Recognized rights as devices of public reason

Philosophical Perspectives 23 (1):111-136 (2009)
Abstract
My concern in this essay is a family of liberal theories that I shall call “public reason liberalism,” which arose out of the social contract theories of Hobbes, Locke and Rousseau. These social contract accounts stressed that the justification of the state depended on showing that everyone would, in some way, consent to it. However, by relying on consent, social contract theory seemed to suppose a voluntarist conception of political obligation and authority: I am only bound by political authority if I choose to be bound.1 Only in Kant, I think, does it become clear that consent is not fundamental to a social contract view: Kant insists that we have a duty to agree to act according to the idea of the “original contract.”2 Rawls’s revival of the social contract tradition in A Theory of Justice also made no important appeal to consent, though the apparatus of an “original agreement” of sorts persisted. The aim of the original position, Rawls announced, is to settle “the question of justification…by working out a problem of deliberation.”3 As the question of public justification takes center stage (we might say as contractualist liberalism becomes justificatory liberalism), it becomes clear that posing the problem of justification in terms of a deliberative or a bargaining problem is simply a heuristic: the real issue is “the problem of justification”4 — what principles can be justified to all reasonable persons
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