(1998). Liberal legitimacy, reasonable disagreement and justice. Critical Review of International Social and Political Philosophy: Vol. 1, Pluralsim and Liberal Neutrality, pp. 19-36. doi: 10.1080/13698239808403246.

This thesis is a critique of the prominent strand of contemporary liberal political theory which maintains that liberal political authority must, in some sense, rest on the free consent of those subjected to it, and that such a consensus is achieved if a polity’s basic structure can be publicly justified to its citizenry, or to a relevant subset of it. Call that the liberal legitimacy view. I argue that the liberal legitimacy view cannot provide (...) viable normative foundations for political authority, for the hypothetical consensus it envisages cannot be achieved and sustained without either arbitrarily excluding conspicuous sectors of the citizenry or commanding a consent that is less than free. That is because the liberal legitimacy view’s structure is one that requires a form of consent that carries free-standing normative force, yet the particular form of hypothetical consent through public justification envisaged by the view does not possess such force, because of its built-in bias in favour of liberalism. I also argue that the liberal legitimacy view is the most recent instantiation of one of two main strands of liberal theory, namely the nowadays dominant contract-based liberalism, which seeks to ground liberal political authority in a hypothetical agreement between the citizens. My case against the liberal legitimacy view, then, contributes to the revitalisation of the other main approach to the normative foundations of liberalism, namely the substantivist one, which legitimates liberal political authority through an appeal to the substantive values and virtues safeguarded and promoted by liberal polities. (shrink)

This thesis is an inquiry into the Liberal Principle of Legitimacy, formulated by John Rawls in his later writings. According to this principle, the exercise of political power is legitimate only if it is justifiable to all citizens. This view can be interpreted in different ways, and I argue that the presently most popular way of doing so faces serious problems. The aim is to identify and defend a more plausible version of the principle, which overcomes these problems, (...) and yet preserves the most essential and appealing features of the approach. Among the most central issues for how to interpret the principle are how to understand the notion of justifiability to a person, and who should be included in the group of persons referred to as "all citizens". On the currently received view, only justifiability to those who count as "reasonable" matter, and justifiability to these persons is understood in non-moral terms, as being determined by what is accessible to them, given the beliefs that they happen to hold. I argue that we have good reasons to reject both of these suggestions. We should instead spell out justifiability to a person in terms of what could be reasonably accepted in a moral sense, which allows us to retain the appealing idea that legitimacy is dependent on justifiability to all citizens over whom political power is exercised. I further suggest that we can use the original position – Rawls’s version of the social contract – to determine what is justifiable to all in this sense. I defend this suggestion against the expected objection that it will not be able to take reasonable pluralism – the assumption of deep disagreement between citizens – into account, by explaining why we should sharply distinguish this principle of political legitimacy from the theory of Political Liberalism. This distinction also contributes to my response to the objection, raised against this principle, that it is self-defeating. That my suggested interpretation allows us to convincingly respond to this line of criticism is yet another reason as to why it is preferable to the standard view. (shrink)

In a modern pluralist society, the idea of liberal legitimacy as proposed by John Rawls offers a promising foundation for the further historic advancement of democracy. However, liberal legitimacy still seems to lack one key element—a unique type of respect at its foundations—without which such democratic advancement may not be achieved. Nor, on closer inspection, could the idea of liberal legitimacy succeed without this particular type of respect. When further refined at its foundation, arguably (...) liberal legitimacy could open doors to previously unattainable improvements in democracy and legitimacy. (shrink)

The term “judicial restraint,” applied to courts engaged in judicial constitutional review, may refer to any one or more of three possible postures of such courts, which we here will distinguish as “quiescent,” “tolerant,” and “weak-form.” A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution’s name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonable sustainable, even though it independently would conclude (...) to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs. (shrink)

Reasonable people disagree deeply about the nature of the good life. But reasonable people also disagree fundamentally about principles of justice. If this is true, then why does political liberalism permit the state to act on reasons of justice, but not for reasons grounded in conceptions of the good life? There appears to be an indefensible asymmetry in the way political liberalism treats disagreements about justice and disagreements about the good life. This is the asymmetry objection to political liberalism. The (...) principal aim of this article is to show that the asymmetry objection can be refuted. This is done by drawing a distinction between two different types of reasonable disagreement that can occur between citizens. The first type is foundational disagreement . Disagreements of this type are characterized by the fact that the participants do not share any premises which can serve as a mutually acceptable standard of justification. The second type of disagreement, justificatory disagreement , occurs when participants do share premises that serve as a mutually acceptable standard of justification, but they nevertheless disagree about certain substantive conclusions. Making this distinction allows me to show why political liberalism’s asymmetric treatment of justice and the good life is both defensible and desirable. Key Words: John Rawls • perfectionism • political liberalism • public reason • reasonable pluralism. (shrink)

In recent years feminist philosophers have criticized mainstream liberal theory for ignoring issues of justice within the gender structured family and for failing to see how male privilege in this sphere works to deny women equality in economic and political life. Some argue that the source of this failure is liberalism's commitment to the distinction between domestic and public life, and the idea that the family is inherently a private institution to which standards of justice do not apply. In (...) Political Liberalism Rawls briefly acknowledges these concerns, andreassures his readers that within his theoretical framework 'the alleged difficulties in discussing problems of gender and the family can be overcome. To satisfy these critics Rawls would have to respond to Susan Okin's Justice, Gender, and the Family, which carefully examines both the shortcomings and feminist potential of his earlier writings. In Political Liberalism he does not. After his passing remark in the book's introduction, Rawls has nothing more to say on the subject. He assumes 'that in some form the family is just,' and focuses on the traditional issues of liberal political theory in the hope that this approach will 'at least provide guidelines for addressing further questions'. (shrink)

Pluralism frustrates liberalism's conception of legitimacy. The attempts by Rawls and Galston to preserve liberal legitimacy in light of pluralism are critically engaged, and found lacking. The paper closes with a sketch of an "agonistic" liberalism.

Xavier Landes | : In this article, consensus, defined as the consent of all citizens, is argued to be the first best for part of the liberal tradition on political legitimacy. Consensus would be the foundation of the liberal society that, when out of reach, needs to be approximated through, for instance, voting. I build on the timid attempts in political theory at using the theorem of the second best as a tool to settle difficult decision making (...) in applied political theory. More precisely, I defend the view that consensus would be the first best for part of the liberal tradition on political legitimacy. Furthermore, I illustrate how moral, factual, disagreements may create second-best problems, especially in terms of stability. Finally, I spell out some reasons why such problems directly affect a liberal order, on pragmatic grounds. The final purpose is to contribute to the literatures on legitimacy and on the application of the theorem of the second best outside economics. The key idea is to stress that much more work has to be done for “importing” the theorem of the second best into political theory. | : Dans cet article, le consensus, défini comme le consentement de tous les citoyens, est présenté comme remplissant la fonction d’optimum de premier rang [first best] pour une partie de la tradition libérale quant à la légitimité politique. Le consensus fonderait la société libérale qui, lorsque hors d’atteinte, nécessiterait d’être approximer au travers, par exemple, du vote. Je m’appuie sur les timides tentatives en théorie politique d’utiliser le théorème de l’optimum de second rang [second best] comme outil pour résoudre des prises de décision difficiles en théorie politique appliquée. Plus précisément, je défends l’idée que le consensus serait l’optimum de premier rang pour une partie de la tradition libérale quant à la légitimité politique. De plus, j’illustre comment les désaccords moraux, factuels peuvent créer des problèmes d’optimum de second rang, en particulier en termes de stabilité. Enfin, j’expose quelques raisons pour lesquelles de tels problèmes affectent directement un ordre libéral, d’un point de vue pragmatique. Le but final est de contribuer aux littératures sur la légitimité et sur l’application du théorème d’optimum de second rang à l’extérieur des sciences économiques. L’idée principale est de souligner qu’il reste beaucoup de travail afin d’« importer » le théorème d’optimum de second rang en théorie politique. (shrink)

A polity is grounded in a modus vivendi (MV) when its main features can be presented as the outcome of a virtually unrestricted bargaining process. Is MV compatible with the consensus-based account of liberal legitimacy, i.e. the view that political authority is well grounded only if the citizenry have in some sense freely consented to its exercise? I show that the attraction of MV for consensus theorists lies mainly in the thought that a MV can be presented as (...) legitimated through a realist account of public justification. Yet I argue that, because of persistent ethical diversity, that realism problematically conflicts with the liberal commitments that underpin the very ideas of consensus and public justification. Thus, despite the interest it has recently attracted from critics of political liberalism and deliberative democracy, MV is not an option for those wishing to ground liberal political authority in some form of consensus. So if realist and agonistic critiques are on target, then the fact that modus vivendi is not an option casts some serious doubt on the viability of the consensus view of liberal legitimacy. (shrink)

According to John Rawls’s famous Liberal Principle of Legitimacy, the exercise of political power is legitimate only if it is justifiable to all citizens. The currently dominant interpretation of what is justifiable to persons in this sense is an internalist one. On this view, what is justifiable to persons depends on their beliefs and commitments. In this paper I challenge this reading of Rawls’s principle, and instead suggest that it is most plausibly interpreted in externalist terms. On this (...) alternative view, what is justifiable to persons is not in any way dependent on, or relativized to, their beliefs and commitments. Instead, what is justifiable to all in the relevant sense is what all could accept as free and equal. I defend this reinterpretation of the view by showing how it is supported by Rawls’s account of the freedom and equality of persons. In addition, a considerable advantage of this suggestion is that it allows for an inclusive account of to whom the exercise of political power must be made justifiable. (shrink)

I argue against Rawls's claim that the liberal principle of legitimacy would be selected in the original position in addition to a democratic principle. Since a religious democracy could satisfy the democratic principle, the parties in the original position would not exclude it as illegitimate.

Very little attention has been paid towards examining John Rawls’s liberal principle of legitimacy as a self-standing theory. Nevertheless, it offers a highly original way of thinking about state legitimacy. In this paper, I will offer a sketch of what such an account might look like. At its heart is the idea that the legitimacy of the state resides not in the consent of the governed, nor in the state’s conformity with the appropriate principles of justice, (...) but rather in citizens’ endorsement of the state and its underlying constitutional principles on the basis of their own comprehensive conceptions of justice. Such an account offers a stable middle ground between popular alternatives, and has a way of not just solving, but dissolving, the problem of legitimacy. (shrink)

There is a little explored tension between the regulations called for by environmentalists and the predominant liberal political theory. The latter says that laws are only legitimate when publicly defensible to all who must follow them and thus does not support the state adoption of particular values. Environmental concerns frequently fall under the category of particular values. I explore ways that liberalism does in fact support environmental regulations as furthering universal rights and justice within and between generations. However, some (...) forms of environmental preservation are clearly government pursuits of particular values. I explore possible liberal justifications of publicly fostering environmental values and conclude by arguing for a deliberative democratic approach. (shrink)

There is a little explored tension between the regulations called for by environmentalists and the predominant liberal political theory. The latter says that laws are only legitimate when publicly defensible to all who must follow them and thus does not support the state adoption of particular values. Environmental concerns frequently fall under the category of particular values. I explore ways that liberalism does in fact support environmental regulations as furthering universal rights and justice within and between generations. However, some (...) forms of environmental preservation are clearly government pursuits of particular values. I explore possible liberal justifications of publicly fostering environmental values and conclude by arguing for a deliberative democratic approach. (shrink)

One way to characterise the difference between analytic and Continental political philosophy concerns the different roles played by normative and descriptive analysis in each case. This article argues that, even though Michel Foucault’s genealogy of liberal and neoliberal governmentality and John Rawls’s political liberalism involve different articulations of normative and descriptive concerns, they are complementary rather than antithetical to one another. The argument is developed in three stages: first, by suggesting that Foucault offers a way to conceive of public (...) reason as a historical phenomenon. Second, it is suggested that both Rawls and Foucault allow us to consider rights as historical and particular rather than a-historical and universal. Third, it is argued that Foucault’s genealogy of modern liberal government illuminates some of the tensions and some of the alternatives within the liberal tradition in relation to the concept of political legitimacy. (shrink)

This article explores and critiques the relationship between justice and legitimacy in contemporary liberal thought. The first half sets out the extent to which liberalism demands the same necessary and sufficient conditions of justice and legitimacy, and in doing so obscures their evaluative distinctiveness. It then offers an interpretation of the deeper theoretical assumptions that result in this unsatisfactory conflation, arguing that the primacy that liberal theory has given to justice, understood as a moral concept, has (...) resulted in a failure to appreciate the deeply multifaceted political nature of legitimacy. The suggestion is then made that it is only through recognizing this nature, including the different circumstances in which the demand for legitimation arises and the needs to which it responds, that this theoretical impasse can be overcome. The article ends on the more radical thought that this may require liberal theory to displace justice as the first virtue of political systems and replace it with the virtue of legitimacy. (shrink)

At the center of Rawls’s work post-1980 is the question of how legitimate coercive state action is possible in a liberal democracy under conditions of reasonable disagreement. And at the heart of Rawls’s answer to this question is his liberal principle of legitimacy. In this paper I argue that once we attend carefully to the depth and range of reasonable disagreement, Rawls’s liberal principle of legitimacy turns out to be either wildly utopian or simply toothless, (...) depending on how one reads the ideal of reciprocity it is meant to embody. To remedy this defect in Rawls’s theory, I␣undertake to develop the outlines of a democratic conception of legitimacy, drawing first on Rawls’s generic conception of legitimacy in The Law of Peoples and second on a revised understanding of reciprocity between free and equal citizens. On this revised understanding, what free and equal citizens owe one another is not reciprocity in judgment, but reciprocity of interests. (shrink)

Modern society is challenged by a loss of efficiency in national governance systems values, and lifestyles. Corporate social responsibility (CSR) discourse builds upon a conception of organizational legitimacy that does not appropriately reflect these changes. The problems arise from the a-political role of the corporation in the concepts of cognitive and pragmatic legitimacy, which are based on compliance to national law and on relatively homogeneous and stable societal expectations on the one hand and widely accepted rhetoric assuming that (...) all members of society benefit from capitalist production on the other. We therefore propose a fundamental shift to moral legitimacy, from an output and power oriented approach to an input related and discursive concept of legitimacy. This shift creates a new basis of legitimacy and involves organizations in processes of active justification vis-à-vis society rather than simply responding to the demands of powerful groups. We consider this a step towards the politicization of the corporation and attempt to re-embed the debate on corporate legitimacy into its broader context of political theory, while reflecting the recent turn from a liberal to a deliberative concept of democracy. (shrink)

Ideally, should liberals in a pluralistic society be able to agree to abide by a common legal system such that all their disputes are resolved without resort to illegal force? Rawls believes the answer is “yes.” I explain and defend his answer, but I also conclude, focusing on the example of abortion, that the truth is “not necessarily, not always.” Rawls’s conceptions of reasonable citizens and public reason help explain why there is a strong prima facie duty to forswear illegal (...) force. It is based on the duty to respect others, which requires that one be able to justify one's actions to them insofar as they are reasonable and matters of basic justice are at issue. One cannot justify using illegal force to those who reasonably think a law is just; to them it is a form of disrespect. Nonetheless, if one reasonably thinks that a fundamental injustice is tolerated or even established by the law, then one may be no less reasonable than one has reason to be if one uses illegal force, sacrificing this form of respect to right a greater wrong. (shrink)

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. (shrink)

This chapter presents a critical assessment of Rawls's rejection of perfectionist politics. It advances both a negative and a constructive thesis. The negative thesis targets Rawls's account of political legitimacy. The constructive thesis contends that there are resources within Rawls's own theory of justice for vindicating state perfectionism. A key part of the constructive thesis appeals to what Rawls terms as the Aristotelian Principle (AP). A legitimate society is a society that satisfies a general test, one that is articulated (...) by Rawls's liberal principle of legitimacy. Rawls noted that the exclusion of perfectionist considerations from justice might prove on reflection to be unacceptable. Rawls's endorsement of the AP provides a footing for a form of state perfectionism that can strengthen the overall case for Rawlsian justice by enabling it to respond to the criticism that it is insufficiently responsive to the claims of human excellence. (shrink)

This paper examines the differences between moralist, realist, and pragmatist approaches to political legitimacy by articulating their largely implicit views of judgment. Three claims are advanced. First, the salient opposition among approaches to legitimacy is not between “moralism” and “realism.” Recent realist proposals for rethinking legitimacy share with moralist views a distinctive form, called “normativism”: a quest for knowledge of principles that solve the question of legitimacy. This assumes that judging legitimacy is a matter of (...) applying such principles to a case at hand. Second, neither Rawls nor Habermas is a normativist about political legitimacy. The principles of legitimacy they proffer claim to express rather than adjudicate the legitimacy of a liberal-democratic regime, and thus cannot solve the question of legitimacy at a fundamental level. But perhaps we should question the normativist aspiration to theoretically resolving the problem to begin with. My third claim is that a “pragmatist” approach enables us to rethink political legitimacy more deeply by shifting focus from the articulation of principles to the activity of judging. Implicit in Rawls’s and Habermas’s theories I then find clues towards an alternative account of judgment, in which the question of legitimacy calls not for theoretical resolution but for ongoing practical engagement. (shrink)

Fifteen years ago, Peter Singer published Animal Liberation: A New Ethics for Our Treatment of Animals. In it, he proposed to end “the tyranny of humans over nonhuman animals” by “thinking through, carefully, and consistently, the question of how we ought to treat animals” (p. ix). On this anniversary of the book's publication, a critical analysis shows that the logic he presents, though popularly appealing, is philosophically flawed. Though influential in slowing and in some cases stopping biomedical research involving animals, (...) the animal rights movement in the United States has yet to offer a clear and compelling argument for the equlity of species. (shrink)

In this paper I analyze the theory of legitimacy at the core of John Rawls’ political liberalism. Rawls argues that a political system is well grounded when it is stable. This notion of stability embodies both pragmatic and moral elements, each of which constitutes a key desideratum of Rawlsian liberal legitimacy. But those desiderata are in tension with each other. My main claim is that Rawls’ strategy to overcome that tension through his theory of public justification is (...) ultimately unsuccessful, because the account of consensus it envisages is unstably placed between the extremes of moralized redundancy and pragmatic free-for-all. In other words, what counts as consensus is either regulated too tightly, or not enough. -/- . (shrink)

The purpose of this article is to consider the question of whether democratic legitimacy requires viewpoint neutrality with regard to political speech – including extremist political speech, such as hate speech. The starting point of my discussion is Jeremy Waldron’s negative answer to this question. He argues that it is permissible for liberal democracies to ban certain extremist viewpoints – such as vituperative hate speech – because such viewpoint-based restrictions protect the dignity of persons and a social and (...) moral environment of mutual respect. According to Waldron, well-drafted narrow hate speech bans are not democratically illegitimate, and they do not undermine systemic democratic legitimacy – that is, the legitimacy of a democratic political system. In contrast to Waldron, I will argue that democratic legitimacy requires viewpoint neutrality to respect persons as thinking agents. I will defend a civil libertarian doctrine of viewpoint neutrality, and this doctrine requires that citizens in liberal democracies ought to have a legal free speech right to do moral wrong – that is, a legal right to express and defend any political viewpoint or idea, even if it is morally wrong to express, or expose others to, such views. It will be argued that any viewpoint-based restriction on public discourse is democratically illegitimate, and that such restrictions undermine systemic democratic legitimacy. (shrink)

What is it for a state, constitution or set of governmental institutions to have political legitimacy? This paper raises some doubts about two broadly liberal answers to this question, which can be labelled ?Kantian? and ?libertarian?. The argument focuses in particular on the relationship between legitimacy and principles of justice and on the place of consent. By contrast with these views, I suggest that, without endorsing the kind of voluntarist theory, according to which political legitimacy is (...) simply created by individual consent, an adequate understanding of political legitimacy should take much more account than most philosophical theories tend to do of the attitudes and beliefs of citizens and the social and political context in which they have saliency. This also involves acknowledging the limits of theory in determining criteria of political legitimacy. (shrink)

This article sets out some of the key features of a realist critique of liberal moralism, identifying descriptive inadequacy and normative irrelevance as the two fundamental lines of criticism. It then sketches an outline of a political theory of modus vivendi as an alternative, realist approach to political theory. On this account a modus vivendi should be understood as any political settlement that involves the preservation of peace and security and is generally acceptable to those who are party to (...) it. In conclusion, some problems with this conception of modus vivendi and with a realist political theory more generally are discussed. In particular, the question is raised of whether a realist political theory should be understood as an alternative to liberal moralism or only a better way of doing basically the same kind of thing. (shrink)

The two leading traditions of theorizing about democratic legitimacy are liberalism and deliberative democracy. Liberals typically claim that legitimacy consists in the consent of the governed, while deliberative democrats typically claim that legitimacy consists in the soundness of political procedures. Despite this difference, both traditions see the need for legitimacy as arising from the coercive enforcement of law and regard legitimacy as necessary for law to have normative authority. While I endorse the broad aims of (...) these two traditions, I believe they both misunderstand the nature of legitimacy. In this essay I argue that the legitimacy of a law is neither necessary nor sufficient for its normative authority, and I argue further that the need for legitimacy in law arises regardless of whether the law is coercively enforced. I thus articulate a new understanding of the legitimacy and authority of law. (shrink)

In liberal political philosophy, a prevalent view holds that groups are typically voluntary associations. Members of voluntary associations can accept, revise or reject group practices as a matter of choice. In this article, I challenge this view. Appealing to the concept of joint commitment developed in philosophy of social science, I argue that individuals who jointly commit their wills to a goal or a belief form a ‘We’-group. Members of ‘We’-groups are under an obligation to defer to ‘Our’ will (...) embodied in ‘Our’ norms as a matter of course. I further show the ubiquity of We-groups. This joint commitment account of group authority raises a much-overlooked question of group legitimacy: Do members have good reasons to obey norms of their group? I show that state-centric views of legitimacy are inapt to answer it. A group-centric view, revived from the old communitarian literature, is defended. (shrink)

My text offers an attempt to justify theoretically the existence of an important pillar of contemporary constitutional democracy: judicial review. Why do Supreme and Constitutional Courts that are not electorally accountable organs have the power to modify and occasionally cancel from the books statutory legislation passed by elected and accountable representatives? The argument presented discusses and questions the standard doctrine of the separation of powers and is based on the foundations of modern political authority as the agency the function of (...) which is to protect and guarantee citizens’ rights. (shrink)

Debates between political liberals and liberal perfectionists have been reinvigorated by Jonathan Quong’s Liberalism Without Perfection. In this paper I argue that certain forms of perfectionism can rebut or evade Quong’s three central objections – that perfectionism is manipulative, paternalistic, and illegitimate. I then argue that perfectionists can defend an ‘internal conception’ of perfectionism, parallel in structure to Quong’s ’internal conception’ of political liberalism, but with a different conception of the justificatory constituency. None of Quong’s arguments show that his (...) view should be preferred to this perfectionist internal conception. It can thus equally claim to achieve ‘justification to all reasonable citizens’. (shrink)