Reason & Epistemic Normativity in a Liberal Democracy: A Defense of Rawls’s Consensus Model of Public Reason

                REASON  &  EPISTEMIC  NORMATIVITY  IN  A  LIBERAL  DEMOCRACY     A  DEFENSE  OF  RAWLS’S  CONSENSUS  MODEL  OF  PUBLIC  REASON                                                                   ©  Jake  de  Backer,  2015.  

Reason & Epistemic Normativity in a Liberal Democracy A Defense of Rawls’s Consensus Model of Public Reason §0. Setting the Stage §0.1. Organization & Paper Structure §1. The Dimensions of Public Reason §1.1. The Subject of Public Reason §1.2. The Content of Public Reason §1.2.1. Preliminaries to The Content of Public Reason: A Political Conception of Justice §1.2.2. Political Doctrines vs. Comprehensive Doctrines §1.2.3. The Content of Public Reason

§1.3. The Site of Public Reason §1.4. The Dimensions of Public Reason: Auxiliary Concepts §1.4.1. Reasonable Pluralism & The Burdens of Judgment §1.4.2. The Liberal Principle of Legitimacy

§2. Convergence vs. Consensus: A Comparative Analysis §2.1. The Consensus Model of Public Reason & The Shareability Criterion §2.1.1. Shareability as the Key Epistemic Property of Public Reasons §2.1.2. Deriving Shareability & Consensus from Core Concepts & Doctrines of Political Liberalism

§2.2. The Convergence Model of Public Reason & The Intelligibility Criterion §2.2.1. Intelligibility as the Key Epistemic Property of Public Reasons §2.2.2. Asymmetry, Convergence, & Reasons as Defeaters: An Analysis of Key Concepts §2.2.3. Respecting Pluralism & Respecting Liberty: The Main Arguments for the AC-M

§3. Vallier’s Arguments for Asymmetric Convergence & The Use of Reasons as Defeaters: A Critical Evaluation §3.1. Basic Desiderata for Assigning Priority to Incompatible Models of Public Reason §3.2. Requiring Religious Restraint & The Integrity Objection in Public Justification §3.3. Does the Fact of Reasonable Pluralism Imply a Presumption for Less Restrictive Conceptions of Reasons? §3.4. The Case Against Religious Reasons as Defeaters in Nonideal Contexts: The Role of Public Reason in The Hobby Lobby Case §4. Public Reason and the Preservation of Stability: Concluding Remarks

  §0. Setting the Stage Public reason liberalism is an umbrella term under which several, often conflicting, doctrines of liberalism take shelter. Rawls’s political liberalism, offering paradigmatic treatment of public reason, has been subjected to countless critiques during its development over the past several years. One critic in particular, Kevin Vallier, has been especially critical of the normative demands imposed by Rawls’s consensus model of public reason (Cs-M), which requires that citizens conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal also might reasonably be expected reasonably to endorse. 1

Accordingly, religious citizens are unable to appeal to privately held beliefs as ultimate 2

justifications in either endorsing or criticizing legislation and public policy. Vallier claims that this will require the suppression of a dimension of their identities, constituting a (1) violation of the integrity and resulting in (2) the exclusion of religious citizens from the public political forum. Vallier has supplemented his criticisms with an alternative model of public reason. 3

According to Vallier, subscribers to public reason, especially those sharing or sympathizing with the commitments of religious citizens, will find their liberal values enjoying better accommodations with his asymmetric convergence model of public reason (AC-M). This                                                                                                                 1

John Rawls. Political Liberalism, Expanded Edition. New York: Columbia University Press, 2005. Intro, xlviii; cf. Ibid., pp. 226, 241 (All references to PL are to the Expanded Edition) 2 For present purposes, I will be adopting an exclusive model of public reason, in which privately held reasons are excluded from all matters of political justification. Rawls’s later incarnations of public reason, however, contained what he referred to as the proviso, which stipulates that nonpublic reasons could be cited given that public reasons were provided at some later date. For more on the proviso, see John Rawls. “The Idea of Public Reason Revisited,” §4.1. 3 I will be consolidating some of the salient features of (1) and (2) and, under the banner of the Integrity Objection, will be discussing and responding to Vallier’s related concerns in §3.2. For more on both see: Kevin Vallier. “Convergence and Consensus in Public Reason.” Public Affairs Quarterly, 25.4 (2011): 261-79. p. 262; Gerald Gaus and Kevin Vallier. “The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry and Political Institutions.” Philosophy & Social Criticism, 35.1-2 (2009): 51-76. p. 62

 

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  requires not that reasons be shared but rather that they be intelligible such that these reasons converge upon various policy prescriptions. I will offer a battery of (counter)arguments against 1) intelligibility as a sufficiently normative criterion for legitimating reasons in political discourse, 2) Vallier’s claim that AC-M is preferable to Cs-M as a model of public reason liberalism, and that 3) religious reasons should be advanced and accepted as defeaters in political justification. §0.1. Organization and Paper Structure §1 will begin by considering the framework of public reason (and several distinct but related concepts) as outlined by Rawls. Here, I will taxonomize public reason by considering each of its constituent features in terms of its dimensions, that is, its subject, structure, constituency, site, and content. §2 will provide a comparative analysis of Vallier’s AC-M of 4

public reason, as well as its intelligibility criterion, and Rawls’s Cs-M with its shareability criterion. Having concluded the expository groundwork in §§1-2, I will advance in §3 several of my own criticisms of Vallier’s arguments concerning 1) the purported superiority of his AC-M and 2) the licensing of privately held beliefs as defeaters in political justification. My paper will conclude with §4, where I will argue that in light of §3’s criticisms, it is Rawls’ Cs-M of public reason which will 1) best stabilize a society characterized by reasonable pluralism and 2) bring us ultimately into closer fidelity with our core commitments as political liberals. §1. The Dimensions of Public Reason §1.1. The Subject of Public Reason

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Carving up public reason into these dimensions: Jonathan Quong. “On the Idea of Public Reason.” A Companion to Rawls: Blackwell Companions to Philosophy, edited by Jon Mandle and David A. Reidy, 265-80. Malden, MA: John Wiley & Sons, 2014. pp. 266-9, §§1.1-1.3

 

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  For Rawls, political power is cashed out in terms of coercive force. Rawls argues that the 5

state’s exercise of coercive power is just only insofar as “it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” For Rawls, then, the 6

subject of public reason is circumscribed to (1) Constitutional Essentials and (2) Matters of Basic Justice. Constitutional Essentials are further distinguished between “(a) [specifying] the general structure of government and the political process and the essentials under (b) which [there is further specification as to] the equal basic rights and liberties of citizens.” Matters of Basic 7

Justice concern the standards and principles according to which “important goods such as income, wealth, opportunities, and positions of power that are not already covered by the constitutional essentials” are distributed. Rawls’s circumscribed model of public reason does not 8

take nonessential political issues, e.g., endowments for the arts, as “forming part of the subject matter of public reason.”

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§1.2. The Content of Public Reason (and Related Concepts) §1.2.1. Preliminaries to the Content of Public Reason: A Political Conception of Justice Central to Rawls’s model of public reason as a theory of political justification is his Political Conception of Justice (PCJ). Rawls endows a PCJ with three basic components: A PCJ                                                                                                                 5

Many public reason liberals have argued that public reason derives its normative force from (1) considerations of respect for persons as free and equal citizens (Colin Bird), and (2) grounded in the value of justice (J. Quong). These scholars maintain that even in the absence of coercion it is still only public reasons that should be offered in political discourse. cf. Colin Bird. “Coercion and Public Justification.” Politics, Philosophy & Economics 13 (2014): 189214; Andrew Lister. “Respect for Persons as a Constraint on Coercion.” Public Reason & Political Community. London: Bloomsbury, 2014; Jonathan Quong. “On the Idea of Public Reason.” §2.2. 6 John Rawls. Political Liberalism, p. 217 7 John Rawls. Political Liberalism, p. 228 8 Jonathan Quong. “On the Idea of Public Reason,” p. 266 9 Jonathan Quong. “On the Idea of Public Reason,” p. 266; cf. John Rawls, Political Liberalism, p. 214

 

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  (1) applies only to the institutions comprising the domain of the political, where citizen compliance is both (a) non-voluntary and (b) coercively enforced; (2) is given as freestanding, insofar as it neither privileges nor relies for its support upon any particular comprehensive 10

doctrines;

and (3) is developed from materials and ideas found within the public political

culture of a liberal society. This third component explains, critically, how a PCJ can be substantive without importing ideas or depending on content from comprehensive doctrines. Conceptual resources are derived not from privately held ideologies, but rather from the shared culture, that is, “[cognitively] accessible reasons drawn from…observation, common sense, 11

thought experiments, and the natural, social, [and formal] sciences.”

The principles operating

within a PCJ “provide the normative framework to which citizens can appeal when debating and voting on constitutional essentials and matters of basic justice.”

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§1.2.2. Political Conception of Justice vs. Comprehensive Doctrines In carving out the contours of a PCJ, it will be helpful to define it in relation to comprehensive doctrines. The latter of which comprises a network of beliefs concerning “what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole.” Illustrating the contrast between doctrines of this variety from those 13

that are merely political reduces to a matter of scope. Comprehensive doctrines appeal to a far                                                                                                                 10

Formally, “A political conception of justice is what I call freestanding when it is not presented as derived from, or as part of, any comprehensive doctrine. Such a conception of justice in order to be a moral conception must contain its own intrinsic normative and moral ideal.” John Rawls, Political Liberalism, Intro to Expanded Edition, xlii; cf. Political Liberalism, pp. 10-12; For Rawls statement of these three features, see John Rawls. “The Idea of Public Reason Revisited.” The Law of Peoples. Cambridge, MA: Harvard University Press, 2000. p. 143   11 James Boettcher. “Against the Asymmetric Convergence Model of Public Justification.” Ethical Theory and Moral Practice 18 (2015): 191-208. p. 196 12 Jonathan Quong. “On the Idea of Public Reason,” p. 267 13 John Rawls, Political Liberalism, p. 13; cf. p. 175

 

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  wider range of subjects, often uniting threads from religion, morality, and philosophy into a coherent framework. Whereas a political conception of justice “restricts itself to the political 14 15

domain and does not assert its values beyond that sphere.” §1.2.3. The Content of Public Reason

The content of public reason has two principle features. The first is located in the principles derived from the political conception of justice. These principles furnish citizens and 16

political officers with reasons that may be appealed to in the adjudication of political issues. The second feature comprises the set of epistemic principles and practices Rawls endorses as “guidelines for public inquiry.” These guidelines prescribe the various political virtues, such as 17

reasonableness and civility, which “make possible reasoned public discussion of political questions.” Citizens endeavoring to satisfy the demands of public reason while engaged in 18

political discourse must draw the substance of their arguments from a political conception of

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Christie Hartley & Lori Watson. “Feminism, Religion, and Shared Reasons: A Defense of Exclusive Public Reason.” Law and Philosophy 28.5 (2009): 493-536. pp. 496-7. For a delineation of the five principle tenets of political liberalism, see pp. 497-8. 15 T. M. Scanlon invokes Rawls’ doctrine of reflective equilibrium to clarify the conceptual connection between comprehensive doctrines and political conceptions of justice: Suppose that each citizen has both a comprehensive view and a political conception of the standards appropriate for settling questions about the basic institutions of society. We can think of the latter as one component of the former, a “module” within a person’s comprehensive view having to do with the assessment of one’s political institutions and thus with one important class of relations with one’s fellow citizens. If a citizen’s views are in wide reflective equilibrium, his or her political conception will be supported by, or at least in harmony with, his or her wider comprehensive view. In a well-ordered society citizens will hold the same political conception even though their comprehensive views may differ. In such a case we can say that there is a wide and general reflective equilibrium with regard to this political conception: the equilibrium is wide in the case of each citizen and general because “the same conception is affirmed in everyone’s considered judgments” (PL, p. 384, note 16). [T. M. Scanlon. “Rawls on Justification.” The Cambridge Companion to Rawls, edited by Samuel Freeman, 139-167. Cambridge: Cambridge University Press, 2003. p. 160] 16 John Rawls, Political Liberalism, p. 224 17 John Rawls. Political Liberalism, p. 224 18 John Rawls, Political Liberalism, p. 224

 

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  justice, such that their interlocutors might reasonably be expected to endorse the values underwriting those arguments, even if they do not endorse the arguments themselves.

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§1.3. The Site of Public Reason The site of public reason describes the specific locations within the political sphere where the norms and demands of public reason are in effect. Rawls gives public reason a circumscribed geography, requiring that liberals submit to its demands only within the public political forum. The public political forum encompasses (1) “the discourse of judges in their decisions, especially…the Supreme Court; (2) the discourse of government officials, especially chief executives and legislators; and (3) the discourse of candidates of public office and their political [speech].”

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Here as elsewhere, however, Rawls enumerates several contexts in which his

clearly defined boundaries of application admit of various exceptions. In this case, the site of public reason proves to have some elasticity, as it also “hold[s] for citizens when they engage in political advocacy in the public forum, and thus for members of political parties and for candidates in their campaigns and for other groups who support them. It holds equally for how citizens are to vote in elections when constitutional essentials and questions of basic justice are at stake.”

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§1.4. The Dimensions of Public Reason: Auxiliary Concepts                                                                                                                 19 20

cf. John Rawls, Political Liberalism, p. 241 John Rawls, “The Idea of Public Reason Revisited,” pp. 133-4

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Though it falls outside the purview of this paper’s focus, it should be noted that many contemporary political liberals have advanced theories of public justification which widen the application of public reason from merely the public political forum to all instances of political discourse. See, for example, Jonathan Quong’s Liberalism without Perfection: “I argue, contra Rawls, that the idea of public reason ought to have a much broader scope – that it should regulate all the political decisions in a liberal democratic society” (p. 258). 22 John Rawls, Justice as Fairness: A Restatement, edited by Erin Kelly. Cambridge, MA: The Belknap Press of Harvard University Press, 2001. p. 90; cf. Phil Ryan. “Stout, Rawls, and the Idea of Public Reason.” Journal of Religious Ethics 42.3 (2014): 540-562. See §3 on The Limits of Public Reason for more on elasticity in defining the appropriate site(s) of public reason.

 

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  §1.4.1. Reasonable Pluralism & The Burdens of Judgment “Reasonable citizens accept the idea of society as a fair system of social cooperation for mutual benefit between free and equal citizens.” Moreover, these citizens accept the fact of 23

reasonable pluralism, resulting from the conflict Rawls identifies as the burdens of judgment. In accounting for the sources of these burdens of judgment Rawls observes, inter alia, discrepancies in our assessing and weighing of evidence, especially when its relevance to a case is conflicting and complex, and the indeterminacy to which our judgments and interpretations are frequently subject. It is thus, Rawls states, 24

in a modern society with its numerous offices and positions, its various divisions of labor, its many social groups and their ethnic variety, citizens’ total experiences are disparate enough for their judgments to diverge, at least to some degree, on many if not most cases of any significant complexity. 25 26

It should be especially clear why, in liberal societies characterized by reasonable pluralism, laws and public policies should be constrained by the norms of public reason. “When it comes to justifying the most fundamental political principles – including the most basic individual rights and principled political guarantees – there are good reasons to discount those arguments that are extremely difficult to assess, and that are subject to reasonable disagreement.” In justifying the 27

basic principles of justice – including and especially those governing the access to various political rights and protections – it is paramount that we not provide reasons which may be                                                                                                                 23 24 25

Jonathan Quong. “On the Idea of Public Reason,” p. 268 John Rawls, Political Liberalism, pp. 56-7 John Rawls, Political Liberalism, pp. 56-7

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Noting  how  well  freedom  of  thought  fosters  political  conflict,  Oscar  Wilde  claimed,  in  a  way  that  only  Oscar   Wilde  could:  It  is  grossly  selfish  to  require  of  one's  neighbor  that  he  should  think  in  the  same  way,  and  hold   the  same  opinions  [as  oneself].  Why  should  he?  If  he  can  think,  he  will  probably  think  differently.  If  he  cannot   think,  it  is  monstrous  to  require  thought  from  him  of  any  kind.  “The  Soul  of  Man  Under  Socialism,”  The   Complete  Works  of  Oscar  Wilde:  Stories,  Plays,  Poems,  &  Essays,  introduced  by  Vyvyan  Holland,  1079-­‐1104.   New  York:  HarperCollins  Publishing,  2008.  p.  1101   27 Stephen Macedo. “In Defense of Liberal Public Reason: Are Slavery and Abortion Hard Cases?” The American Journal of Jurisprudence 1 (1997): 1-29. pp. 10-11

 

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  rejected on reasonable grounds. Public reason is sensitive to these considerations, requiring that 28

arguments draw support from shared moral and political premises, which “are in general more likely to be understood across a culturally pluralistic population.” It is difficult to overstate the 29

centrality of reasonable pluralism in public reason. In fact, public reason is advanced largely as a means of mediating the tension and dissonance arising from reasonable pluralism: “Given the fact of the reasonable pluralism of democratic culture, the aim of political liberalism is to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental political questions.”

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§1.4.2. The Liberal Principle of Legitimacy In their capacity as reasonable citizens, members of a well-ordered society endorse the Liberal Principle of Legitimacy (LPL), which maintains that “the exercise of political power is only legitimate when it can be justified in accordance with constitutional essentials and matters of basic justice that can be justified by appeal to values and principles acceptable to all reasonable and rational persons.”

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The LPL applies to exercises of political power, that is,

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To  be  sure,  rejections  of  these  justifications  stemming  from  unreasonable  grounds  pose  no  such  threat.  It  is   incumbent  on  neither  the  state  nor  its  citizens  to  provide  justifications  which  can  withstand  poorly  reasoned   objections.  Jon  Mandle  notes:  “Although  a  person  holding  an  unreasonable  comprehensive  doctrine  is  still   subject  to  the  principles  of  justice,  she  very  well  might  not  accept  their  legitimacy.  This,  however,  is  her  failing   —  her  unreasonableness  —  not  a  violation  of  the  liberal  principle  of  legitimacy  or  the  duty  of  civility.”  What’s   Left  for  Liberalism:  An  Interpretation  and  Defense  of  Justice  as  Fairness.  New  York:  Lexington  Books,  2000.  p.   75;  For  more  on  Quong  and  public  reason’s  treatment  of  unreasonable  citizens  see  n.  26 29 Robert Audi. “Religious Accommodation, Social Justice, and Public Education.” Unpublished Draft, 9 April 2015. Presented at The Fifth Bowling Green State University Workshop in Applied Ethics and Public Policy: The Scope of Religious Exemptions, 17-18 April 2015. 30 John Rawls. Political Liberalism, Intro to Original Edition, xix 31 Jonathan  Quong.  “On  the  Idea  of  Public  Reason,”  pp.  268-­‐9;  cf.  John  Rawls,  Political  Liberalism,  p.  217;  John   Rawls  on  political  legitimacy  in  “The  Idea  of  Public  Reason  Revisited,”  pp.  136-­‐7.   32 Rawls’s Liberal  Principle  of  Legitimacy  bears  remarkable  similarity  to,  and  serves  to  facilitate  similar  goals   as,  his  Criterion  of  Reciprocity.  The  latter  of  which  states,  “exercise  of  political  power  is  proper  only  when  we   sincerely  believe  that  the  reasons  we  would  offer  for  our  political  actions—were  we  to  state  them  as   government  officials—are  sufficient,  and  we  also  reasonably  think  that  other  citizens  might  reasonably  accept   those  reasons.” Political Liberalism, pp. 446-7

 

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  power wielded as a socially collective body to which all citizens are subject. There appear to be two principle reasons for treating the exercise of political power as requiring public justification: (1) Citizens do not voluntarily enter and cannot voluntarily leave the basic structure, and (2) political power is coercive. According to Rawls, the LPL requires not that each individual citizen consent to the PCJ being offered and, by extension, the exercise of political power. Rather, the LPL requires only that a reasonable citizen could reasonably be expected to accept such a PCJ. §2. Asymmetric Convergence vs. Consensus: A Comparative Analysis §2.1. The Consensus Model of Public Reason & The Shareability Criterion §2.1.1. Shareability as the Key Epistemic Property of Public Reasons Vallier argues that resolving tensions stemming from reasonable pluralism requires distinguishing reasons from the evaluative standards to which they are subject. There are two 33

general considerations, then, in articulating the conditions of public reason, which we might take to parallel a basic matter-form distinction. One consideration lays in the reason’s matter, that is, the content, or discrete proposition being advanced qua reason. The second consideration concerns the reason’s form, that is, the basic standards of inference or epistemic justification used by the individual when they accepted some claim, X, into their respective system of belief. Differentiations between shareability and intelligibility will be parsed largely along these lines. Two epistemic features define the shareability requirement. These are requirements concerning (1) the appropriate normative standards with which public reasons must comply, and

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Kevin Vallier. “Against Public Reason Liberalism’s Accessibility Requirement.” The Journal of Moral Philosophy 8.3 (2011): 366-389.

 

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  (2) the range of potentially permissible reasons. In order to clarify the normative implications 34

for these two features, let’s formalize them into conditionals: Shareability: A's reason RA is shareable with the public if and only if members of the public regard RA as justified for each member of the public, including A, according to common standards. Shareability Requirement: A's reason RA can figure in a justification for (or rejection of) coercion only if RA is shared with all (suitability idealized) members of the public. 35

We now have precisely defined models for shareability and its formal requirement. I will argue in the next section that shareability, which requires a consensus, better satisfies the ideals and commitments of political liberalism. §2.1.2. Deriving Shareability & Consensus from Doctrines Fundamental to Political Liberalism I will be arguing that the grounds for accepting the Cs-M are logically and straightforwardly deduced from key concepts internal to political liberalism. One plausible line of argument in support of the Cs-M is drawn from the ideal constituency of reasonable persons. In considering the dimensions of public reason, we undertook to give a general characterization of Rawls’ notion of reasonable persons. Recall that these are citizens who accept and endorse, inter alia, (1) a conception of society as a fair system of social cooperation between free and equal citizens, and (2) the related notions of the burdens of judgment and the resulting fact of reasonable pluralism. This understanding of reasonable persons implies that

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Kevin Vallier and Fred D’Agostino. “Public Justification.” The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), edited by Edward N Zalta. See §2.3.3. Shareability 35 These formalizations were appropriated from: Kevin Vallier & Fred D’Agonstion, “Public Justification,” §2.3.3. Shareability

 

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  To show that some political proposal, X, is publicly justified, we appeal to what reasonable people have in common—we appeal to their shared view of society as a fair system of social cooperation between free and equal citizens, and any further beliefs entailed by that ideal. You are not engaged in the practice of public reason unless you offer a reason or argument that will be acceptable to everyone in their capacity as free and equal citizens. Public reasons, on this Rawlsian approach, are thus shared reasons. 36

Consider, for example, Rawls’ criterion of reciprocity. Satisfying this criterion requires reasons offered in the political landscape to be evaluated counterfactually, such that, when “I offer public reasons to other citizens, I…would be willing to accept the terms of those conditions were I in their position.” This is a logical consequence of the criterion of reciprocity as Rawls defines it. 37

We may draw insight as well in considering Rawls’ notion of a well-ordered society, within which citizens do not determine basic matters of justice by announcing to one another the conclusions they each have derived from their own first principles and then resorting to some further mechanism, such as bargaining or majority voting, to resolve the conflicts. They reason from what they understand to be a common [i.e., shared] point of view; their aim is to adjudicate disagreements by argument. 38

In a well-order society, public reasons are legitimated in part by “their fitness for establishing an overlapping consensus.” To be sure, then, both shareability as an epistemic constraint on 39

reasons and consensus as the normative model of public reason are implicated by the constellation of concepts and doctrines which, taken together, constitute the fabric of political liberalism. §2.2. The Asymmetric Convergence Model of Public Reason & The Intelligibility Criterion                                                                                                                 36

Jonathan Quong. Liberalism without Perfection. Oxford: Oxford University Press, 2011. p. 261

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Christie Hartley & Lori Watson, “Feminism, Religion, and Shared Reasons: A Defense of Exclusive Public Reason,” p. 516 38 Charles Larmore. “Public Reason.” The Cambridge Companion to Rawls, edited by Samuel Freeman, 368-393. Cambridge: Cambridge University Press, 2003. pp. 376-7 39 Jon Mandle. What’s Left for Liberalism: An Interpretation and Defense of Justice as Fairness, p. 82

 

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  §2.2.1. Intelligibility as the Key Epistemic Property of Public Reasons As with shareability, intelligibility may be similarly formalized into conditionals to express the normative constraints imposed by its (1) standards of evaluation, and (2) range of permissible reasons. Define intelligibility and the intelligibility requirement as follows: Intelligibility: A's reason RA is intelligible to members of the public if and only if members of the public regard RA as justified for A according to A's evaluative standards. Intelligibility Requirement: A's reason RA can figure in a justification for (or rejection of) a coercive law L only if it is intelligible to all members of the public. 40

These formalizations should make it clear that the criterion of intelligibility in the justification of public reasons “places few if any restrictions on the use of reasons in political dialogue, activism, or voting.”

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§2.2.2. Asymmetry, Convergence, & Reasons as Defeaters: An Analysis of Key Concepts According to the AC-M of public justification, public reasons need not be drawn from a shared set of reasons, but can instead achieve the threshold of justification by establishing a convergence of various individuals’ privately held, publicly inaccessible, and hence non-shared, reasons. This is the Convergence we find within the Asymmetric Convergence Model, but 42

whence Asymmetric? The asymmetry alluded to in the name of this model denotes the presupposed symmetrical requirement placed on reasons, which “holds that the standards that apply to reasons to propose coercive actions are equivalent to reasons that reject or defeat

                                                                                                                40 41

Kevin Vallier & Fred D’Agostino, “Public Justification,” §2.3.1. Intelligibility Kevin Vallier. “Convergence and Consensus in Public Reason,” p. 264

42

Kevin Vallier & Gerald Gaus. “The Roles of Religious Conviction in a Publicly Justified Polity.” Philosophy & Social Criticism 35.1-2 (2009): 51-76

 

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  coercive action.”

43

Thus, the denial of symmetry allows one standard to apply to reasons which

propose coercive laws and policies and an altogether different standard applied to reasons which reject such policies and laws. This feature of the AC-M is crucial, for it allows Vallier to propose his solution to the perceived unfairness inherent within the Cs-M for religious citizens, which come in the form of defeaters. Nonpublic, e.g., religious, reasons which are unsuitable for justifying coercion can nevertheless function as defeaters in refusing to adopt otherwise justifiable laws or policies. Formally, “if the endorsement of each qualified citizen is necessary for the public justification of coercive law L, and if qualified citizen A refuses to endorse L because of intelligible nonpublic reason Rnp, then A’s affirmation of Rnp is sufficient to prevent 44

L from being publicly justified.”

Whereas the Cs-M assigns no justificatory weight to reasons

derived from comprehensive doctrines, on the AC-M, privately held beliefs are highly and directly relevant within the political sphere, as they provide what might be termed negative justification against the passage and subsequent enforcement of laws and policies. §2.2.3. Respecting Pluralism & Respecting Liberty: The Main Arguments for the AC-M Vallier champions and defends the AC-M with two main arguments, the conclusions of which are: (1) Asymmetric Convergence respects reasonable pluralism more than consensus, and (2) a) Asymmetric Convergence places fewer restraints on individual liberty, which is preferable since b) the Cs-M prevents religious citizens from relying on their core convictions in political justifications. Call (1) the Respecting Pluralism argument, and (2) a) the Respecting Liberty argument, b) the Integrity Objection. Vallier asserts, “Public reason liberalism’s fundamental                                                                                                                 43 44

 

Kevin Vallier. “Convergence and Consensus in Public Reason,” p. 263-4 James Boettcher. “Against the Asymmetric Convergence Model of Public Justification,” p. 194

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  values includes respect for reasonable pluralism and preservation of individual liberty. Asymmetric Convergence acquires a decisive advantage over the consensus alternative if it promotes both values more effectively.”

45

In developing the Respecting Pluralism argument, Vallier reminds those committed to the principles of public reason liberalism that the appropriate response to reasonable pluralism is to require that exercises of political power in general and coercive force in particular are justified to individuals subject to such exercises “in terms they can reasonably be expected to accept (or in terms of their rational commitments).” Accordingly, “public reason liberals should assume that 46

there is a presumption in favor of less restrictive conceptions of reasons over more restrictive conceptions.” Vallier develops the Respecting Liberty argument by indicating two particular 47

areas where the consensus model restricts liberty: “(1) by restricting the reasons that individuals may legitimately act upon in public political life, and (2) by restricting the range of reasons citizens may use to block the passage of coercive laws.” In requiring public reasons to issue 48

from a fund of shared political values and principles, advocates for the consensus model often endorse a principle of restraint, which serves “to limit the use of nonpublic bases of political justification and action.” Vallier laments the treatment of citizens who stand in violation of 49

these norms, as they may suffer “blame for being a bad citizen, [which] threatens ostracism from their moral community, …[in turn,] alienating them from [their] political institutions and society

                                                                                                                45 46 47 48 49

 

Kevin Vallier. “Convergence and Consensus in Public Reason.” Public Affairs Quarterly 25.4 (2011): 261-279 Kevin Vallier, “Convergence and Consensus in Public Reason,” p. 264 Kevin Vallier, “Convergence and Consensus in Public Reason,” p. 264 Kevin Vallier, “Convergence and Consensus in Public Reason,” p. 265 Kevin Vallier, “Convergence and Consensus in Public Reason,” p. 265

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  as a whole.” Pouring it on even thicker, he reflects on Nicholas Wolterstorff’s claim that 50

public reason liberalism, in requiring restraint, requires citizens of faith to “privatize” their religious beliefs and to “split” their identities into public and private halves. Citizens of faith often think that they should “base their decisions concerning fundamental issues of justice on their religious convictions” and that they will often want to “strive for wholeness, integrity, integration in their lives.” […]To ask citizens of faith to sideline their religious convictions may therefore be a substantial restriction of their liberty. 51

Compliance with the Cs-M apparently requires a sort of political schizophrenia. The Respecting Liberty argument, then, proceeds by illustrating ways in which the traditional consensus model creates a conflict of interests and loyalties in the minds of some particular, e.g., religious, subsets of the wider political community. §3. Vallier’s Arguments for Asymmetric Convergence & The Use of Reasons as Defeaters: A Critical Evaluation §3.1. Consensus or Asymmetric Convergence? Basic Desiderata for Assigning Priority to Incompatible Models of Public Reason In determining which model of public reason is superior, we should have some basic desiderata for answering the question, Superior with respect to what? I submit that our determination should be rooted in several fundamental considerations. Which model better accommodates the fact of reasonable pluralism will be central to our deliberations. But, to be sure, this is merely a social fact about liberal democracies. We must also take account of the moral fact at the center of public reason, which is expressed in the proposition that all persons are to be accorded respect as free and equal citizens committed to a fair system of social cooperation.. Thus, the first of our desiderata is: We want a theory of public reason which best                                                                                                                 50

Kevin Vallier, “Convergence and Consensus in Public Reason,” p. 265

51

Kevin Vallier, “Convergence and Consensus in Public Reason,” p. 265; Vallier quotes: Nicholas Wolterstorff. “The Role of Religion in Decision and Discussion of Political Issues.” Religion in the Public Square: The Place of Religious Convictions in Political Debate, 67-120. Lanham, MD: Rowman & Littlefield, 1997.

 

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  accommodates both the social and the moral facts of public reason. The second of our desiderata will be a consideration of which model of public reason will best preserve social and political stability.

52

§3.2. Requiring Religious Restraint & The Integrity Objection in Public Justification Vallier charges advocates of the Cs-M with consciously and willingly violating the integrities of religious citizens. But “the purpose of a conception of public justification is not simply to impose constraints on religious reasoning or discourse, as if that objective were to carry some sort of independent value.”

53

The principle of restraint is underwritten not by some

nefarious commitment to prevent religious citizens from participating in the practice of political justification, but rather the basic norm of respect for persons as free and equal citizens. To be clear, it is not that any reason which is present in a religious or otherwise privately held comprehensive system is objectionable in public justification. If the underlying convictions sponsoring these religious reasons are publicly accessible, then they may plausibly be liberated from their comprehensive doctrines and prima facie rendered permissible. Thus, insofar as religious reasons may be converted into generally comprehensible language, it may be that public reason has the resources to broker a compromise with people’s privately held beliefs. If, however, a religious reason is so disconnected from reality that it cannot withstand conversion 54

into doctrine-neutral, public terms, then it fails to offer fair terms of compromise.

§3.3. Does the Fact of Reasonable Pluralism Imply a Presumption for Less Restrictive

                                                                                                                52

This desiderata is related to the moral fact of public reason, but sufficiently distinct to warrant separate consideration. 53 James Boettcher. “Against the Asymmetric Convergence Model of Public Justification,” p. 200 54 This would seem to rule out religious beliefs that are socially exclusionary, that is, beliefs which split society into multiple separate communities, each with differing and incompatible rules.

 

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  55

Conceptions of Reasons?

Vallier claims that the appropriate response by public reason liberals to the fact of reasonable pluralism is to require that the state “publicly justify coercion to others in terms they can reasonably be expected to accept (or in terms of their rational commitments)” (emphasis added).

56

First, consider the all-too-easily overlooked parenthetical clause in this statement, and

consider especially the emboldened term. It appears as though Vallier is starting the argument by assuming that reasons need not necessarily be shared and that the onus is rather on the state (or political body doing the coercing) to offer justification tailored to the specific and idiosyncratic “rational commitments” of each individual subjected to the exercise of such coercion. In addition to this being the very proposition standing in need of proof –because of which it should not feature as a premise in the argument doing the proving – it is also not what the traditional public reason liberal has endorsed as the standard criterion for coercion. This is because Rawls takes political justification to require public reasons “that all persons could endorse in their idealized role as reasonable citizens.” It would appear, then, that Vallier has misread the history of public 57

reason liberalism’s conception of the individual and the manner in which they are entitled to political justification. §3.4. The Case Against Religious Reasons as Defeaters in Nonideal Contexts: The Role of Public Reason in The Hobby Lobby Case

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Those sympathetic to Vallier’s reasons-as-defeaters solution to the Integrity Objection                                                                                                                 55 56 57

Vallier answers in the affirmative to this question in “Convergence and Consensus in Public Reason,” p. 264. Kevin Vallier. “Convergence and Consensus in Public Reason,” p. 264 Jonathan Quong, “On the Idea of Public Reason,” p. 268; cf. John Rawls, Political Liberalism, pp. 54-61.

58

This refers to Burwell v. Hobby Lobby, for which the Supreme Court granted trial in 2013 and adjudicated in 2014. For general information and relevant facts of the case, see documents linked at The Oyez Project at ChicagoKent College of Law, < http://www.oyez.org/cases/2010-2019/2013/2013_13_354>

 

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  may desire further clarification on his opponents’ commitment to the accessibility requirement. This requirement stems, in part, from a basic normative dilemma: How do we distinguish between requests for genuinely religiously motivated exemptions and the exemptions that every citizen wants for every law that is inconvenient or disagreeable? One of the problems with admitting of religious reasons from comprehensive doctrines into political justification is that, for those who do not share the comprehensive doctrine that legitimates those reasons, religious 59

preferences seem wholly arbitrary.

Using the Hobby Lobby case as an example, consider that

for those standing outside the faith, there is simply no clear distinction between the following statements: (1) “It is against my religion to own shares in a corporation that provides health insurance to its employees which includes certain types of contraceptives.” (This is what the board of Hobby Lobby’s directors and chief executives assert.) (2) “I do not want to pay for contraceptives because insofar as a woman’s moral commitments and economic priorities disagree with my own, I want to limit a woman’s freedom whenever and wherever possible.” (3) “I do not want to pay for contraceptives because preserving the life of a fetus is more important than preserving a woman’s autonomy over her body. In other words, the fetus 60 should not be punished for the mother’s indiscretion.” For those who do not share the requisite doctrinal commitments, (1) is not materially different from (2) or (3), and it hardly follows that (1) is entitled to special treatment, given in the form of a defeater, concerning a law requiring employers to have insurance plans that include contraceptives. Reflecting on the desiderata from §3.1, it should be clear that filing for an exemption to avoid offering full medical coverage to an individual’s employees on the grounds                                                                                                                 59

This line of criticism inspired by a comment (User: Fastrider) to Kevin Vallier’s, “Hobby Lobby and My Public Reason Approach to Religious Exemptions,” posted at the Bleeding Heart Libertarians blog, 2 December 2013. < http://bleedingheartlibertarians.com/2013/12/hobby-lobby-and-a-public-reason-approach-to-religious-exemptions/> 60 These are (very likely, over)simplified generalizations that fail to acknowledge the nuances and caveats, e.g., different treatment for victims of rape and incest, which more sophisticated approaches call for.

 

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  that certain products and services may be provided which that individual finds objectionable is neither accepting the social fact of reasonable pluralism, i.e., acknowledging reasonable disagreement as to the moral priority of the life of a fetus over the autonomy and sovereignty of a woman’s body, nor the moral fact of respecting persons as free and equal citizens, that is, refusing to allow for individuals to exercise the full use of both, and especially the second of, their moral powers. The latter of which requires that individuals respect each other’s rational capacity to pursue and revise their own ends according to the system of values they adopt, that is, 61

the capacity to fulfill their Conception of the Good.

As we have seen, then, when tested against

our desiderata, the AC-M gives an underwhelming performance. §4. Public Reason and the Preservation of Stability: Concluding Remarks According to Vallier, the AC-M brings us into closer fidelity with the principles and convictions animating our commitment to political liberalism. In particular, Vallier claims that political liberalism is characterized by a “commitment to non-domination and [the] sanctity of conscience, [which] implies that religious citizens must not have laws imposed upon them which 62

they have no conclusive reason to accept.”

This passage illustrates what I take to be the most

problematic feature of Vallier’s critique of Cs-M and arguments for AC-M, that is, a myopic understanding as to the principal function of public reason: the preservation of social and political stability in a society characterized by reasonable pluralism. Vallier endeavors to purchase (the supposed restoration of) integrity by undermining stability. Then, having                                                                                                                 61

For a clear and concise explication of the two moral powers, see: John Rawls. Political Liberalism. Intro, xlv. The two moral powers are the twin features by which Rawls defines the individual as a person both of whom justice is expected and to whom justice is owed. As such, discussion of these powers and their various implications permeate Rawls’ works. For instance, in A Theory of Justice Rawls claims that this ideal of the person as consisting of two moral powers (1) is central to the Kantian interpretation of justice as fairness [§40], (2) provides the basis for equality [§77], (3) is the foundation for the congruence argument for stability [§86], and (4) is presupposed in his argument for the priority of liberty [§82]. John Rawls, A Theory of Justice, Revised Edition. Cambridge, MA: The Belknap Press of Harvard University Press, 1999. 62 Kevin Vallier. “The Roles of Religious Conviction in a Publicly Justified Polity,” p. 63

 

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  undermined stability by allowing the invocation of privately held beliefs in political justification, Vallier incites further destabilization by licensing those reasons as legitimate grounds for exemptions from neutral laws of general applicability. “Justifications of a society’s basic institutions that depend crucially on particular comprehensive views,” Scanlon observes, “will be reasonably resented by citizens who do not share these views. They will therefore not only be destabilizing but also fail to show proper respect for these citizens, who are owed reasons that they could reasonably accept.”

63

In conveying the sentiment underwriting political liberalism’s

commitment to public reason as a stabilizing force in political discourse, I can do no better than Charles Larmore, who claims, When citizens adopt certain principles of justice for reasons they understand one another to acknowledge, their joint endorsement of the principles amounts to showing one another respect. Their grounds for embracing them do not lie solely in their own, but in a shared point of view. The mutual respect demonstrated by their allegiance to this common basis is then a good which they can regard themselves as having achieved, and that is why the scheme of justice gains in stability. Their society illustrates Rawls’s claim that “a desirable feature of a conception of justice is that it should publicly express men’s respect for one another” (TJ, p. 179/156 rev.). What the publicity requirement really comes to, therefore, is that each person’s adherence to the principles of justice should 64 turn on reasons that he understands others to have to affirm them as well.

                                                                                                                63 64

 

T. M. Scanlon, “Rawls on Justification,” p. 161 Charles Larmore. “Public Reason,” p. 373

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Works Cited Audi, Robert. “Religious Accommodation, Social Justice, and Public Education.” Unpublished Draft, 9 April 2015. Presented at The Fifth Bowling Green State University Workshop in Applied Ethics and Public Policy: The Scope of Religious Exemptions, 17-18 April 2015. Bird, Colin. “Coercion and Public Justification.” Politics, Philosophy & Economics 13 (2014): 189-214 Boettcher, James. “Against the Asymmetric Convergence Model of Public Justification.” Ethical Theory and Moral Practice 18 (2015): 191-208. Gaus, Gerald and Kevin Vallier. “The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry and Political Institutions.” Philosophy & Social Criticism, 35.1-2 (2009): 51-76. Hartley, Christie & Lori Watson. “Feminism, Religion, and Shared Reasons: A Defense of Exclusive Public Reason.” Law and Philosophy 28.5 (2009): 493-536 Larmore, Charles. “Public Reason.” The Cambridge Companion to John Rawls, edited by Samuel Freeman, 139-167. Cambridge: Cambridge University Press, 2002. Lister, Andrew. “Respect for Persons as a Constraint on Coercion.” Public Reason & Political Community. London: Bloomsbury, 2014 Macedo, Stephen. “In Defense of Liberal Public Reason: Are Slavery and Abortion Hard Cases?” The American Journal of Jurisprudence 1 (1997): 1-29

 

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  Mandle, Jon. What’s Left for Liberalism: An Interpretation and Defense of Justice as Fairness. New York: Lexington Books, 2000. Quong, Jonathan. Liberalism without Perfection. Oxford: Oxford University Press, 2011. – . “On the Idea of Public Reason.” A Companion to Rawls: Blackwell Companions to Philosophy, edited by Jon Mandle and David A. Reidy, 265-80. Malden, MA: John Wiley & Sons, 2014. Rawls, John. Justice as Fairness: A Restatement, edited by Erin Kelly. Cambridge, MA: The Belknap Press of Harvard University Press, 2001. –. Political Liberalism, Expanded Edition. New York: Columbia University Press, 2005. – . “The Idea of Public Reason Revisited.” The Law of Peoples. Cambridge, MA: Harvard University Press, 2000. Ryan, Phil. “Stout, Rawls, and the Idea of Public Reason.” Journal of Religious Ethics 42.3 (2014): 540-562 Scanlon,  T.  M.  “Rawls  on  Justification.”  The  Cambridge  Companion  to  Rawls,  edited  by   Samuel  Freeman,  139-­‐167.  Cambridge:  Cambridge  University  Press,  2003. Vallier, Kevin. “Against Public Reason Liberalism’s Accessibility Requirement.” The Journal of Moral Philosophy 8.3 (2011): 366-389. – . “Convergence and Consensus in Public Reason.” Public Affairs Quarterly, 25.4 (2011): 26179 – . “Hobby Lobby and My Public Reason Approach to Religious Exemptions,” posted at the Bleeding Heart Libertarians blog, 2 December 2013.

 

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  Vallier , Kevin & Fred D’Agostino. “Public Justification.” The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), edited by Edward N Zalta Wilde, Oscar. “The Soul of Man Under Socialism,” The Complete Works of Oscar Wilde: Stories, Plays, Poems, & Essays, introduced by Vyvyan Holland, 1079-1104. New York: HarperCollins Publishing, 2008. Wolterstorff, Nicholas. “The Role of Religion in Decision and Discussion of Political Issues.” Religion in the Public Square: The Place of Religious Convictions in Political Debate, 67-120. Lanham, MD: Rowman & Littlefield, 1997.

 

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