Abstract
Public justification-based accounts of liberal legitimacy rely on the idea that a polity’s basic structure should, in some sense, be acceptable to its citizens. In this paper I discuss the prospects of that approach through the lens of Gerald Gaus’ critique of John Rawls’ paradigmatic account of democratic public justification. I argue that Gaus does succeed in pointing out some significant problems for Rawls’ political liberalism; yet his alternative, justificatory liberalism, is not voluntaristic enough to satisfy the desiderata of a genuinely democratic theory of public justification. So I contend that—pace Gaus, but also Rawls—rather than simply amending political liberalism, the claims of justificatory liberalism bring out fatal tensions between the desiderata of any theory of liberal-democratic legitimacy through public justification.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
I use ‘public reason’ and ‘public justification’ interchangeably unless otherwise specified. One may however distinguish between the two by saying that public reason is the means to public justification.
The idea of public justification has been pioneered by Rawls (1994, 2001a, b), Nagel (1987), Macedo (1990), and others. More sophisticated theories of public reason have been put forward by D’Agostino (1996), Gaus (1996), and MacGilvray (2004). Also see D’Agostino and Gaus’ (1998) edited anthology on public reason.
Here I will not engage directly with the arguments of Gaus’ (2010c) most recent book, as that work concerns ‘social morality’ rather than the narrower issue of liberal legitimacy.
I use ‘consent’ in order to range over the contractualism–contractarianism debate.
The consent-based versus substantivist liberalism distinction is of course related, but not equivalent to the familiar distinctions between perfectionist and neutralistic, teleological and deontological liberalism.
I use ‘non-relational’ rather than the more controversial ‘intrinsic’, following Weatherson (2008, section 2.1), who also shows how relationality is a property of concepts, rather than of properties. So when consent theorists and substantivists disagree about whether a polity is legitimate they do not disagree about whether that polity has a certain property: the disagreement is about what (the concept of) legitimacy amounts to.
Also see the relevant discussion in the next section.
As shall become clearer below, even though Gaus' public justification requirement applies to coercive state action directly rather than to reasons used in public debate (as in Rawls' theory), Gaus' view remains less voluntaristic than Rawls' in light of that deliberative reading of political liberalism.
Any issues to do with the distinction between acting from a reason and acting in accordance with a reason are addressed by Rawls’ idea of the overlapping consensus (Rawls 1994, p. 39ff), which cannot be discussed in any detail here.
One may point out that my distinction between acceptability and voluntariness depends on a form of internalism about reasons. Clearly the externalism–internalism debate cannot be tackled here. Note, however, that the internalist position is less controversial in this context, insofar as externalism is usually associated with 'thick' conceptions of morality of the sort that Rawls would rule out as comprehensive doctrines.
See Gaus (1999, p. 274). The guiding ideas he lists are: (1) the fact that Respect for citizens’ freedom and equality requires public justifiability of political authority, (2) the persistence of reasonable disagreement among citizens about both ordinary politics and constitutional essentials, and (3) the unsuitability for public justification of beliefs and considerations that are subject to reasonable disagreement.
Gaus (1996, p. 3). However, as we shall see below, Gaus’ account of publicity actually relies on accessibility rather than acceptability.
Very briefly, Gaus’ third main argument persuasively proceeds from the idea that, pace Rawls, pluralism extends to the domain of the political: there is no agreement on what constitutes the sphere of application of the various competing political conceptions of justice, as each conception of justice may carry with itself a specific account of the nature of ‘the political’. And with no agreement on the scope of political conceptions of justice Rawls’ envisaged hypothetical deliberation procedure cannot take place. See Gaus (1997, 1999).
And for Rawls having this aim is essentially what it means to be reasonable (Rawls 1994, p. 62).
One may put this point in a slightly different way and say that Gaus' theory would maintain the same substantive standards of legitimacy even if he dropped the language of acceptability.
Gaus’ argument is much more complex than this. However, since it is not my intention to question any of it steps, but rather to judge what the impact of its conclusions is, it will not be necessary to illustrate it in much detail.
However, as envisaged by Rawls’ idea of the overlapping consent, the publicly justified political conception of justice will still be justifiable from within those citizens’ conception of the good.
It is not clear that prioritising the pursuit of fair terms of cooperation requires the separateness of the political, which Gaus cogently rejects (as noted earlier): to engage in the pursuit of those terms there is no need for an agreement on the sphere they should regulate.
Gaus (1996, p. 136): ‘Rawls is very clear that his aim is to articulate an understanding of public justification that induces stability, because citizens actually appreciate the inferences.’
Rawls says: “Being reasonable is not an epistemological idea (though it has epistemological elements). Rather, it is part of a political idea of democratic citizenship” (Rawls 1994, p. 62). In other words, Rawlsian reasonableness is primarily a moral notion.
Pace Bohman and Richardson (2009, p. 254).
Rawls adds: ‘Principles are to be rejected that might work quite well provided they were not publicly acknowledged, or provided the general facts upon which they are founded are not commonly known or believed’ (Rawls 1994, p. 69).
One may point out that accessibility allows the citizens to see that some effort is being made to justify coercion to them. But it is not clear how that would be enough to carry out the reconciling function, as one could meet that demand simply by disingenuously offering any accessible argument, regardless of its manifest implausibility.
That is why, as anticipated in the first section, the argument against the consent view of public justification advanced by Bohman and Richardson (2009) applies to Gaus’ view, but not to Rawls’.
Also see the discussion of autonomy in Gaus (2010b).
There is, of course, the familiar argument that all hypothetical consent theories really are just substantive theories in disguise, in so far as they smuggle some substantive normative commitments in the antecedent of the conditional expressing the consent relationship. However my point here is just that some accounts of hypothetical consent are more voluntaristic than others, at least in principle.
An earlier (Summer 2003) edition of that article, authored by D’Agostino only, was more open-ended on this point and noted the difficulty of understanding exactly in what sense public justification makes something ‘the object of an agreement’). See also Gaus (2009).
That refers to Political Liberalism, where Rawls envisages a genuine consent. The argument from the original position in A Theory of Justice was purely rationalistic, and thus more Kantian.
I develop this line of argument in Rossi (forthcoming 2014). Quong (2011, pp. 137–139) defends political liberalism from that charge by arguing that we should read political liberalism as an argument addressed at liberals, in which case the sort of circularity I refer to shouldn't be considered vicious. Exploring this issue is beyond the remit of this paper; however, while I agree with Quong that a theory of liberal self-understanding has a useful role to play as regards the exploration of political possibility, it also seems worth noting that limiting the appeal of a theory of liberal legitimacy to liberals would be a significant concession to liberalism's enemies.
This paper originates from my PhD research, which was supported by an AHRC doctoral award. I also wish to thank my supervisors, John Skorupski and Rowan Cruft, as well as my examiners, Tim Mugan and Leif Wenar, for their helpful feedback. I should also like to thank audiences at LUISS University in Rome and Central European University in Budapest, as well as Andres Moles, Zoltan Miklosi, and an anonymous referee.
References
Bohman, James, and Henry S. Richardson. 2009. Liberalism, deliberative democracy, and “reasons that all can accept”. Journal of Political Philosophy 17: 253–274.
Ceva, Emanuela. 2009. Just procedures with controversial outcomes. Res Publica 15: 219–235.
D’Agostino, Fred. 1996. Free public reason: Making it up as we go. Oxford: Oxford University Press.
D’Agostino, Fred, and Gerald F. Gaus (eds.). 1998. Public reason. Aldershot: Ashgate/Dartmouth.
D’Agostino, Fred and Gaus, Gerald F. 2008. Contemporary approaches to the social contract’, Stanford Encyclopedia of Philosophy (Winter 2008 Edition), ed. Edward N. Zalta. http://plato.stanford.edu/archives/win2008/entries/contractarianism-contemporary/.
Gaus, Gerald F. 1995. The rational, the reasonable, and justification. Journal of Political Philosophy 3: 234–258.
Gaus, Gerald F. 1996. Justificatory liberalism: An essay on epistemology and political theory. Oxford: Oxford University Press.
Gaus, Gerald F. 1997. Reason, justification and consent: Why democracy can’t have it all. In Deliberative democracy, ed. James Bohman, and William Rehg, 205–242. Cambridge, MA: MIT Press.
Gaus, Gerald F. 1999. Reasonable pluralism and the domain of the political: How the weaknesses of John Rawls’ political liberalism can be overcome by a justificatory liberalism. Inquiry 42: 259–284.
Gaus, Gerald F. 2003a. Contemporary theories of liberalism: Pubic reason as a post-Enlightenment project. London: Sage.
Gaus, Gerald F. 2003b. Liberal neutrality about the good: A compelling and radical principle. In Perfectionism and neutrality, ed. George Klosko, and Steven Wall, 137–165. Lanham, MD: Rowman & Littlefield.
Gaus, Gerald F. 2005. The place of autonomy within liberalism. In Autonomy and the Challenges to Liberalism, ed. P. Christman, and J. Anderson. Cambridge: Cambridge University Press.
Gaus, Gerald F. 2007. On justifying the moral rights of the moderns. Social Philosophy and Policy 24: 84–119.
Gaus, Gerald F. 2009. Recognized rights as devices of public reason. Philosophical Perspectives 23: 111–136.
Gaus, Gerald F., and Kevin Vallier. 2009. The roles of religious conviction in a publicly justified polity. Philosophy and Social Criticism 35: 51–76.
Gaus, Gerald F. 2010a. Coercion, ownership, and the redistributive state: Justificatory liberalism’s classical tilt. Social Philosophy and Policy 27: 233–275.
Gaus, Gerald F. 2010b. On two critics of justificatory liberalism. Politics, Philosophy and Economics 9: 177–212.
Gaus, Gerald F. 2010c. The order of public reason: A theory of freedom and morality in a diverse and bounded world. Cambridge: Cambridge University Press.
Geuss, Raymond. 2005. Outside ethics. Princeton: Princeton University Press.
Macedo, Stephen. 1990. The politics of justification. Political Theory 18: 280–304.
MacGilvray, Eric. 2004. Reconstructing public reason. Cambridge, MA: Harvard University Press.
Nagel, Thomas. 1987. Moral conflict and political legitimacy. Philosophy & Public Affairs 16: 215–240.
Nagel, Thomas. 1991. Equality and partiality. Oxford: Oxford University Press.
Quong, Jonathan. 2011. Liberalism without perfection. Oxford: Oxford University Press.
Rawls, John. 1994. Political liberalism, 2nd ed. New York: Columbia University Press.
Rawls, John. 2001a. The domain of the political and overlapping consensus. In Collected papers, ed. Samuel Freeman, 473–496. Cambridge, MA: Harvard University Press.
Rawls, John. 2001b. The idea of public reason revisited. In Collected papers, ed. Samuel Freeman, 573–615. Cambridge, MA: Harvard University Press.
Raz, Joseph. 1994. Ethics in the public domain. Oxford: Oxford University Press.
Rossi, Enzo. 2009. The exemption that confirms the rule: Reflections on proceduralism and the UK hybrid embryos controversy. Res Publica 15: 237–250.
Rossi, Enzo. 2014. Liberalism: philosophy, ideology and politics. London: Bloomsbury. (Forthcoming).
Wall, Steven. 2002. Is public justification self-defeating?’. American Philosophical Quarterly 39: 385–393.
Weatherson, Brian. 2008. Intrinsic vs. extrinsic properties. The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), ed. Edward N. Zalta. http://plato.stanford.edu/archives/fall2008/entries/intrinsic-extrinsic/.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Rossi, E. Legitimacy, Democracy and Public Justification: Rawls’ Political Liberalism Versus Gaus’ Justificatory Liberalism. Res Publica 20, 9–25 (2014). https://doi.org/10.1007/s11158-013-9223-9
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11158-013-9223-9