will destroy a painting that belongs

to Betty, a painting that she loves very much, but

which has no market value.

Carl Gets a Date: Carl tells Debra that unless she agrees to go on a date

with him, he will destroy a painting that belongs to

Carl, a painting that Debra loves very much.

5 I originally developed this objection in an online commentary I offered on a paper by Kevin Vallier and Gerald Gaus. See: http://publicreason.net/wp-‐‑content/PPPS/Fall2008/JQuong1.pdf

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Most will agree that Albert’s action is coercive: threatening to destroy someone

else’s property unless they do something that they otherwise would not do

seems like a paradigm case of coercion. But what about Carl’s behavior? I suspect

that many people will deny that Carl’s behavior is coercive in the same way. If

Carl’s attempt to get a date with Debra is not coercive in the way that Albert’s is,

this seems to show that our beliefs about whether a given action is coercive

depends on our prior beliefs about rights or justice. If Carl’s action is not

coercive, it must be because Carl, unlike Albert, is acting within his rights. He is

only in threatening to destroy his own painting, not someone else’s. Determining

whether or not someone is acting within his rights thus might seem to be one of

the variables necessary to decide if an act is coercive.

This pair of examples poses a dilemma for proponents of Coercion. On the

one hand, a proponent could agree the first case is an instance of coercion, and

the latter is not, and thus only the former is regulated by public reason. This

response effectively concedes that coercion is a moralized notion—that we

cannot know whether something is coercive until we already have a substantial

set of background beliefs about justice and individual rights. But to make this

concession seems fatal to Coercion since it precludes public reason from playing

any role in determining the content of all those individual rights and principles

of justice that are prerequisites for understanding whether a given act or rule is

coercive. On this view, public reason would seem to arrive far too late in the

justificatory process to play the sort of substantive role attributed to it by

proponents of Coercion. Any apparently coercive policy could be justified by

appeal to a controversial religious or ethical doctrine, and declared exempt from

the standards of public reason by virtue of the fact that the policy determines

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what rights individuals possess, and thus is not coercive in the relevant

moralized sense.6

On the other hand, the proponent of Coercion could insist that the two

examples are in fact analogous; that Carl, just like Albert, is guilty of trying to

obtain a date via coercion. On this view coercion could be defined by reference to

the severity of the harm (physical, psychological, financial) that the coercer

threatens to impose, regardless of whether or not the coercer has the moral right

to impose this harm. Since (we can assume) the harm Carl threatens to impose on

Debra is equivalent to the harm Albert threatens to impose on Betty, then if

Albert’s act is coercive, so is Carl’s.

Even if we set aside any doubts about the plausibility of this account of

coercion, this latter reply will not serve as an effective defense of Coercion. The

problem with this reply is that it’s not plausible to suppose that Carl’s act ought

to be subject to the same justificatory burden as Albert’s. Because the painting

belongs to Carl, he surely ought to be able to decide what to do with the painting

without having to publicly justify his decision. Consider a different case.

Suppose I have justly acquired some wealth, and I now make the following

threat to my local pastor: stop condemning same-‐‑sex marriage in your sermons,

6 A proponent of Coercion might try to blunt the force of this first horn of the dilemma by conceding that although coercion is a moralized notion, it can be defined relative to a fairly minimal view about natural rights against physical force. Since most political rules do involve threatened transgressions against individuals’ natural rights against physical force (there is always the threat of criminal sanction lurking in the background), there will thus still be a large role for public reason to play. This response, however, does not seem promising for two reasons. First, it ties the proponent of Coercion to a particular view about natural rights against force, and thus disputes about whether this view of individual rights is sound cannot be resolved by appeal to public reason. Second, the proponent of Coercion seems committed to the view that coercive acts stand in need of public justification because such acts threaten the natural rights of persons. But then it’s open to opponents of Coercion to argue (plausibly) that the natural rights of persons include more than claims against physical force, they also include positive rights to be provided with urgently needed aid when it’s easy to do so, in which case failures to aid would also stand in need of justification, regardless of whether they are coercive.

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or I will leave my small fortune to the local animal shelter rather than your

church. If we adopt the non-‐‑moralized account of coercion, my threat is coercive,

but it seems very strange to insist that I cannot threaten my pastor in this way

unless I my threat can be justified to him on the basis of public reasons.

But let’s set aside this concern about the formulation of coercion and turn

our attention to the main Kantian rationale offered for Coercion. Charles Larmore

says 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”.7

Conversely, “if we try to bring about conformity to a rule of conduct solely by

the threat of force, we shall be treating persons merely as means, as objects of

coercion, and not also as ends, engaging with their distinctive capacity as

persons”.8 Similarly, Thomas Nagel says that “if you force someone to serve an

end that he cannot be given adequate reason to share, you are treating him as a

mere means—even if the end is his own good, as you see it but he doesn’t. In

view of the coercive character of the state, the requirement becomes a condition

of political legitimacy”.9

I think there are at least two problems with this rationale. First, I do not

think it’s true that whenever you coerce someone to serve an end he cannot be

given adequate reason to share, you treat that person as a mere means, if by

“mere means” we mean an object that has no moral claims or standing of its

own. As Derek Parfit has shown, we can coerce or harm others—even when

those others lack sufficient reasons to share our ends—and yet still treat those we

coerce or harm as much more than mere means.10 Suppose, for example, I force

you to help me rescue a boy that I believe to be the incarnation of the Buddha, 7 Charles Larmore, “The Moral Basis of Political Liberalism,” Journal of Philosophy 96 (1999), 608. 8 Ibid., 607. 9 Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991), 159. 10 Derek Parfit, On What Matters: Volume I (Oxford: Oxford University Press, 2011), 222-‐‑223.

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and this rescue costs you your leg, but further suppose that I am going to lose my

own life in this rescue. I could save my life if I imposed further harm on you (say

the loss of another leg), but I don’t do this because I believe doing so would be a

wrongful imposition on your freedom; I think you can be forced to sacrifice your

leg for a God, but not for a regular person like me. It does not seem right to say I

treat you as a mere means, as a mere object to be used however I see fit, since I

recognize significant moral constraints on the ways I may permissibly treat you.

A proponent of the Kantian rationale for Coercion may reply that this

objection misunderstands what she means by treating someone as a “mere

means”. She does not literally mean treating a person as if he were an inanimate

object; rather, she means forcing someone to serve an end that he does not have

adequate reason to share. But if this is what it means to treat others as a mere

means, the rationale becomes an empty tautology: whenever you coerce someone

to serve an end he cannot be given adequate reason to share, you coerce someone

to serve an end he cannot be given adequate reason to share.

But even if we set this objection aside, the proposed Kantian rationale also

fails to establish that coercion uniquely stands in need of public justification.

Coercion, we can assume, involves either threats made with the aim of getting

another person to perform or refrain from performing some act, or else the use of

violence or force against others. But suppose, for example, that I live upstream

and you live downstream along a river.11 We both rely on fishing the river to

survive. I construct a net that catches all the fish upstream and prevents any of

the fish from reaching you many miles downstream. I have no intention of

getting you to do anything, nor do I use violence or force to take anything from

you: I’m just trying to catch as many fish as I can. But doing so means you will

11 I borrow the basic form of the example from Kok-‐‑Chor Tan, Justice, Institutions, and Luck: The Site, Ground, and Scope of Equality (Oxford: Oxford University Press, 2012), 162.

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starve to death. Or suppose that in order to construct a temple to my God, I use

chemicals that seep into the ground under the temple, and eventually affect the

soil you use for farming, rendering it infertile, which leaves you facing

starvation. I foresee this consequence, but I am not trying to get you to perform

any particular act, and it seems a stretch to say that I use force or violence against

you.12 I find it difficult to see why the injunction not to treat others as mere

means should not apply in these cases as well. It’s true that in these cases

harming you is not instrumentally useful to me, but I may still treat you as an

object with no substantial moral standing. These cases seem sufficiently similar

to cases of wrongful coercion where the coercion cannot be justified to those who

are coerced: in my examples you are treated in ways that do not seem justifiable

to you, and which result in serious and (let’s stipulate) easily avoidable harm.

Of course the proponent of the Kantian rationale can insist that my cases

are different—that the special wrongness of treating others as mere means is

restricted to instances where you use force to get others to act in particular ways.

It’s the attempt to bend a person’s will to your own that is uniquely subject to the

requirement of public reason—not more general instances of harming or

negatively affecting others. But I think this response depends on a very specific

and controversial ethical doctrine—one that makes our wills or the maxims on

which we act of special moral importance, perhaps the only thing that grounds

our moral worth or status. This is a Kantian view, but many reasonable people

do not accept this account of our moral worth. Insofar as one of the main aims of

public reason is to provide an account of interpersonal justification that

reasonable persons can all be expected to endorse, it seems self-‐‑defeating for 12 Of course one might insist these cases do involve coercion by appealing to a moralized baseline to determine what counts as force or violence (i.e. perhaps I am stealing or damaging your property and thus using force against you) but this will not be of much help to the proponent of Coercion—the same problem arises here as it did in the examples involving Albert and Carl.

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proponents of public reason to rely on such a narrow account of what is morally

important about persons. But without this narrow account, the appeal to the

wrongness of treating others merely as a means will not vindicate a unique focus

on coercion.

In sum, Coercion seems deeply flawed. It has counterintuitive implications

about the exercise of political power when that power is not coercive, it does not

look plausible regardless of whether we adopt a moralized or non-‐‑moralized

account of coercion, and its Kantian rationale does not seem successful.

III

Gerald Gaus has recently offered a very different picture of the role of public

reason.13 He begins with this question: can social morality’s alleged authority be

reconciled with a conception of others as being free and equal interpreters of

morality; as each having equal standing to decide what is true or false with

regard to morality’s requirements? As he puts it,

Because we recognize other moral persons as free and

equal, having authority—perhaps we should say

“moral sovereignty”—to interpret their own moral

obligations for themselves, our claims to have

standing to command that they comply with our view

of the demands of morality appears to manifest

disrespect for them as equal interpreters of morality.14

13 Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011). 14 Ibid., 17.

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Given pervasive disagreement about morality, how can we engage in the

practice of morality—the regular practice of making demands on others and even

enforcing those demands—in a way that also manages to respect others as free

and equal interpreters of morality? Gaus’s answer is that a justified social

morality will only make demands of us when we already have sufficient reasons

to act in accordance with its demands, that is, when the demands of social

morality can be justified to us. This is how we can treat each other as free and

equal interpreters of morality’s demands. Indeed, on Gaus’s account, public

reason is an implicit and essential feature of our everyday moral practices.15 In

particular the main reactive attitudes associated with interpersonal morality—

including blame, indignation, and resentment—only make sense when the moral

demands we make of others can be justified by appeal to reasons that those

others have; that is, to reasons a moderately idealized agent would endorse from

within the evaluative perspective of the person to whom the demand is made

(throughout the rest of this section, following Gaus, this is what I shall mean

when talking about the reasons a person “has”). Gaus thus endorses

Social Morality: Moral demands only have authority over others when

made on the basis of reasons that the subjects of the demands can

reasonably be expected to endorse. All interpersonal moral rules or

demands thus stand in need of public justification.

Gaus’ theory of public reason is very rich and complex, and my aim here is not to

evaluate his whole account, or even his account specifically.16 Rather, I focus on

15 Ibid., 184. 16 I offer a brief critique of one of its central elements in, ‘What is the Point of Public Reason?’ Philosophical Studies 170 (2014), 533-‐‑545.

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two reasons to doubt that an expansive account of public reason’s role, like Social

Morality, is correct.

First, Social Morality seems implausibly broad. When adherents of a

religious community hold each other to account for failing to live up to their

religion’s requirements, the members of the religious community treat these

requirements as being authoritative, but not necessarily because the

requirements pass some test of public reason. The religious requirements are, by

their nature, controversial and not grounded in public reasons.

A proponent of Social Morality might respond that this misunderstands

how the demand for public justification operates. When a moral demand is made

of everyone, then its justification must eschew controversial religious or ethical

doctrines and appeal only to public or shared reasons,17 but when a moral

demand is made only of some sub-‐‑set, like the members of a particular religious

community, then the demand only needs to be justifiable to the members of the

community, and thus controversial or sectarian rationales for moral demands are

perfectly appropriate within particular religious or ethical communities.

I don’t find this response persuasive. I think it misconstrues the way the

members of the community can understand the basis of their religious or moral

requirements. Members of particular religious and ethical communities do not

necessarily understand their practices of interpersonal morality—blaming,

resentment, indignation, holding accountable—as being dependent on any

notion of public justifiability even when the constituency of persons to whom the

rules must be justifiable is restricted to members of the group. Rather, the

members of many such communities may see it as appropriate to hold each other

17 Proponents of convergence forms of public reason will protest that shared reasons are not required even in these cases, but I set this worry aside for now.

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accountable to God’s commandments, or religious truth, as each person sees it,

regardless of whether others see it in the same light.

A proponent of Social Morality can insist that there is a second-‐‑order sense

in which the notion of public justification or shared reasons operates in such

cases. All the members of the community agree (at some level of idealization)

that members of the community can hold each other to account by appealing

directly to religious truth or God’s will, and so while the first-‐‑order rationale for

some alleged requirement may not meet the test of being justifiable to others, the

more general framework is justifiable to each member of the community, and

this is what vindicates the authority of the more specific requirements or

commands.

This explanation strikes me as dubious, however, at least when presented

as an account of how members of religious or other ethical communities

necessarily understand their own moral practices. Of course a proponent of Social

Morality might insist that regardless of whether the members of a community

understand their moral practices in this way, their practices must have this

characteristic in order for some member A to properly blame B or hold B to

account. In other words, if some higher order norm such as “God’s commands

are the sole basis of authoritative moral requirements” is not justifiable to each

member of the community, then community members are not engaged in

legitimate instances of blaming or holding accountable when they invoke God’s

commands as the basis of blaming others or holding others to account. But this

seems a very large bullet for the proponent of Social Morality to bite.18 I don’t

think the best account of public reason should be committed to the view that

18 Perhaps particularly for Gaus, who emphasizes the importance of taking the actual practices of social morality seriously when developing our philosophical theories of morality. See for example Gaus, Order of Public Reason, 174.

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members of particular religious or ethical communities cannot legitimately or

properly hold each other to account or blame each other unless their particular

community’s moral standards are justifiable to each member of the community—

this imposes the idea of public justification on aspects of our moral or ethical

lives where it doesn’t necessarily belong. Some of our everyday moral practices

do not depend upon or presuppose public justification; rather they seem to

depend on other forms of justification, including direct appeals to religious or

moral truth.

The preceding objection focuses on the way public reason may not

necessarily regulate the moral claims we make on each other within certain

religious or ethical communities. But I also think public reason does not regulate

many of the moral claims that cross sub-‐‑group boundaries. Consider, for

example, the debate that two people from different religious communities might

have about pre-‐‑marital sex. Ernest is from an Evangelical Christian family, and

believes pre-‐‑marital sex to be morally wrong. Felicity is a liberal atheist, and

believes sex between consenting adults is not wrong, and more strongly, she

believes it’s a very good thing if most adults have pre-‐‑marital sex. One way to

characterize their dispute is that they disagree about the scope of social morality:

Felicity thinks self-‐‑regarding choices that do not harm others are essentially

outside the scope of social morality, whereas Ernest holds a different view. But of

course they hold different views about the scope of social morality because they

hold different views about the underlying grounds of moral wrongdoing: Ernest

thinks the underlying basis is God’s will, whereas Felicity thinks moral

wrongdoing must be explicable by reference to some setback to the interests of

persons. Ernest blames Felicity for engaging in and encouraging activity he sees

as wrongful, and Felicity blames Ernest for holding what she sees as narrow-‐‑

minded and Puritanical views.

19

How can a proponent of Social Morality make sense of their disagreement,

and the reactive attitudes they hold? If we assume that Felicity’s views depend

on an ethical framework that Ernest cannot reasonably be expected to endorse

(and vice versa) then the proponent of Social Morality must believe that Ernest

and Felicity cannot rightfully hold each other accountable or blame each other—

such behavior is inconsistent with showing due respect for others as free and

equal interpreters of morality’s requirements.

This conclusion seems hard to believe. A significant part of moral life

consists in disagreements like the kind Ernest and Felicity are having. We often

disagree with others about the scope of social morality, as well as the underlying

basis of moral wrongdoing and rightness. When we have these disagreements,

and when we hold others accountable for acting on and holding what we take to

be false and morally pernicious views, we do not necessarily treat others

disrespectfully, nor threaten their status as free and equal interpreters of

morality’s requirements. Ernest need not deny that Felicity has the standing to

make her own judgments about morality’s requirements—I don’t think he needs

to be acting in a way that ought to trigger public justification. Rather, we can

imagine Ernest saying, “Of course you are [in some sense yet to be defined] at

liberty to make up your own mind about sexual morality, but I think you are

terribly mistaken in the judgments you’ve reached, and in reaching those

judgments and acting on them you show yourself to be, at least in one sense, a

bad person who acts wrongly, and I blame you for that”. And Felicity may take a

similar view of Ernest. This kind of moral disagreement is an essential feature of

social morality in a pluralistic society, and yet because it involves foundational

disagreements about the underlying basis of morality, it cannot be regulated by

public reason.

20

Not all moral demands and reactive attitudes invoke the particular kind of

demands that should be the appropriate object of public reason. Ernest can hold

Felicity accountable for her (as he sees it) pernicious views, he can blame her, and

even shun her, while still respecting Felicity status as free and equal, as someone

who has the standing to make her own determinations about sexual morality. He

may think she is a bad person who violates moral requirements in a way that

merits criticism and condemnation, but if he recognizes that his judgment

depends on an evaluative perspective Felicity can reasonably reject, and thus

recognizes that this judgment should play no part in determining Felicity basic

rights, claims over property, and other matters of basic justice, then I submit that

Ernest shows the appropriate respect for Betty’s status as free and equal. On this

account—which I develop and defend in the following sections—moral

judgments and demands only need to be publicly justified when they invoke the

special status reserved for justice.

IV

Let’s begin with the circumstances that give rise to the problem to which I

believe public reason is addressed. The circumstances are familiar—they are the

circumstances of justice. These circumstances are characterized by a conflict as

well as an identity of interests. As Rawls famously explains, “there is an identity

of interests since social cooperation makes possible a better life for all than any

would have if each were to live solely by his own efforts. There is a conflict of

interests since persons are not indifferent as to how the greater benefits produced

by their collaboration are distributed, for in order to pursue their ends they each

21

prefer a larger share to a lesser share”.19 These circumstances give rise to the

special problem of social justice:

A set of principles is required for choosing among the

various social arrangements which determine this

division of advantages and for underwriting an

agreement on the proper distributive shares. These are

the principles of social justice: they provide a way of

assigning rights and duties in the basic institutions of

society and they define the appropriate distribution of

the benefits and burdens of social cooperation.20

This is the problem of social justice. To live together in a way that will be

mutually beneficial, there must be rules, generally accepted as binding, which

allocate individual rights and duties, and determine the rightful division of

advantages and disadvantages, particularly given moderate scarcity of resources

and the fact that persons are not purely altruistic, but rather have their own

distinct ends they wish to pursue. A conception of justice provides a common

point of view from which competing claims can be adjudicated; “one may think

of a public conception of justice as constituting the fundamental charter of a well-‐‑

ordered human association”.21

But a conception of justice must do more than provide a commonly

recognized set of rules for allocating rights and resources. After all, authoritarian

societies ruled by tyrants might also have a publicly recognized set of rules that

19 John Rawls, A Theory of Justice: Revised Edition (Oxford: Oxford University Press, 1999), 4. 20 Ibid., 4. 21 Ibid., 5.

22

perform this function that most people accept as binding. Instead, we want our

conception of justice to be one that is congruent with our status as free and equal:

we are each equally free, not naturally subject to anyone else’s authority. And so

a conception of social justice, Rawls suggests, should be something that can “be

shared by citizens as a basis of a reasoned, informed, and willing political

agreement”.22 Rules that are simply imposed with force, but that make no claim

to the reasoned allegiance of persons, cannot successfully serve as the public

charter of a society of free and equal persons.

If this is the role of a conception of social or public justice (I will use these

terms interchangeably), public reason is an essential feature of a just society.

Without the constraint of public reason, a conception of justice could permissibly

draw on any reasonably contested religious, ethical, and philosophical views.

The resulting conception of social justice would not fulfill its role; it would not be

one that can serve as the basis of free, informed, and willing agreement amongst

persons, provided we assume that reasonable disagreement about religious,

ethical, and philosophical matters is a permanent fact of life. Instead, our

conception of justice should be constructed by appeal to public or shared

reasons—considerations that all persons (suitably idealized) can recognize and

be expected to endorse. Only when a conception of justice is regulated by the

idea of public reason can it successfully serve as an appropriately shared

perspective from which decisions about individual rights, duties, and

entitlements can be fairly made. In sum, I believe we should endorse:

Justice: Demands of social or public justice should only be made on the

basis of reasons that the subjects of the demands can reasonably be

22 Rawls, Political Liberalism (New York: Columbia University Press, 1996), 9.

23

expected to endorse. Conceptions of social or public justice thus stand in

need of public justification, but this is not necessarily true of other moral

demands.

This view has clear advantages over Coercion. That view, recall, had

implausible implications in cases that did not involve coercion, but which did

involve matters of basic justice, for example, a government lottery to allocate

resources to one religious group rather than another, or a government which had

the ability to impose duties on citizens without the use of coercion. If public

reason regulates anything, it surely must regulate the basic rules that determine

how resources will be allocated in society.

Justice also has advantages when compared to Social Morality, since it does

not implausibly expand the role of public reason to cover every moral demand

that we make of each other. But this comparison to Social Morality may also be

puzzling. What is special about the demands of justice when compared to other

moral demands? Two features of our public conception of justice provide the

answer to this question.

First, we expect others to give priority to the demands of justice. You and I

may have deep religious, ethical, or philosophical disagreements, and these

disagreements may lead us to think badly of each other, to blame each other, and

to denounce each other as vicious or immoral. But these disagreements do not

trump claims of justice. I do not share your religious beliefs and I think it’s

morally wrong for you to raise your children to hold these beliefs, and morally

wrong for you to donate charitably to your Church. But justice demands of me

that I recognize your right to make these moral mistakes, and I must give this

right priority over my other moral judgments. What, exactly, does it mean for

justice to take priority in this way? Of course it means—as proponents of Coercion

24

will be quick to point out—that I am duty-‐‑bound to refrain from using coercion

to interfere in these choices of yours that I believe are wrong. But the priority of

justice involves much more than this restriction on the permissible use of

coercion. Most obviously, I am duty-‐‑bound to obey the accepted rules of public

justice that apply to me, regardless of whether these rules accord with my

religious, ethical, or philosophical convictions. I am also duty-‐‑bound to take

reasonable steps to protect your rights against those who might try and infringe

them, even when I share the moral judgments of the would-‐‑be infringers. I

should also support measures to compensate you if your rights are infringed

regardless of my personal views about the immorality of your choices. The

priority of justice also entails that I must set aside all of my beliefs that are not

reasonably acceptable to others when I exercise my political power on matters of

social justice (e.g. when I vote). Furthermore, although I may try to overturn laws

that I believe are unjust (even engage in civil disobedience) I should not try and

overturn laws I recognize to be just, but which conflict with my religious beliefs

or conception of the good.23

The second feature of social justice is its role as a framework of rules that

apply to societies characterized by the fact of reasonable pluralism. As I mentioned

earlier, pluralism is reasonable when we assume that persons disagree about

religious, ethical, and philosophical matters not as a result of self-‐‑interest,

ignorance, prejudice, or irrationality, but rather as a result of the sincere efforts of

reasonable and rational people, living under free conditions, to decide how to

live and what to value.

23 We may wish to add the caveat that the claims about priority described in this paragraph only apply when the requirements of justice meet the further condition of being legitimate. I return to this point in section V.

25

These two features, priority and reasonable pluralism, combine to explain

why the demands of social justice are special when compared to other moral

demands, and unlike other moral demands, stand in need of public justification.

Without the fact of reasonable pluralism—if there were complete agreement

about religious, ethical, and philosophical issues—the requirement for public

justification would be superfluous. Alternatively, if justice did not have the sort

of priority described in the penultimate paragraph, then the demands of justice

wouldn’t call for public justification even assuming the fact of reasonable

pluralism. What’s special about the demands of justice is that we expect others to

give them priority over their reasonable religious, ethical, or philosophical views,

and others expect the same of us. Consider this way of expressing the priority of

justice: “I know you think I am acting wrongly, and I know your judgment arises

as a result of your sincere and reasonable efforts to determine moral truth, but

nevertheless you must accord priority to my right to act wrongly (as you see it)”.

In order for the “must” in this sentence to be plausible—for it to be consistent

with treating the person to whom the sentence is spoken as a free and equal

member of our society—the right in question must be justified by appeal to

shared values or reasons that others can reasonably be expected to endorse.

Unless this condition of public justification is met, there would be nothing to

ground the priority of justice. If Albert’s act of φ-‐‑ing appears wrong when

viewed from within Betty’s religious or ethical doctrine, then he cannot require

her to respect his right to do wrong if the justification for that right is sectarian

and grounded in Albert’s religious or ethical doctrine that Betty reasonably

rejects. This would amount to Albert demanding Betty give priority to his

religious or ethical doctrine rather than her own reasonable doctrine.

The rules of social justice are meant to provide a fair set of terms by which

those with different plans and different religious and ethical views can interact

26

with one another in cooperative and mutually beneficial ways. If each person

must give priority to these rules over their own religious or ethical perspectives,

then the fairness of the rules depends on the rules being justifiable by appeal to

shared political values alone. If the rules of public justice did not meet this

condition—if they were grounded in some reasonably disputed religious or

ethical viewpoint—then some citizens would be required to give special priority

to the religious or ethical views of others, views which they reasonably reject.

This would not be a world where citizens stand as equals. This is what makes the

demands of justice special, and the appropriate focus of public justification.

Other moral demands—ones that do not have the special priority we

attach to the demands of justice—are different. As I suggested in the previous

section, we can criticize and blame others by appeal to what we take to be the

whole truth about religion or ethics, but we respect others as free and equal so

long as we also recognize that our beliefs about religious, ethical or philosophical

truth are subordinate to principles of social justice.

V

In closing, let’s examine a few objections to the preceding account of the role of

public reason.

First, consider two related worries about the scope of political authority

and public reason. One worry is that Justice offers an unduly narrow picture of

what our legal and political institutions may legitimately do. It might seem to

entail that the only permissible objective of the legislative and executive branches

of government is justice, and any policies designed to promote other objectives

are precluded. But this isn’t entailed by Justice: this view of public reason’s role is

compatible with a broader account of the role of government or political life, one

where the government pursues objectives apart from establishing and securing

27

justice (e.g. promoting artistic excellence, or increasing the funds available to

charitable causes beyond what justice requires). I endorse the view that the role

of government should be restricted to establishing and securing justice, but

further arguments are needed to establish this conclusion:24 it can’t be derived

from the narrower thesis that the exclusive role of public reason is to regulate our

debates and decisions about justice.

A second worry is that Justice yields a view about the scope of public

reason that is unduly narrow. Consider the recent Supreme Court ruling in Town

of Greece v. Galloway.25 In this case, the Court ruled that opening town board

meetings with public prayers did not violate the Constitution’s establishment

clause. Some constitutional scholars have endorsed this view, apparently

endorsing something like a close cousin of Coercion, whereby the establishment

clause only protects citizens from religious coercion by the state, but does not

prohibit religious expressions or affirmations by the state that are non-‐‑coercive.

But others worry that this interpretation of the establishment clause is far too

narrow: shouldn’t the state be prohibited from religious affirmations, even when

non-‐‑coercive?26 A similar worry might be pressed against Justice. Suppose the

federal government put up billboards declaring that Jesus is the Lord Our Savior.

This seems like something that an account of public reason ought to condemn,

but it might seem that Justice lacks the resources to do so. After all, surely

symbols or expressions are not the stuff of justice—justice concerns individual

rights and liberties, and the distribution of burdens and benefits.

24 I try to provide some of these further arguments in chapters 2-‐‑4 of my Liberalism Without Perfection (Oxford: Oxford University Press, 2011). 25 133 S.Ct. 2388 (2013). 26 For discussion of this case along these lines see Micah Schwartzman’s and Nelson Tebbe’s article in Slate, ‘A Prayer for Liberals’. http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/the_strange_liberal_argument_that_thin_skinned_religious_minorities_should.html

28

The appropriate response is to deny the premise that government symbols

and expressive acts never have anything to do with justice. First, there is the

trivial point that government resources spent on symbols or expressive acts

could be spent in other ways (e.g. programs to improve opportunities for the

least advantaged) and thus at least many instances of government expression do

raise issues of the rightful allocation of resources. Second, setting this first point

aside, government expression may often affect the distribution of advantages in

society, and so government expression may be an appropriate object of social

justice. Consider, for example, a society with a history of racial injustice and

segregation where equality of opportunity for members of the minority, the

Greens, has not yet been achieved. Suppose the government were to issue public

statements such as, “Greens are lazy and unmotivated,” or “Greens don’t yet

possess the intellectual ability to compete for the best jobs”. Such statements are

not merely racist; they are also unjust in light of the history of racial injustice in

our imagined society. Finally, individual citizens have a right, at the bar of

justice, to equal treatment under the law, and it’s not implausible to suppose this

right includes a claim that the government refrain from any acts of expression

that imply some members of society are worth less, or that the executive or legal

branches of government view their claims as having less weight. Whether any

particular instance of government expression—for example the public prayer at a

town board meeting—infringes this right to equal treatment seems dependent on

historical and other contextual details, but there’s no basis for holding that

government expression or symbolic acts are necessarily beyond the scope of

social justice.

Consider a third objection. As many critics of political liberalism and

public reason have pointed out, the fact of reasonable pluralism is not limited to

matters of religion and the good life: it extends to matters of justice as well.

29

Reasonable people—on any plausible definition of that term—disagree about

free speech, abortion rights, taxation policy, immigration reform, and affirmative

action, to name just a few examples. But if reasonable people disagree so deeply

about justice, it might seem implausible that the role of public reason could be to

regulate conceptions of social justice. Perhaps we should expect something more

minimal from an account of public reason.27 Perhaps public reason is only meant

to provide an account of the permissible limits of political authority, by which I

mean roughly an account of which directives the state has the moral right to

issue and enforce without wronging those subject to the directives. Reasonable

persons may not agree about exactly what justice requires, but perhaps they can

agree that laws are only legitimate when certain democratic procedures are

observed, and when the laws in question do not violate certain minimal moral

standards (e.g. the laws do not involve religious persecution, or racial or sexual

discrimination, etc…). On this alternative view, the role of public reason is not to

regulate the content of social justice, but rather to provide an account of political

legitimacy.

To evaluate this alternative view, we need to distinguish two different

ways public reason might be thought to contribute to an account of political

legitimacy. The first version begins with the following assumption: it is at least

presumptively wrong to restrict a person’s negative liberty without explicit or

tacit consent. But, as we all know, the state regularly uses coercion to restrict our

liberty and it does so even though the vast majority of us have never explicitly or

tacitly consented to these restrictions. How, then, can the state’s coercive power

be legitimate? This is the puzzle of political legitimacy as framed by 27 Some point to the fact of reasonable disagreement about justice to press a different objection, namely, that proponents of public reason posit an unjustifiable asymmetry between disagreement about justice and disagreements about the good life. I address this objection in chapter seven of Liberalism Without Perfection.

30

philosophical anarchists and voluntarists such as A. John Simmons. Some believe

the aim of public reason is to solve this puzzle: to reconcile the state’s coercive

power with the negative liberty of persons—to show this power can be legitimate

because it is power to which we would, at some level of idealization, consent.

But skeptics argue public reason cannot succeed in this task since what it

offers is nothing like genuine consent.28 In order to yield determinate results that

are morally acceptable, the constituency of persons to whom political principles

and rules are justified must be significantly idealized, to the point where it’s

implausible to suggest that public justification establishes anything

approximating the consent of real persons. But if the philosopher of public

reason avoids too much idealization, and sticks fairly closely to what the actual

persons believe when constructing an account of which principles and rules can

be publicly justified, it’s unlikely the account of public reason yields determinate

or morally acceptable rules. As Joseph Raz argues:

It seems tempting to say that our duty to act only on

political principles to which the reasonable consent is

simply the duty to act on well-‐‑founded, valid

principles. For that is what the reasonable consent to.

This eliminates the independent role of consent….The

puzzle is how one can give consent a viable role,

without saying that only principles already agreed to

by all can be relied on. One must find a reasonable

interpretation of the intuitively appealing idea that

political principles must be accessible to people as 28 David Enoch, ‘Against Public Reason,’ Oxford Studies in Political Philosophy: V. 1 (Oxford: Oxford University Press, 2015), 112-‐‑142.

31

they are…Politics must take people as they come and

be accessible to them, capable of commanding their

consent without expecting them to change in any

radical way. But at the same time, justified political

principles may be controversial, and may fail to

command actual consent. Nagel and Rawls offer

interpretations of this intuition which aim to be both

coherent and attractive. Their failure suggests that the

underlying idea may at bottom be unstable and

incoherent. There may be no middle way between

actual (including implied) agreement and rational

justification.29

But I think the force of this objection depends on the assumption that

public reason is trying to solve the puzzle of political legitimacy as framed by the

philosophical anarchist or voluntarist—that the goal is to use public reason as a

proxy for consent so as to reconcile the coercive power of the state with

individuals’ negative liberty. On my view, however, this is not public reason’s

role. Public reason is not a pale form of consent, intended to satisfy the

voluntarist’s worry about political legitimacy. Instead, public reason is a

condition on an acceptable conception of social justice. We cannot treat one

another justly unless decisions about justice are regulated by the standards set by

public reason. The point of public reason is to ensure that the rules that regulate

our interactions with others are reasonably fair or just, by ensuring the

29 Joseph Raz, ‘Facing Diversity: The Case of Epistemic Abstinence,’ Philosophy & Public Affairs 19 (1990), 46.

32

justifications for the rules of justice are mutually acceptable to suitably motivated

parties.

But this leads to the second way public reason, more indirectly,

contributes to an account of political legitimacy. Instead of following voluntarists

like Simmons, and assuming that actual consent (or something that mimics

consent) is needed to establish political legitimacy, we might adopt a different

view, one where legitimacy is grounded in the duties of justice we owe to one

another. This is, of course, a well-‐‑known approach whose contemporary

exponents include John Rawls, Jeremy Waldron, and Christopher Heath

Wellman. Here is one way of formulating the duty-‐‑based conception of legitimacy:

One way to establish that a person has legitimate authority over

another person involves showing that the alleged subject is likely

better to fulfill the duties of justice he is under if he accepts the

directives of the alleged authority as authoritatively binding and

tries to follow them, rather than by trying to directly fulfill the

duties he is under himself.30

I will not rehearse the arguments in favor of this view here.31 Instead, I want to

assume this view is correct, and explain how it can address the fact of reasonable

disagreement about justice.32

Consider the following simple view: the exercise of political power is only

legitimate when it is perfectly just, where “perfectly just” means just according to

your preferred account of social justice. If each person endorsed this view, this 30 From my Liberalism Without Perfection, 128. This principle is deliberately adapted from Raz’s influential normal justification thesis. 31 I offer a brief defense of the duty-‐‑based view in sect. 4.4 of Ibid. 32 The following is a condensed version of the argument I present in sect. 4.5 of Ibid.

33

would almost certainly have very bad consequences for promoting and securing

justice in our society. If each person believed laws were illegitimate unless they

conformed exactly with their own preferred conception of justice, then on many

issues no matter which particular policy the state enacted, most people would

view the policy as illegitimate, and this would presumably make effective state

action difficult, if not impossible. This will not be a good result from the

standpoint of justice. A world where we have an effectively enforced progressive

taxation policy that I believe to be unjust is nevertheless vastly superior from the

standpoint of justice to a world where there is no effective taxation policy at all

because any policy the state tries to enact is rejected as unjust and therefore

illegitimate by the majority of citizens.

But the duty-‐‑based account of legitimacy can offer a solution to this

problem. In a pluralistic society where reasonable people disagree about what

justice requires, we better fulfill our natural duty to promote and maintain just

institutions by accepting as legitimate any publicly justifiable views about justice

that all reasonable citizens could endorse as just even if there is in fact a great deal

of reasonable disagreement about what justice requires. We reasonably disagree,

suppose, about which policy from the set [P1, P2, P3, P4, P5] is required by

justice on some issue, but no one can reasonably deny that justice is better

promoted and maintained if some member of the set is chosen and effectively

implemented as opposed to any one of the obviously unjust alternative. This is

why one member of the set can be legitimately imposed even in the face if

reasonable disagreement about justice.

We now have in hand an explanation of the relationship between three

central concepts: public reason, justice, and political legitimacy. Public reason is a

constraint or condition on acceptable conceptions of social or public justice. Such

conceptions must be publicly justifiable to successfully serve as a framework of

34

binding rules that could be the basis of reasoned, informed, and willing

agreement amongst persons who reasonably disagree about religious, ethical,

and philosophical matters. There will be a plurality of publicly justifiable views

about social justice, any one of which might be the basis of legitimate political

authority, but political legitimacy is not derived directly from the idea of public

reason, rather it depends in addition on the duty-‐‑based conception of political

legitimacy. Notice that one might accept the justice-‐‑based view of public reason

while holding some alternative account of political legitimacy, and one might

accept the duty-‐‑based conception of legitimacy while rejecting the idea that

public reason is a constraint on acceptable conceptions of justice. My view is

distinctive in that I endorse both the duty-‐‑based view of legitimacy and the

justice-‐‑based view of public reason’s role.

To return to the original worry, once we abandon the assumption that

public reason is an effort to mimic the normative role of consent as conceived by

anarchists or voluntarists, it’s no longer any sort of objection to point out that

public justification fails to look like consent. Public reason is not meant to

establish that each individual somehow consents to the coercive authority of the

state. Rather, it’s an attempt to construct a shared social perspective from which

reasonable people can reason together about the fair terms that will regulate their

interactions and determine their rights and duties with regard to one another.