In the last forty years, political philosophy has witnessed a plethora of visions of the just society—natural rights libertarianism, ”left” libertarianism, prioritarianism, sufficientarianism, egalitarianisms of a stunning variety, republicanism; theories of economic desert, welfare, need, and capabilities. And, of course, the old standby, utilitarianism. (We must not forget that many a hard-headed economist, insisting that he will have no truck with philosophical talk, proceeds to announce his allegiance to some form of social utility as the standard of justice.) Political philosophers self-identify with their sects (“I’m an egalitarian.” “Not me, I’m a libertarian.” “Well, I’m a sufficientarian welfarist with prioritarian leanings!”) Each of the dizzying variety of philosophical sects presents itself as possessing the truth about the just political organization and tells its adherents that the other sects either are recommending injustice, are not truly liberal, or have committed a heresy in, say, advocating resource egalitarianism over welfare egalitarianism, or left-libertarianism over orthodox rights libertarianism.

This understanding of political philosophy—as the theorist’s vision of the perfectly just society based upon her “intuitions” or controversial “theory” of justice—is facing a crisis of credibility. Perhaps the original hope was that the systematic use of human reason would lead enquirers and citizens to converge on the truth about “distributive justice” or “the role of the state,” but any impartial observer must conclude what should have been obvious all along: as in so many matters, the free use of human reason leads to sustained disagreement and a proliferation of sects. This is not a mere episode on the way to consensus and enlightenment, but “a permanent feature of the public culture of democracy.”[1] Such was the deep insight of the greatest political philosopher of the twentieth century, John Rawls. Because the use of our reason on these matters is inherently controversial, political philosophy must, as he tells us, apply the principle of toleration to philosophy itself. Liberalism’s founding insight was the recognition in the sixteenth and seventeenth centuries that controversial religious truths could not be the basis of coercive laws and public policies. The task is now to apply this insight to philosophizing about justice itself. This is an extraordinarily difficult lesson for many. Can it really be that I should not endeavor to ensure that my society conforms to my “knowledge” of justice? (Compare: can it really be that my “knowledge” of God’s will should not structure the social order?)

Public reason liberalism seeks to respond to this crisis in the credibility of political philosophy by grounding public rules and institutions in the reason of all. Political institutions, social structures, and basic social rules are politically or morally justified only if they can be endorsed from the perspective of each and every free and equal “reasonable and rational” person. Public reason liberalism sets aside the illiberal dream of founding social and political order on a shared truth about the nature of justice, replacing it with the aspiration of finding terms of association on which good-willed and reasonable citizens, disagreeing about basic aspects of the good life and the ideally just society, can converge. This conception of liberalism is literally revolutionary—it seeks to return liberalism to its founding insight that we must live together without sharing our deepest visions: that liberalism is an alternative to sectarianism, not simply a form of it.

The regulative aim of public reason liberalism is to inquire whether—and if so, how—free and equal persons with deep and enduring disagreements might all come to endorse a social and political order. The obvious liberal solution would appear to follow John Locke. Political philosophy must distinguish civil interests, which we all share, from religious disputes, which set us at odds. “I esteem it above all things,” says Locke, “necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds that lie between the one and the other. If this be not done, there can be no end put to the controversies that will be always arising between those that have, or at least pretend to have, on the one side, a concernment for the interest of men’s souls, and, on the other side, a care of the commonwealth.”[2] A successful liberal state must focus on what we share, and it must privatize those matters about which we disagree. This essentially Lockean view has been pressed by Rawls and his followers, according to whom liberalism’s public reason is based on the reasons that we share. So understood, the aim of public reason liberalism is to identify a set of reasons that we all have in common as citizens, and to constrain the political to it. Having done that, we can then discover political consensus insulated from our wider valuational and religious diversity.

The advice of this orthodox understanding of public reason is to set aside that which divides us, and focus our common political life on that which unites us. It is advice that has proven impossible to follow. The resurgence in the last thirty years of religiosity and religion-based politics undermined the hope that our deep divisions about the good life and our place in the universe could be confined to the private sphere. As in Hobbes’s time, religious conviction again leads to political dispute. In response, proponents of the orthodox view flounder, either simply insisting that religious citizens have a moral duty to refrain from appeal to their faith in the public arena, or offering strained “provisos” that allow religion in—as long as, in the end, it can be backed up with the secular reasons that truly matter.

Within the academy, the counsel of focusing on our shared secular reasoning has led not to consensus and an end to “controversies,” but to a radicalization and fracturing of political philosophy into the various all-too-familiar sects. While in A Theory of Justice Rawls was confident that it was within the human horizon for all to agree on “the same principles of justice,” his later works evince increasing skepticism that this can be achieved. Even when we restrict our deliberations to a common set of political values, Rawls concluded, we will end up disagreeing on what are the best or most reasonable principles. Rather than holding that all reasonable persons can be brought to endorse the very same principles of social justice, his final aspiration was that reasonable citizens will share a general liberal view of justice. “By this I mean three things: first, it specifies certain basic rights, liberties, and opportunities (of the kind familiar from constitutional democratic regimes); second, it assigns a special priority to these rights, liberties and opportunities, especially with respect to claims of the general good and of perfectionist values; and third, it affirms measures assuring all citizens adequate all-purpose means to make effective use of their basic liberties and opportunities.”[3] Because, Rawls says, “each of these elements can be seen in different ways, so there are many liberalisms.”[4]

A nonsectarian liberalism is deeply skeptical that reasonable and rational people will ever concur on principles of distributive justice, the extent of property, or the role of the state. The most at which we can realistically aim is convergence on a set of principles or policies that all reasonably reflective and good-willed citizens can endorse as in some sense acceptable. Good-willed, reasonable, and rational people will always disagree on what is the best principle of justice, the best constitution, or the best practice of property. Only the self-assured, self-righteous sectarian now can doubt that, or charge that her opponents have made some error perceptible to normal human reasoning. (Of course she claims that they have made an error perceptible to her reasoning—but that is the quintessential sectarian claim). In our pluralistic world the only consensus within our reach is on the contours of an eligible set of principles, practices, or constitutions. Interestingly, even in A Theory of Justice Rawls recognized this in regard to matters of justice below his grand two principles. Often, he pointed out, our test for whether policies or institutions are just will be indeterminate. “But when this is so, justice is to that extent likewise indeterminate. Institutions within the permitted range are equally just….”[5] This, I have argued, is the general case: the best we can do is to identify a set of possible arrangements, each of which reasonable individuals have sufficient reason to live by, but which they rank very differently. The fundamental critical question concerns the test: how do we identify the range of justice?

The beginning of an answer is to realize that to endorse rules and practices as just is to adopt a set of attitudes towards them. To see a rule as specifying a requirement of justice is to experience resentment and indignation at its violation by others, and guilt and remorse when one violates it. It is to accept that the behavior covered by the rule is properly the business of others, and that punishment and censure will typically be appropriate responses to violations. These attitudes and sentiments are endogenous to the practice of justice: they are core aspects of what we mean when we say that something is a matter of justice.

An adequate public reason liberalism will inquire, for any actual or proposed rule of justice, whether good-willed and rational agents, reflecting on their entire set of concerns, have sufficient reason to adopt these attitudes, and welcome these concommitments of a rule of justice. If they do—if given one’s set of evaluative considerations, which sometimes overlap with those of others and sometimes are distinctive—then in one’s view the rule has passed the test: it is a rule that one has reason to treat as is befitting a rule of justice. There is no reason to think that a person only has reason to adopt these sentiments and attitudes towards the rule she thinks best. As rules of social and political morality, the rules of justice are generally a great good, ordering our social life so as to provide the framework for cooperation and mutual benefit. In reflecting on their public acceptability we are not concerned with bargaining, bluffing, or disputes in the pages of a philosophy journal. The question on which we should focus is whether, given the costs and benefits to our evaluative standards, the benefits of adopting these attitudes towards some rule are greater than the costs for all. Simplifying—but not so much as to obscure the critical point—if they are, a person has reason to embrace this rule as within the range of justice.

Of course different people will apply this test with different results. Some will identify a wide range of justice, while for others it will be narrower. But the liberal insight is that in a social world of great diversity the only possible sets on which we can converge are ones with extensive individual freedom—what Benjamin Constant called the “liberties of the moderns,” the “right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, whether to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims. Finally, it is everyone’s right to exercise some influence on the administration of government, either by electing all or particular officials, or through representations, petitions, demands to which authorities are more or less required to pay heed.”[6]

Beyond this, we have reasonable disputes about what type of property arrangements we shall have, what will be supplied privately and what publicly, the scope of the sphere of privacy, and so on. On all these matters the eligible set will have numerous elements. A distinctive feature of classical liberals is that, as a rule, they tend towards more restricted sets. As John Stuart Mill argues in the fifth book of The Principles of Political Economy, state-enforced justice is backed by coercive force, and coercion is always a dangerous tool. Perhaps more than any other matter, classical liberals have made us aware of the dangers of coercive regulation, and so have insisted that benefits of legislation be manifest and significant. And so the classical liberal is apt to be among the more skeptical that the benefits of coercive regulation are truly worth the costs.

We must, though, be careful. The basic rules of justice are great goods to all, and so the determination that one could not adopt the requisite attitudes towards a rule is a grave conclusion, not to be easily reached. Certainly, the classical liberal’s acceptable range must be based on recognition that there are many acceptable property practices, and that most (perhaps all) of these will include transfer payments. Classical liberals are rightly impressed by market processes, and as citizens they appropriately urge employing them on a wide variety of fronts. But they must also recognize that these are typically controversial claims, based both on a certain weighing of a specific set of values and uncertain empirical evidence. As are other citizens; of course they are convinced that they are correct, but a conflict of confident political judgments is the stuff of a diverse society.

Because the best public reason liberalism can hope for is an eligible set (of constitutions, principles of distributive justice, property practices, etc.) with more than one element (the set is non-empty because disagreement is not without limit, it has more than one member because disagreement about political morality is ubiquitous), all plausible public reason liberalisms must devise some way to select from the socially eligible set. There is a range of justice, but to regulate our shared social life there must be some common understanding of justice. Public reason tells us that, from the public point of view, there is no best choice but that any member of the eligible set is better than any option outside the set.[7] A Lockean will hold that we should appoint a constitutional umpire, who is constrained to provide determinations within the socially eligible set. And certainly a large number of our disputes must be handled through democratic adjudication. Recently I have argued that the Lockean solution is often complemented by a social process that yields a moral equilibrium on one member of the set.[8] However, for present purposes the important point is not specifically how a liberal theory of public reason selects from the eligible set, but that it must have some account of how to do so. Some account of how we sort through bounded disagreement and select from the eligible set is necessary for any plausible liberal theory.

Should we come to coordinate on some member of the eligible set, we can achieve a free justificatory equilibrium. For each person in a diverse society, considering those values and commitments that are central to her understanding of the good and the just, acting justly will be the best reply to the just actions of others. Because each draws on her wide set of normative commitments in endorsing a rule of justice, and so moral justification does not demand that she brackets that about which she most cares, the temptations to defect on justice are minimized. The more political justification sets aside a citizen’s deep concerns, the more she is apt to see justice as a severe cost—justice could demand that she regularly set aside that which she considers most dear. As Rawls recognized, if a just society is to be stable, the rules of justice must be in a sort of Nash equilibrium: given the just action of others, one’s overall best response is to reply in kind.[9]

Yet, while such a society can be a free moral equilibrium, the temptation of sect-based defection remains. To acknowledge that the principles that regulate our social and political order will never be the ones that everyone endorses as best requires a moral maturity on the part of both the political philosopher and citizen. The first impulse of the political philosopher is to optimize—to demand the best, the ideal, the perfect according to his own reflections. To be sure if (and only if) his sectual preference is within the eligible set, he may press for it in the public forum on disputed issues. But he must abjure all claim that his is the uniquely just view, the others being merely impostors or, worse, disguised evils. (I was once on a public panel at a major research university on the topic of affirmative action, advancing what I took to be the modest thesis that there are reasonable worries about it, and those who oppose it are not evil. My co-panelists and the audience roundly rejected this outrageous suggestion.) The morally mature citizen and philosopher knows that a diverse society will never come to share a conception of the best, and that means that she must reconcile herself to living under principles and practices that she does not think are the best, or in fact anything very close to it. Only this mature attitude allows widespread reconciliation to a social world of diversity, which includes diversity of political views. Those with such a mature attitude will not be alienated from their social and political world as are so many of today’s political philosophers and citizens; they will not chafe at being subject to principles and practices that they deem fall far short of the best as they have come to understand it.

Of course one with a mature attitude that allows reconciliation to a social and political world of diversity need not reconcile oneself to every possible principle or practice. The mature attitude need not abandon the critical stance: it must place some limits on what can be endorsed. In short, while abandoning the optimizing stance it must not endorse repression and injustice. The mature attitude sees the distance between falling short of the best and oppression — a difference the sectarian cannot see. The sectarian political philosopher (at least in her writings though not in her actual social life) is apt to deem as unjust all those regimes that do not conform to her favored “theory of justice.” The difference, though, between less-than-the-best and the unacceptable is real. There is a wide range of the just. In a world of diversity, a just and free society can only be achieved once citizens and philosophers appreciate the distance between what is acceptable and their sect’s vision of the best.

Gerald Gaus is the James E. Rogers Professor of Philosophy at the University of Arizona, where he directs the program in Philosophy, Politics, Economics & Law. His most recent book is The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge University Press, 2011). His website is www.gaus.biz.

Notes

[1] John Rawls, Political Liberalism, paperback edn. (New York: Columbia University Press, 1996), p. 36.

[2] John Locke, “A Letter Concerning Toleration,” in the Works of John Locke in Nine Volumes, 12th edn. (London: Rivington, 1824), vol. 5, pp. 9-10

[3] John Rawls, Political Liberalism, p. 223.

[4] Ibid.

[5] John Rawls, A Theory of Justice, revised edition (Cambridge, MA: Harvard University Press, 1999), p. 176.

[6] Benjamin Constant, “The Liberty of the Ancients Compared with that of the Moderns” in Political Writings of Benjamin Constant, edited by Biancamaria Fontana (Cambridge: Cambridge University Press, 1988), pp. 308–28.

[7] Roughly, we can say that public reason give us a maximal set but not an optimal choice. On the rationality of choosing from such sets, see Amartya Sen, “Maximization and the Act of Choice,” in his Rationality and Freedom (Cambridge, MA: Harvard University Press, 2002): 159-205.

[8] See my Order of Public Reason (Cambridge: Cambridge University Press, 2011), especially chap. VII.

[9] This has been brought out in Paul Weithman’s masterful study, Why Political Liberalism? (Oxford: Oxford University Press, 2010).

In recent brilliant work, exemplified by his essay “The Range of Justice,” Gerald Gaus argues provocatively that virtually all current theorists of justice from libertarians to conservatives and beyond are sectarian in that they propose imposing their favored view of justice on others who reasonably disagree. Instead theorists should be asking, given that reasonable people are locked in intractable disagreements about justice, what is a sensible and fair response to this predicament? The answer is that we should seek a basis for living together on which all reasonable people, from their diverse perspectives, can agree. This is essentially the doctrine of political liberalism propounded by John Rawls. Gaus’s considerable achievement is to state Rawls’s idea more rigorously and in a way that frees it from the baggage of liberal ideology that Rawls had loaded on top of it, thus obscuring its appeal.

Political liberalism is presented as a generalization of the idea of religious toleration. Just as the state ought to be neutral on religion, by the same logic, the state ought to be neutral on controversial ideas of justice.

This analogy, however, is flawed The basis of religious toleration has nothing to do with the thought that, when regarded from the right impartial epistemic perspective, all religious views are equally rational and worthy of belief. Do you really believe that fundamentalist Christianity is a rational doctrine that makes a serious claim on our belief? The bumper sticker says, “God said it. I believe it.” That is pretty much the end of the story for the fundamentalist. He takes a particular book, a favored version of the Christian Bible, to be the privileged repository of God’s instructions for humanity as to how to live. The background assumption is that God, being all-powerful and so on, has a unique legitimate authority to issue those instructions, and that he happens to have done so here. God’s commands constitute what we ought to do, and a literal reading of the words of the Bible reveals God’s commands.

In my view, the reasons that a just state should extend religious freedom to fundamentalist Christians, to all other religious adherents, and to nonadherents has nothing to do with the epistemic credentials of their doctrines. Religious toleration is a sound policy because suppression of religious belief under just about any circumstances we are likely to encounter will do far more harm than good. The reasonably expectable consequences of persecution are uncontroversially bad.

Back to Gaus. He says the aim of political liberalism is to determine how “free and equal persons with deep and enduring disagreements might all come to endorse a social and political order.” But free and equal persons vary enormously in the degree to which they are rational (able to think straight, without cognitive error), well-informed (have correct empirical beliefs relevant to choice of action and policy), and have humane sensibility (are concerned to treat others fairly and to take due consideration of their good). All of these considerations are relevant to the question, should your views be influencing the basic principles that are going to govern the social order. If fundamentalist Christians are among the free and equal persons, all of whom play equal roles in shaping the principles we should live by, then those principles are overwhelmingly likely to be defective from the standpoint of justice according to any rational construal of the idea of justice.

The trick, then, is to filter the set of persons who are to figure in the theoretical construction that determines the legitimate basis for government and policy, the content of public reason. We are to consider “good-willed reasonable and rational people” (I am quoting Gaus again). I take it that the good-willed according to political liberalism are those who are willing not to be sectarian and to live by principles everyone can accept. This is already a controversial stipulation, but let that pass.

Who are the “reasonable and rational”? If a reasonable and rational person is a perfectly rational agent who correctly perceives the reasons there are, and correctly gauges the true relative weight of each reason, and correctly integrates the lot of them to determine what is to be done, the political liberalism problem disappears. Fully reasonable and rational people do not disagree. (This does not entail they agree on one unique doctrine; there might be more than one doctrine that is tied for best, and there might be limited commensurability, so that some doctrines are neither better nor worse than one another nor equally good. But they agree on the normative truth, however complex or disjunctive that may be.) If on the other hand the reasonable and rational persons are those who are sort of rational or rational enough, and who manifest clear thinking at some threshold acceptable level, then the question becomes: Why should people prone to error and false belief be allowed in the set of theoretical determiners of what is right and wrong, of what are the legitimate principles that fix what we owe to one another? After all, if I am below the threshold acceptable level, then when you impose on me on the basis of moral principles I do not accept, the thing to say to me is that you are not treating me wrongly or disrespectfully. You are treating me according to principles I would accept if I were fully rational. But this is the correct response to anyone who is less than fully reasonable and rational, and who claims to be mistreated when people act in ways that affect him according to principles that he does not accept after careful consideration. If the principles on which the others are acting are principles the dissenter would accept if he were thinking straight and fully informed, he has no valid complaint.

This response to Gaus might seem hopelessly abstract and otherworldly when we consider our actual limited epistemic position. None of us is perfectly rational and none of us knows what a fully reasonable and rational agent would think. Moreover, our empirical beliefs are gappy; we lack the correct theory of everything.

True enough, but the same point holds in our actual epistemic circumstances. Although I may not be able to tell when I am making mistakes, and although I may correctly see that you are falling short of perfect rationality, and although we may both end up firmly adhering to opposed beliefs about what is right and fair, it still might be the case that your view is better than mine—better reasoned and so far as anyone can tell, more likely to be correct or close to correct as the matter would be judged from an ideally rational and informed perspective. If so, it is not wrong, in fact it is morally imperative, that your view should prevail and not mine, and when people act toward me on the basis of moral views that are better reasoned and more likely to be correct than mine, even if none of us can be certain about where moral truth lies, they are not acting wrongly and not mistreating me (so far as we can tell). Again, I have no valid complaint. In other words, in our actual circumstances, in modern societies now, we are all in the position of the Christian fundamentalists—the only exception being the person or set of persons that is getting it right about practical reason as best we can tell.

The position we have reached is that the ideal of a society of fully reasonable and rational people disagreeing about what is right and just and agreeing to seek principles they can all accept is strictly incoherent. Reasonable and rational people when fully informed will not disagree. (If reason is inconclusive on some issue, and any one of twenty views is equally good, they will all converge on that opinion.) The issue of what to do when reasonable and rational people disagree is a nonstarter. If people disagree when confronting the same set of facts, at least some of them are not being fully reasonable, and the solution is that they should govern their affairs by whatever principles are best supported by reasons.

At this point I should probably lay my sectarian cards on the table. Who is getting it right? I do not know. We see through a glass darkly. There is a strong simple idea that should probably command allegiance, which is that rationality is maximizing. Rationality is not leaving money on the sidewalk when the money could be used to advance useful goals and the action of picking it up is costless. Rationality is taking effective steps to achieve worthy goals to the maximal extent. With a plurality of worthy goals, rationality is maximizing an appropriately weighted sum of them. (A momentary pleasure is a worthy goal and a lifelong rich friendship is a worthy goal but the second appropriately gets greater weight than the first.) Which goals are worthy of pursuit? Any plausible answers ultimately turn out to be characterizations of, or components of, good lives for people. And some sort of impartiality constraint (the details are messy and controversial) is rationally irresistible: my good counts no more and no less than yours, and more good is better than less, and (here’s a genuinely controversial claim) benefits matter more, the worse off the individuals who get them. What about human rights, and moral constraints, and options and personal prerogatives to live as one chooses? These are all supremely important, at the level of policy, as means to bring about good outcomes, good outcomes being fixed by the consequentialist standard just sketched. (See the writings of John Stuart Mill for some constructive filling out of very important details.) Beyond that, things get messy. Consequentialism is a work in progress.

There are arguments that support the claims made in the previous paragraph, but I am not yet fully convinced that consequentialism as just characterized is supported by better reasons all things considered than certain plausible rival views. What I am sure of is that there are better and worse reasons and that the views that at the end of the day are better supported by reasons should guide (maybe very indirectly, as direct guidance may be counterproductive) individual action, public policy, and choice of institutions. That makes me a sectarian in Gaus’s terms. Whatever principles, if any, free and equal “rational enough” persons would all endorse as a basis for living together will surely diverge wildly from the principles that are, so far as can now be known, best supported by reasons. Given the choice between political liberalism and sectarianism, we should all be sectarians in search of the best doctrine.

At the core of Jerry Gaus’s “The Range of Justice” is a twofold contention. The positive portion of that contention is that proper philosophizing can inform us about which packages of principles would characterize a just society and which packages of principles would characterize an unjust society. Proper political philosophizing can inform us about what is within and what is without the range of justice. The negative portion of Gaus’s core contention is that proper philosophizing cannot deliver the sort of conclusion that, as Gaus sees it, every sectual political philosopher seeks. As Gaus sees it, every sectual political philosopher offers at least a fairly thick and contentful vision of the just society and sets out to demonstrate that a society will be just if and only if it conforms to this thick and contentful vision. Gaus seems to me to be saying that, insofar as the classical liberal philosopher[1] favors one point along the range of justice, this theorist is one of these many overly ambitious sectual theorists.

So the bad news that “The Range of Justice” delivers to classical liberal thinkers is that they cannot possibly show the unique reasonableness of their position. On the other hand, there are two bits of good news. One bit is that, although good political philosophizing excludes many doctrines about justice from the “eligible set” of political doctrines, sound theorizing includes classical liberalism within that set. For Gaus, this is to say that classical liberalism is one of the positions that each member of the public has reason to accept—even if there are also other positions that each has reason to accept (but not, of course, at the same time). As I understand Gaus, the second bit of good news for the classical liberal is that all the other members of the eligible set are not very distant from classical liberalism. The range of eligible positions is not made up of discontinuous points scattered over the total landscape of proposed conceptions of justice. It seems, therefore, that although classical liberals may have to mature enough to live with market-friendly moderate interventionists, they will not have to grow up as much as Marxists and friends of the Corporate State.

One thing that has to be appreciated about Gaus’s position is the extent to which it is a meta-theoretical view. He has a view about how sensible political philosophy must be done and his primary complaint against most other political philosophers is that they are not following the one sensible and pretty much recently blazed path for political theorizing. On this meta-theoretical view, it is a profound mistake for the philosopher to set out to discover correct normative principles. The natural rights theorist who seeks to discover the most fundamental moral rights, the utilitarian who seeks to detect the common end that we all ought to promote, and the egalitarian who seeks to uncover the distributive rule that all persons must serve all make the same deep mistake of seeking some discoverable, detectible, uncoverable moral truth. At least lots of the sectuality in political philosophy is due to this common, deep, and longstanding mistake about the nature of the enterprise.

In contrast, as Gaus sees it, correct normative principles are not so much discovered as they are constituted; ultimately interpersonal normative principles are constituted by the convergence on them of the reasonable assessments of the agents who will be subject to those principles. Nor is the reasonableness of agents who converge on some package of principles a matter of those agents all discovering the correctness of certain principles. To think of the converging agents in that way is to slip back into the deeply mistaken discovery conception of moral investigation. Rather, an agent will have reason to accept a certain body of principles if and only if a social world structured by those principles will make things better from the perspective of that agent’s given “evaluative considerations.”[2] A package of principles will be converged upon only if a world structured by those principles will make things better from the perspective of every agent’s evaluative considerations.

Properly conducted political philosophy is, then, an inquiry into the deliverances of “public reason.” This is not the reason of some mysterious public person; it is the convergence of the reason of all members of the relevant public—where the reason of each individual is itself constituted by that individual’s evaluative considerations. Gaus takes this focus on public reason—which he sees as emerging primarily from the work of John Rawls—to be a fundamental correction to all or most traditional political philosophizing. Finally, political philosophy is on the proper path.

Why is the public reason path also the path of political liberalism? The answer is that, according to the public reason approach, any political principle under which individuals may be subject to constraint or intervention—for example, the principle that one may be restrained if one is engaged in unprovoked killing—will be justifiable only if it is justifiable to each individual who may be subject to that principle. And it will be justifiable to each individual only if in the case of each individual her evaluative considerations provide her with reason to accept that principle.

A major impetus to the idea that justification of principles must be justification to each individual is the radical diversity among individuals in modern pluralistic societies with respect to their values, aspirations, and (even) their attachment to principles. Since no one concatenation of values, aspirations, and honored rules is privileged, showing that some such concatenations give the individuals with those evaluative considerations reason to accept a certain principle is not enough to justify it. If the justification of principles depends on their conformity to evaluative considerations and each person’s differing evaluative considerations have equal standing, then a justified principle must conform to everyone’s evaluative considerations.

However, as Gaus sees it, the very diversity that supports the requirement that principles may not be put into operation unless they are justifiable to all precludes there being just one package of principles that each has reason to accept. Thus, we get to the bad news that even fans of packages of principles that make it into the eligible set—as classical liberalism does—are going to have to do some growing up. They are going to have to become mature enough to face and live with the fact that theirs is not the uniquely reasonable position.

I want now to turn to some problems that seem to exist for Gaus’s position—at least as I understand it. The first problem is that Gaus seems to ignore a deep difference between the classical liberal accommodation of radical diversity of personal ends and visions of the good life and the typical sectual demand that individuals have to sacrifice their personal projects and commitments for the sake of promoting certain politically favored substantive ideals of life or substantive visions of the good. Some of these latter theorists offer detailed prescriptions about the modes of life into which the state should mold its citizens. Others merely (!) point to some allegedly common end or set of ends—like the aggregate happiness or the maximization of the income of those in the lowest income group or the equalization of welfare—which the state ought to insure that people serve. The common element among all these theorists is the elevation of certain substantive goals or aspirations to political ends that individuals are to be required to advance despite the diversity of their individual evaluative considerations. For this reason, each of these doctrines can be charged with failing to take seriously the diversity of people’s personal goals and aspirations.

In contrast, classical liberalism eschews the elevation any substantive ends to the status of mandatory social goals. It does this by focusing on precluding means rather than mandating ends. At least as a first approximation, the classical liberal stance is that individuals and associations may go for any ends whatsoever but not by means that preclude others from going for their chosen ends. Only those ends are precluded that inherently involve the deployment of forbidden means, such as the end of being the most skilled random killer in human history. Advocates of such a classical liberalism can plausibly claim that their view uniquely takes seriously and accommodates the radical diversity of persons’ goals and aspirations that Gaus himself seeks to exploit.

Of course, more has to be said on behalf of these constraints on the means that individuals may employ in the pursuit of their respective ends than pointing out that focusing on them is a way of avoiding the enshrinement of mandatory social ends. Looking ahead, perhaps abiding by such constraints can be shown to be a reasonable response to others’ existence as free and equal moral persons. In addition, there will of course be disputes about how exactly to articulate those constraints that, according to classical liberalism, are the primary business of legal institutions to enforce. However, we should note that nothing within this approach commits the classical liberal to the view that there is one best articulation of these constraints that it is the job of philosophy to identify.

I have presented the present case for classical liberalism as an instance of the old, but child-like, kind of political philosophizing that Gaus disavows. However, we can recast the argument as an appeal to the test of mature Gausian public reason. All we have to do is to envision that the proposal to order society on the basis of precluded means rather than enshrined ends is being put before each member of the public and then inquire whether or not all of those members will have reason to accept the proposal given their evaluative considerations. I think that a second problem with Gaus’s overall view is that, when we recast this classical liberal argument into a proposal that is being put to the Gausian public reason test, this swell argument seems to fail. It seems to fail precisely because some members of the public—like our friend whose central goal is to be a magnificent random killer—will have at the core of their evaluative considerations ends that inherently involve violations of the proposed constraints. So, these individuals will not have reason to accept the proposal and, therefore, the proposal will not qualify as public reason.

I have been careful to say that it seems that the classical liberal proposal will fail the Gausian test because my example of the individual who aspires to be a champion killer points us to deeper yet issues within the Gausian system—issues of which there are only hints within “The Range of Justice.” At the core of these issues is the role played within the system by the thought or the sense that human beings are free and equal moral persons.

As I understand it, what is crucial for Gaus is not the (discoverable) morally portentous fact that we all are free and equal moral persons. Rather what is crucial is all or almost all of us having a (possibly unrecognized) sense of ourselves as all being free and equal moral persons. For all or almost all of us—perhaps even for the aspiring champion killer —this portentous attitude is deeply embedded in and cannot be extricated from our affective and emotional make-up. This deep strand within our motivational make-up is manifest in our disposition to demand that others treat us as free and equal persons and in our disposition accede to the similar demands of others. This motivational strand is the crucial counterweight within our respective evaluative considerations to the radical diversity of our personal goals and aspirations. Moreover, again as I understand it, the whole enterprise of public reason is only envisioned as being conducted among those whose evaluative considerations include this deep internalization of a sense that we are all free and equal moral persons.

If anything like this understanding of Gaus’s position is correct, a slew of further problems emerge. Can those of us who are within the circle of internalizers justifiably enforce even the most basic liberal principles or constraints—such as the constraints against unprovoked killing—against agents who have not themselves internalized the sense that all human beings are free and equal moral persons? Are liberal internalizers in any sense more justified in enforcing such basic liberal principles against non-internalizers than those non-internalizers are justified in their violation of those principles? When the internalizing Peter Pan defends himself against unprovoked attack by Captain Hook (whose motivational make-up is not structured by a sense that persons are all morally free and equal) is Peter’s defense in any sense more justified than Hook’s yet more determined attack? Can we consign all these inquiries to the ash-heap of child-like questions by plausibly insisting that the motivational structure of at least almost all human beings does in fact embody the sense that we all are free and equal moral beings?

Gaus points to Locke on toleration as a crucial moment in the development of liberal thought—perhaps even (as Gaus sees it) grown-up liberal thought. But, in the idiom that we have been employing, Locke’s central claim was not that we have all at least implicitly come to have a sense of ourselves as being free and equal moral persons. Rather his claim was that we are free and equal moral persons.

Consider whether the activities of Grand Inquisitors may justifiably be resisted. Locke thought that a Grand Inquisitor could justifiably be suppressed because his prospective victims were free and equal moral persons, not because some tendril of respect for persons wound unnoticed through that Grand Inquisitor’s evaluative considerations. Of course, Locke (or others) must then bear the burden of explaining why one should affirm such a morally portentous fact about human beings and of explaining why a significant part of the import of this fact is that freedom is to be honored and that infringements upon freedom are to be challenged. Taking up the burden of that project seems to me to be more promising and potentially rewarding than searching for a convergence of reasons propelled by persons’ given evaluative considerations.

Notes

[1] To avoid complicated formulations, I write as though there is a single classical liberal position. Gaus would presumably say that a range of distinct classical liberal positions are within the eligible set. My guess is that he would not locate a hard-nosed libertarianism that rejects all coercive redistribution within the eligible set.

[2] I say “given” to convey that these considerations are not themselves subject to any normative test or filter.

Gerald Gaus has presented a vision of the liberal order that proposes to move liberalism from one position among many alternative sects within political philosophy to its rightful place as providing the framework for the public discourse over the “good society.” It is a welcome move, away from the various claims of specific visions of justice, toward one that focuses on the institutional structure and rules of discourse that permit an ongoing and uncoercive conversation in the polity over substantive claims of justice. But Gaus’s vision of a liberal order is not limited to merely a sophisticated argument for “live and let live” or “agree to disagree” common-sense rules of discourse in a world of diverse value systems.

F. A. Hayek in The Road to Serfdom argued that there are severe limits to agreement in democratic order. We can only forge an agreement over general rules, not specific values. When we press for democratic action on specific values, we invite social conflict rather than social cooperation. Part of Hayek’s argument as to why socialism would disappoint and would be inconsistent with democratic society was that it required the democratic process to produce an agreement on specific values that it is constitutionally unable to produce.

Liberalism, Hayek often stressed, is a political-legal philosophy on what the law should be, while democracy is a mechanism for the determination of law. The rule of law is a question of the procedural rules that apply generally, not about substantive outcomes of any particular case. Hayek in The Constitution of Liberty attempted to develop this “generality norm” consistently through a variety of public policy applications. Law is to be contrasted with privileges. James Buchanan has developed this argument further in Politics By Principle, Not Interest. The result is a political philosophy that is non-discriminatory. It is about rules of the game and their enforcement in a fair and impartial manner.

I read Gaus’s argument for public reason liberalism as in this same spirit as the work of Hayek and Buchanan, but directed more concretely to the literature in modern liberalism. Both Hayek and Buchanan found great promise in the early work of Rawls on rules and the idea of justice being limited to the general rules precisely because we could never agree on social justice as resource distribution. It is important to distinguish between resource egalitarianism and analytical egalitarianism. Hayek and Buchanan are analytical egalitarians and want to find a framework of rules that is consistent with a non-discriminatory view of politics. The Rawlsians moved away from this general framework and argued for resource egalitarianism as necessary for social justice.

Gaus’s puzzle is how we can live better together in a world of diverse opinions and beliefs. The probability that an agreement can be reached over issues of religious belief, distributive justice, and the uses of property is highly unlikely. Mature and reasonable actors must engage in a public discussion on the nature of a society of equal individuals that tolerates difference yet secures stability.

The question that I have is whether we can get a workable social order based on toleration that does not respect private property and the persistent and consistent application of that principle. In other words, we have to determine which questions are part of the general framework, and which questions represent the diversity of opinion that can exist within the framework. This is important to sort out in advance, because the sort of public reason liberalism that Gaus envisions requires a distinction between agreement and acceptance of practices. And if that is the case, then don’t we need a robust theory of liberalism to help determine the rules that govern the general framework? Don’t we need to sort out questions of the scale and scope of government prior to its establishment, so that we can establish that general framework?

The rules that govern property are foundational institutions in the “good society.” Property rules provide the institutional basis for toleration. Democratic discourse must exist inside of a liberal framework of rules. In order to live better together, the general framework must not only support, but encourage, that the gains from social cooperation under the division of labor be realized. From this perspective, the greater productivity of social cooperation makes possible peaceful coexistence among diverse peoples. Without the mechanisms of wealth creation, the social order would break down into a struggle for resources.

Resource egalitarianism results in conflicts, whereas analytical egalitarianism provides the framework for the reconciliation of those conflicts. Treating people as equals provides a useful starting point for social philosophy, but following Buchanan, any discussion of the rules of the game must also include an examination of the strategies that the various players will play given those rules. In other words, abstract discussions of the “good society” must be made more concrete by an examination of the interaction between rules and strategies within rules. The rules that constitute the framework must be general and equally applicable so that strategic opportunism is minimized. My sense is that the persistent and consistent application of this perspective would give more economic content to Gaus’s public reason liberalism. Economic liberalism is not a sect within the range of possible economic policy views; it is instead a framework for economic interaction within the “good society.”

There may be many ways for people to live, but there are many fewer ways for people to live peacefully and prosperously. Wishing doesn’t make it so when it comes to economic reality. Utopia is not an option, even if philosophers develop sophisticated arguments for utopian systems. This message is harder to get across than it should be. Gaus’s straightforward argument for limiting the claims of justice to the procedural rules that constitute the framework for society is welcomed. As I read his work, he is continuing the argument laid out by Hayek and Buchanan and in contrast to the Rawlsians (though not necessarily Rawls). But if you take the idea of non-discriminatory politics (and law) seriously, then the scope of economic policy will be far more restricted than is currently imagined. Liberalism as the framework for the “good society” does result in an economic liberalism that can only be violated at the expense of the framework itself.

Let me begin by expressing my deep appreciation to my three good friends, Richard Arneson, Eric Mack and Pete Boettke for thinking so deeply about my short essay, and offering such thoughtful reaction essays.[1] A number of fundamental issues were raised about the type of view I offer; as I know only too well, even beginning to adequately deal with these matters requires quite a long book. At this point, I shall simply try to carry on the conversation by addressing a few of the many important issues they have raised.

Before turning to more philosophical matters, let me briefly remark on a historical point. As Arneson rightly points out, the sort of view that I develop owes a great debt to John Rawls’s work—Arneson in particular points to Rawls’s later doctrine known as “political liberalism.” Mack also sees the view I am offering as “a recently blazed path.” My own understanding is that the type of account I am articulating extends much further back in the history of social and political philosophy. Rawls’s pathbreaking essays in the 1950s, as well as the contemporaneous work of Kurt Baier and Peter Strawson, have been key inspirations. And, crucially, as Boettke stresses, Hayek is a towering figure who showed us that free and beneficial social cooperation is structured by social-moral rules that have evolved in a social order. It is hard to overstress Boettke’s point that Rawls and Hayek are not, as so often depicted in contemporary philosophy, diametrical opponents (once again giving way to the “egalitarian-libertarian” frame), but involved in a common project of seeking to understand the nature of mutually cooperative practices among free and equal participants. Both stress the fundamental importance of the basic framework of rules and institutions. Going further back, many of the themes I develop are present in Hegelian thought about ethical life and the general will and, most importantly, the view derives from critical parts of the social contract tradition that have been almost entirely read out of it by most contemporary interpreters. Hobbes, Locke, Rousseau, and Kant all recognized that individual convictions about social morality and justice conflict, and (at least in normal circumstances) a free and mutually beneficial social life requires that we abjure private judgment and appeal to public reason about the requirements of interpersonal morality and justice.

The insight of the social contract theorists was that, when normal individuals reason as well as they can about justice, they disagree. As Hobbes put it in chapter V of Leviathan, in a dispute each individual sees her reason as right reason. In a typically Hobbesian understatement, he insisted that anyone who seeks to resolve a dispute by insisting that “I have the right answer because I’m convinced that I’ve thought things through correctly,” reveals her lack of reason by her very claim to it, and so is unsuited to human society. Our dispute issues from the conflict in the use of our reason—it cannot be resolved by appeal to the superiority of mine. Only a set of mutually acceptable rules and institutions can resolve our disputes in a way that acknowledges that we are only one among others who have an equal claim to decide what their obligations are.

Arneson, joined by many others, wonders whether there really can be rational disagreement. If people were fully rational, they would, it is thought, agree about the requirements of justice; so the disagreement must come from irrationality. This is a complex issue with which recently I have tried to deal.[2] One thing we must do, though, is to distinguish two views. One maintains that to say a person is rational simply is to say that she has got things right—as Arneson says, she “correctly perceives the reasons there are.” If one further supposes that there “are” the same reasons for all, then this correct perception must be the same for all (no perspectival differences in perception are allowed here). The claim that full rationality leads to agreement is thus simply deduced from the definitions about rationality and reasons. This is one philosophical theory of rationality, but it is not relevant to the worry about rational disagreement that was the pressing problem for philosophers of public reason from Hobbes to Rawls. Their problem—and our problem—is that using the powers of human reason the best we can, and even drawing on the best information available, we still disagree. As far as we can see, experts employing their human reason in magnificent ways (Arneson, Mack and Boettke) disagree about these matters.

Mack, for example, holds that classical liberalism is the obvious best response to reasonable disagreement. It alone, he says, seeks convergence only on means, and does not impose shared substantive ideals. But this, of course, is precisely what Rawls claims for his own view—the only shared end it requires is the end of justice. My good friend Eric’s metaphysical convictions notwithstanding, the twentieth century has shown considerable, and I think, quite reasonable, skepticism about a natural right to property. Certainly the history of twentieth century philosophy and, indeed, politics, reveals that the overwhelming majority of political philosophers, economists, and citizens have held that anything approaching a laissez-faire market system is unjustifiable to the disadvantaged. On the other hand, I think Boettke is entirely correct that we have compelling grounds for concluding that rules of private property are essential for living together in a peaceful and mutually beneficial way. But there is a wide range of reasonable views about what those rules should be. The rules of property are both the source of a mutually beneficial social life, and a source of social and moral disagreement. Different property practices—different rules of the game—are endorsed by different reasonable persons.

In most matters, reasonable disagreement is not a deep concern; we can agree to disagree, or decide not to believe anything until we concur. And nothing I say is a bar, as perhaps Mack thinks it is, to the essentially descriptive and intellectual project of moral philosophy that seeks to discover the moral truth. To be devoted to discovering the moral truth, and even to believe that one has arrived it, is not objectionably sectarian (in the end, one sect certainly could be right about the moral truth, as it may be about God’s will). But the practice of social morality is not the same as moral philosophy understood as the search for the truth (nor is the study of social morality a “meta” study of moral philosophy understood as the search for the moral truth; it is a different domain of inquiry, though it does refer to moral philosophy and has views about its relevance to a justified practice of social morality). In the practice of social morality and in politics we not only disagree, but we demand that others act justly (“I have a right! You must not do this! Stop!”) and we are very apt to coerce them when they do not. The role of social morality in our lives is to adjudicate our claims—the claims of people whose reason leads them to disagree about what their claims are. The real problem for real human social and moral life now arises: what are we to do? Let us think about three stages in answering this question.

(i) The confident sectarian answers: “There is no problem, for my reason is right reason, and so my moral philosophy has revealed the truth, and only it specifies justified demands; those not confirmed as best by my reason are bogus.” Arneson and Mack are clearly attracted to this, the quintessentially sectarian response. The academic study of moral philosophy sets itself up as the source of uniquely correct moral legislation for all. This is the target of my essay.

Arneson thinks that it is a “moral imperative” that those on the side of rationality and moral truth should prevail and rule others, though on consequentialist grounds he thinks this should be rule with a light hand. Mack appeals to moral truth to show that the classical liberal way of living together peacefully without ruling others is the uniquely correct one and it should be imposed. I believe that the costs of this sort of moral sectarianism are much too high. It assumes a moral authority over others and typically a license to coerce them granted by appeal to the self-confirmed superiority of one’s own reason; it fails to sustain the moral emotions and reactive attitudes characteristic of our moral practices; and it transforms social morality from a device for obtaining a freely ordered social life into a sectarian creed that aggravates conflict. Under its influence democratic politics becomes, as we have witnessed, a war between perceived good and evil.

(ii) So suppose that the maturing sectarian allows that there is at least a significant group of others who employ their reason in ways that are worthy of respect even if one believes they have “got it wrong.” (One remains convinced that one’s reason is right reason.) Once this group enters the scene so will the range of justice, for it is a characteristic of the most advanced reasoners that they have wide disagreements. Think of moral and political philosophers and the range of their views. (In contrast, most common folk are fairly conventional in most of their moral views.) Arneson is worried about having to accept the input of “the Christian fundamentalist” into justified morality (more on that much-maligned fellow anon), but most of the concessions to the range of justice are already made even if we impose high standards (say, Kohlberg stage five or six reasoning). All the views mentioned in my essay are already on the table, as are a wide variety of moral beliefs based on very sophisticated natural theology and reformed epistemology.

(iii) To be sure, at some point any public reason view must draw a line, determining that some person is not good willed (she just wants to kill, kill, kill!), or simply has no reason to endorse our social morality (perhaps she is a psychopath). Arneson and Mack press where to draw the line. As a preliminary, let me say that I do not think that we do best to start with hard cases, for there will always be hard lines to draw. Our first question in understanding our shared moral lives is how to live with those whom we see as obviously good-willed (they want a shared moral life with us) and rational enough to be fellow moral persons, with sane and intelligible (even if we think quite wrongheaded) moral views. If we can make headway on that problem, we will have made progress indeed, even if we have trouble drawing lines about who is in and who is out. One temptation that we must avoid at all cost is the notion that, if we must draw a line at some point, and if we will have trouble doing it, we might as well draw it around our favored sectarian doctrine. That is very much like saying that, since we cannot respect creeds that are devoted to virgin sacrifice and are uncertain about those that employ hallucinogens, we might as well only respect our own religion.

So where to draw the line? Is the belief that the Bible is the Word of God obviously nutty in a way that a philosopher’s appeal to natural rights, the realm of non-natural moral facts, or his “moral intuition” is not? All are about non-natural entities, and I confess significant problems making sense of any of them. The incredibly smart economist Ken Binmore reports that moral philosophy is overflowing with “Humpty-Dumpty reasoning” and that Kant’s corpus in particular is simply endless obscure prose that says nothing sensible.[3] Apparently the moral philosophers are out with the Christian fundamentalists. Our own views—even the views of very sophisticated reasoners—about what is “crazy” are all too often the result of our preexisting frames, our disputable suppositions, and our own cognitive and normative biases.

When we do dismiss someone as beyond the pale—that we simply cannot reason with her about our shared moral life—we ourselves incur great moral costs. If we cannot show that she has reasons to endorse moral rules, the excluded is in many ways outside our moral community. We cannot attribute to her reasons to comply (even should we think, on the basis of a metaphysical doctrine, that there are reasons that apply to her), and so the normal moral emotions and sentiments are undermined. Relations of trust are at best uncertain, and so mutually beneficial relations are jeopardized. Can we protect ourselves against the philosopher’s beloved case, one whose life is based around the thrill of murder and plunder, who has no sufficient reasons to think this is wrong, and so who feels no guilt or remorse? Of course we can, but surely she is an alien other. Are we convinced that, when it comes down to such an intractable conflict with those lacking good-will or reason that we have good reasons for what we do? From our own standpoint of course we can assure ourselves, but we should not suppose that we are giving her reasons, or sharing a social-moral life with her. Whether such people are much more than limiting cases, and what sort of reasons they may really have, is on ongoing research topic in moral psychology, but whatever the results we know that they are not full members of our moral community.

Notes

[1] My thanks to John Thrasher and Kevin Vallier for discussion of these matters.

[2] See my Order of Public Reason (Cambridge: Cambridge University Press, 2011), section 13.

[3]Ken Binmore, Natural Justice (Oxford: Oxford University Press, 2005), pp. viii, 37.

Suppose we are convinced by Gerald Gaus’s proposal for a nonsectarian liberalism and resolve to form a political society on this basis. As I understand the proposal, we are to rank proposed political orders from the standpoint of each reasonable person in society. In carrying out this enterprise, we are urged not to be narrow-minded in deciding who is to count as “reasonable” for these purposes. Maybe we should say that each ordinary, noncrazy, nonretarded person who is not obviously bent on evildoing should qualify as a reasonable person whose views should not be ignored or brushed aside in the ideal theoretical construction of the just society. We then consider the set of proposals that is acceptable from the standpoint of every reasonable person. Maybe we can find uncontroversially reasonable ways of whittling down this set, but as a start, we should say that it would be illegitimate to impose a political order that is not acceptable from the standpoint of every reasonable person.

What makes a proposal acceptable from any one reasonable person’s standpoint? We cannot let each person from her own reasonable standpoint decide how nice the proposed political order must be to qualify as nice enough or acceptable. Some viewpoints that are reasonable by the standard we are employing will be lax about what counts as good enough and some will be very picky and finicky. Our political theory should not give undue weight to the views of the picky.

So, what is “acceptable”? One idea would be to say that a proposed political order counts as acceptable from your standpoint if you regard the outcome of having that order as morally more desirable than what would ensue from living under no political order at all. But this move privileges the baseline of anarchy. If someone objects that having any government at all is morally unacceptable, or if people cannot unanimously agree on any movement from anarchy, then we end up saying that no political order should be instituted. But it seems arbitrary to privilege anarchy in this way, and many of us will regard having no government at all as a horrible state of affairs.

I’m genuinely puzzled as to how a nonarbitrary baseline can be devised, in order to carry through Gaus’s project. Notice that once we are ranking different political orders, there is no good reason to presume that inaction should be preferred unless action can command unanimous assent. Some people regard with horror a minimal state, which does not enforce the duties (that some of us are sure) we all have to provide decent opportunities to all regardless of people’s initial circumstances in life, and some people regard with horror a nonminimal state, which violates (what some of us are sure are) sacred and inviolable individual property rights in order to redistribute resources and goods to the disadvantaged. In the face of this disagreement, if your political theory concludes that the nonsectarian solution is to have the minimal state, since reasonable people do not agree that the proposed enforced redistribution is morally acceptable, you have slipped an arbitrary baseline into your theory. I’m morally certain that Gerald Gaus does not make that crude mistake, but I am also genuinely puzzled as to how to solve the baseline problem within his theory.

I want to respond briefly to Jerry Gaus’s “On the Ins and Outs of Public Reason.” In doing so, I will redouble my efforts to avoid even the appearance of that ultimate of dialectical wrongs, viz., having “metaphysical” commitments lurking somewhere in the background of one’s remarks.

Beyond my attempt to provide a reasonably sympathetic account of Jerry’s enormously complex and sophisticated—but certainly not “metaphysical”—system, there really are two basic suggestions within my response essay, “Peter Pan Strikes Back.”

The first suggestion was meant as something like a friendly amendment to Jerry’s project. My suggestion here was that a particularly plausible response to the radical diversity of goals and aspirations that we find among people is the resolution to eschew regimes that elevate any favored end to the status of a social outcome that the state is authorized to require individuals to serve. The fundamental alternative to such an outcome-mandating regime is a regime in which each agent is protected in the pursuit of her own goals and aspirations except insofar as she pursues those ends by means that preclude others from pursuing their own goals and aspirations.

If we take seriously the radical diversity that Jerry invokes, we will gravitate toward a legal order that proscribes such means rather than one that conscripts people into the service of ends they do not share. The point of the friendly suggestion was that a means-proscribing regime is qualitatively different from other forms of liberal regime and, hence, such a classical liberal regime seems to have a step up on other regimes that Jerry also places within the range of justice.

This is not to say that there is one unarguably best specification of those forbidden means. Still each candidate for a reasonable specification would define a position within the narrower range of classical liberal justice. So, classical liberalism will still have a leg up on other forms of liberalism.

Jerry’s response seems to be that my suggestion is good and well except that it does not point uniquely to classical liberalism because “the only shared end” that Rawls requires “is the end of justice.” Rawls can completely accommodate my suggestion and his liberalism is not classical; hence my suggestion does not establish a presumption on behalf of classical liberalism.

My response to this is that Rawls’s “end of justice” embodies strong demands for egalitarian outcomes with respect both to opportunity and income. Hence, that “end of justice” does constitute a demand that, despite their great diversity of goals and aspirations, everyone be required by the state to serve certain particular substantive ends.

Hence, Rawls’ non-classical liberalism is not a counterexample to my claim that only some species of classical liberal takes seriously the diversity that Jerry himself insists upon.

My second basic—and less philosophically friendly—suggestion was that it is much easier to see how Gaussian public reason will avoid validating really nasty activities—like the activities of a Grand Inquisitor—than to see how it will validate the suppression of those nasty activities. The prospective victims of the Inquisitor will exercise a veto against the validation of Inquisitorial endeavors. But won’t the Inquisitor all too symmetrically reasonably exercise a veto against the suppression of those activities?

The answer to the last question depends upon whether or not the Inquisitor really has reason—ultimately based upon his evaluative considerations—to favor his Inquisitorial activity. That turns out to be a very complicated matter within Gaus’s system. But it sure looks as though someone whose Inquisitorial project is at the core of his motivational structure will have reason (as Gaus understands it) to pursue that project. So that aspiring Inquisitor will exercise a veto against the suppression of that endeavor.

So I ask again a question like the ones I posed in my initial response. Is there any sense in which the prospective victims of the Inquisitor are more justified in suppressing the Inquisitor than the Inquisitor is justified in resisting that suppression and carrying on? I really think that Jerry gives no answer to this question in the final paragraph of “On the Ins and Outs of Public Reason.” For there he simply says that the prospective victims have their reasons to suppress the aspiring Inquisitor and hints that it is a matter of ongoing research whether the aspiring Inquisitor has reason to disfavor that suppression and to carry on.

But, first, isn’t it clear that the deeply committed Inquisitor does have reason to push on with his cherished endeavor? And, second, isn’t it clear that, on Gaus’s own understanding, as long as the committed Inquisitor does not really have reason to favor the suppression of Inquisitional activities those victims have no moral authority to protect themselves from the hot poker and the rack?

My good buddy Jerry does say that the prospective victims would know that the Inquisitor and his equally dedicated assistants were “not full members of [the victims’] moral community. But the Inquisitor and his buddies would also know that their unwilling victims are not full members of their Inquisitorial community.

Gaus’s vision of public reason liberalism is unique in that it is grounded in a rational actor approach, but doesn’t equate human rational actors with robot rational actors, as is often done in economics and philosophical literatures. The puzzle for such robot rational actors is how disagreement would ever emerge in their interactions. The agreement theorem of Robert Aumann is widely accepted by decision theorists. Mature and rational actors will not have to agree to disagree because if they are truly rational they will not disagree. Bayesian updaters will converge on an agreement.

But what about a world where the actors do not share common knowledge? What about a world where individuals do not mechanically update, but instead must interpret the meaning of the dissonance between their expectations and their realizations? What about a world where human actors exhibit weakness of will, or possess conflicting desires that they must choose between? Actors in this environment will form not abstractly rational expectations, but theory-consistent rational expectations that guide their decision making within an uncertain world.

Elinor Ostrom’s work on real constitution making from the ground up in a variety of social circumstances and over time is grounded in what she calls “a behavioral approach to the rational choice theory of collective action.” In short, her work leads us to engage in rational choice theory as if the choosers were humans, and institutional analysis as if history mattered. Her work is to be contrasted with idealized constitution making that is abstract and exogenous to the social system for which it is intended to provide a structure of governance.

Enter Gaus’s philosophical discussion of the order of public reason, which I see as an effort to have rational actors that reflect not robots, but human beings who are forever caught between alluring hopes and haunting fears, yet still come to a set of rules that enable them to live better together. This requires real institutions that are grounded in the lived experience of those who agree to them so they possess legitimacy. Institutions cannot just be put in place wherever and whenever we want. There are constraints to the imposition of rules. In a very significant way, as Elinor Ostrom’s work demonstrates, rules are only rules if customary practices already dictate them to be so. Rules that do not build on the already existing de facto rules will not stick. Rules that are neither legitimated nor enforced are worthless. Constitution making from the ground up raises serious challenges to the transplanting of rule systems to alien environments from the top down.

There is a radical diversity of social rules that produce cooperation among heterogeneous rational human actors. But this diversity often belies an important homogeneity in function. It is important to distinguish between rules in form (which have great diversity across cultures and over time) and the function the rules serve. Consider the rules that govern resource use in a community. We can have rules in form such as private property and collective property and all sorts of mixes in-between. But the function that these rules must serve is more uniform, and they must do the job that private property would do if it was the form in use. They must (a) limit access to the resource, (b) assign accountability to the user of the resource, and (c) establish graduated penalties for violators of the rules.

Real rules about resource use, exploitation, transfer, and destruction must provide the function of limit, assignment, and penalties. For social cooperation to be realized there has to be wide-scale agreement on this function of rules. Not only will social cooperation be impossible without agreement on the limiting, accountability, and penalty/enforcement function, but the desired social stability will break down.

Kevin Vallier translated the position I tried to carve out in my original reaction essay to making a distinction between “rules we disagree about” and “rules that we disagree within.” I am comfortable with that language. This distinction takes Buchanan’s categories of pre- and post-constitutional levels of analysis and applies them to this case of political and social philosophy. My point is that while we may disagree about the form of rules of property use, ultimately social order turns on the legitimacy and enforcement of the function of rules that mimic what a private property system would produce.

Under a private property regime, the form and function are most directly aligned and the ambiguity is the least on questions of how, what, and for whom. It is property rights that give content to our ability to express our disagreements about beliefs and opinions. Freedom of the press, for example, follows from freedom to own the means of production involved in the press (paper, machines, etc.). Effective human rights, in short, are ultimately property rights. They must be a part of the framework—rules that we disagree within. Even if the philosopher doesn’t want to admit it, the conditions of our economic existence require that the resource egalitarian must yield to the analytical egalitarian. If not, can we ever hope to realize the gains from social cooperation under the division of labor, and afford the social stability that public reason liberalism promises?

Once again, I must express my gratitude to Dick, Eric and Pete for reflecting on the view I am trying to develop, and helping me appreciate where worries occur (and, hopefully, where they don’t).

Unlike Arneson and Mack— and probably eighty percent of the philosophical community—I think that the problem of drawing the precise lines (either between the ins and the outs, the reasonable and the unreasonable, or even the far more important line between eligible and ineligible moral rules) is not the truly fundamental issue. I spend a lot of time on these problems in The Order of Public Reason because I have learned over the years that philosophic audiences focus on them like a laser beam. And, to be sure, they are of interest, and are even necessary to flesh out one’s views. However, even if I am wrong about precisely where the lines are to be drawn—and of course on some, perhaps many of the questions, I must be wrong (hopefully, though, not on all)—the crux of the basic idea of my essay remains. We are faced with a range of plausible conceptions of justice. On any reasonable answer to these line-drawing questions, we will confront sensible and good-willed people who have deeply opposing views about justice—that is, about how to structure our social life. What do we say to our neighbor, our colleague, and the normal stranger we meet everyday in the Great Society, upon whom we make a variety of demands, and to whom we very often threaten punishment for noncompliance? We cannot plausibly say that she is subject to some rule because we all agree that it is optimal justice, because we do not agree. And I don’t think we should say (or think) “I’m right and you’re wrong, so obey!” You and I—Eric and Jerry, Dick and Jerry, Eric and Dick—have to decide what it means for us to share an ordered social life, despite our fundamental disagreements in a way that does not depend on simply the use of power by those who are now in the ascendancy. I firmly believe that we have terribly good reasons to treat the overwhelming mass of our fellows as free and equal moral persons and citizens. We wish to know what a free society among equals would look like. As I said, if we could make progress on this “easy” case, we would have made tremendous progress.

Arneson raises a complex issue of the no justification point—when, essentially, a person prefers lack of moral coordination to coordination on some moral rule that she really does not have sufficient reasons to internalize. I’m not sure that I can say a great deal that is helpful here, but let me recall a point on which Rawls and I concur: a justified morality among free and equal persons is a sort of Nash equilibrium. A free moral order is one in which good willed people, drawing on their distinct evaluative considerations, conclude that acting on our morality is the best response to others doing so. Thinking along these lines will lead us to better understand how to think about baselines and “no justification” points. If a rule of our social morality is below a person’s “baseline,” her best response to the moral actions of others does not involve her also adopting the moral stance, but perhaps a prudential or narrowly sectarian one. This, of course, is not even the beginning of an answer, perhaps not even a sketch of a beginning, but it suggests an idea almost totally absent from current social philosophy: a free equilibrium on the moral rules ordering social life.

Enter Boettke, whose comments have taught me a great deal about my own view. Why should we think that there will be any equilibrium? Why won’t we be left with, as philosophers are wont to press, no equilibrium at all—a null set of moral rules on which all can freely act? Boettke is entirely correct that, although specific moral rules vary from culture to culture, and we often disagree on what is the best, the overwhelming majority of rules are ways to solve recurring and basic problems in human societies. There is a much deeper consensus that these matters need to be settled than on how they should be. That idea, indeed, is the root of my account. All societies need to settle social-moral rules of property, personal integrity, individual liberties, and trust norms, though they may go about doing it in rather different ways.

One way of thinking about the range of justice is that, in opposition to much traditional moral and political philosophy, social and political morality is best analyzed as an impure social coordination game (among rationally bounded beings with deep disagreements) that has multiple equilibria. We seek a free moral equilibrium but disagree about the preferred one. Social and political philosophy can help us identify the set of acceptable equilibria but it is hopelessly utopian (or, perhaps, frightfully dystopian) to think it can identify a uniquely acceptable equilibrium. How social orders come to settle on one of many reasonable equilibria is a fundamental issue within social and political philosophy that is, thankfully, once again getting the attention it deserves, though not often from political philosophers. The work of Ostrom, Cristina Bicchieri, Peter Vanderschraaf, Ken Binmore and Herbert Gintis, as well as Boettke’s own work, is tremendously insightful in this regard, and we all can learn a great deal from it.

To achieve a free moral equilibrium involves, as Boettke suggests, a sort of moral constitution making from the ground up. The rise of justified moral rules and conventions are typically the result of the actual choices of imperfectly, boundedly, rational individuals, converging on an equilibrium that allows a free and productive social life.

Now to Grand Inquisitor types. Let me try one last time to say something that is at least helpful (I’m worried that I cannot). Focus on a simple case. Suppose that we have been able to “draw the line” in such a way that we can say we have two groups, Full Members (of our moral practices) and Complete Aliens—those who are not in any way members. Between the two, I am supposing, there is no convergence on any social-moral rule that provides a solution to what I have called our moral coordination problem (a radical supposition indeed given what I have just said about the enduring problems of social life, but let’s go with the philosophical stipulation). With Full Members we can establish a rich set of free moral relations and mutually beneficial interactions, we can sustain the moral sentiments, and we can achieve trust through a set of social-moral rules that all normal participants have reason to endorse and act upon, conditioned upon enough others doing so. When I demand that a Full Member must do, or must not do, something, I am asserting a sort of moral authority over her that she has sufficient accessible reasons to endorse. And we thus have the foundations for the practice of moral responsibility.[1]

Now consider the Complete Alien. We must assume that the Complete Alien simply has no sufficient reason to endorse any of our moral practices, and we have insufficient reason to revise ours to accommodate him. With such a person—at least the quintessential case—none of the normal moral emotions, reactions, or presuppositions hold, and trustful, mutually beneficial relations are apt to be impossible. Our relations with the Complete Alien are thrown back onto our own first-person convictions about what is the moral thing to do, convictions that have no authority over him. We must act on our own moral or even prudential convictions without claim to moral authority, as the Complete Alien will act on his. If the Complete Alien has any “veto” over our actions, it is only a veto over his inclusion in our moral practice, and our claim to authority over him. The Alien certainly has no veto over our moral relations with each other, nor does he have a right to enter our moral practices on his own terms.

I do not see why there is a problem with “suppression” of the Complete Alien’s “nasty activities.” We are now talking about the legitimacy of coercion, not moral authority, responsibility, and the moral sentiments. Because we have supposed that the Complete Alien is entirely outside our practice, the rules of social morality simply do not apply to him, and that would include the moral rule against unjustified coercion; we can protect ourselves as we must. Mack worries, I think, that this seems too symmetric: he will act on his convictions, which seem justifiable to him, as we will on ours. But aren’t we the justified ones? (Certainly— what else could we think?) But, if ex hypothesi, we are assuming that he has his own reasons and we cannot converge on justified social norms, then we and the Complete Alien have a conflict between what might be called two mutually exclusive systems of personal norms or personal social ideals, with no justified social norms to reconcile and adjudicate them. We do not have authority over the Nasty Complete Alien, as he has no authority over us; he has reasons based on his alien perspective to impose his alien ideals on us, and we have reasons based on ours to resist. That, of course, would be a type of moral anarchy (moral life without authority), and a great tragedy that we seek to overcome through a justified social morality.

This, alas, is just scratching the surface. Things get more complicated when others see themselves and us as free and equal persons, when we share some but few rules, and when we yet have sustained interactions. There are a host of matters to be thought about here (for example, when we would expect shared rules to emerge between them and us and when not?), and about the nature of legitimate coercion by the state towards semi-outsiders that I explore in the book (sorry to keep on making this excuse). I’m afraid, though, that we cannot profitably carry on the discussion in this forum. It probably needs at least a couple of beers to sort out.

Note

[1] For a fascinating study of the place of this authority relation in our attribution of moral responsibility, and what may be left of our normative relations with those who cannot make sense of it, see David W. Shoemaker, “Psychopathy, Responsibility, and the Moral/Conventional Distinction,” The Southern Journal of Philosophy, vol. 49, Special Supplemental (2011): 99-124.

I’m not sure how Professor Gaus’s nonsectarian liberal methods would deal with my religious fundamentalist. Consider a favorable case. Over a stretch of time a stable majority of voters in a democratic society brings about the enactment of a pretty good set of laws. They are consistent and coherent. In various ways they are deeply offensive to the fundamentalist. For example, they do not enforce the Biblical doctrine that homosexuality is sinful. Rather they require that if you operate a business, your hiring procedures may not discriminate against job applicants on the basis of sex or race or religious affiliation or sexual orientation. The fundamentalist appeals to political liberalism to show that the laws are illegitimate because they are justifiable only by principles that he reasonably rejects. In my view, this complaint is not justified, because the fundamentalist’s way of arriving at his political judgments is not reasonable enough.

In contrast, consider an unfavorable case. Over a stretch of time a stable majority of voters in a democratic society brings about the enactment of a set of laws based on a fundamentalist Christian viewpoint. The laws distinguish between heterosexuality and homosexuality on the basis of this Christian doctrine. Some citizens complain that the laws are unjust because they fail to accord, to a good enough extent, with the moral reasons there are that determine the content of ideally just state policies. In my view, this complaint may well be justified. Even though people who disagree all appeal to what is reasonable by their lights to justify their proposed public policies, and even though no one has a monopoly on good reasons, we are all fallible, and it is very hard to see whether one’s judgment that one is in the right is soundly based, nonetheless there is such a thing as being in the right and there are many situations in which some people have the better argument and, from the standpoint of justice, it is better if their view prevails and is enforced.

Gaus objects that it is to no avail to appeal to the idea that there are objectively better and worse reasons. Appeal to “the reasons there are” is beside the point, because no one is in an epistemic position to say definitively what these are. We imperfect and fallible human reasoners inevitably have partial and somewhat distorted understandings of what is good and true and right. So you cannot win the moral right to use state power to carry out your favored ideology by saying “my view is true.”

The problem is that the burdens of epistemic judgment to which he is appealing apply in the mathematical and empirical realm just as much as in the moral realm. We are fallible, we make mistakes, we suffer from various forms of proclivities toward cognitive error, self-deception, rationalization, and the like. This is all true, but does not prevent its also being true that at any given time, some people do better at mathematical and empirical reasoning and inquiry than others, and we do better to bring it about that in choosing personal courses of action and public policy we follow the best guidance available. (We tend to use the honorific word “science” as a label for whatever set of procedures are the best we have at present for carrying out mathematical and empirical inquiry in a way that is best calculated to arrive at truth and avoid error.)

The comparison suggests a further point that is controversial but (in my view) sensible. Mathematical and empirical inquiry is hard, and we do better by deferring to experts. Moral inquiry is also hard, and we do better by deferring to experts. A democratic society will end up with better or worse policies depending on the good sense of the voters in their choices of experts upon whom to rely.

Many will balk at talk of moral experts on the grounds that empirical science has been spectacularly successful while moral science is in a shaky state. I agree that moral science is in a shaky state, but I deny that this eliminates the reasonableness of reliance on moral expertise and the claim that there are moral experts. One might compare the state of normative and evaluative and moral theorizing today to the state of natural science in the fourteenth century. Our scientific theories then were not very good, but there were still better and worse ways of going about empirical inquiry, and people who were doing it better and people who were doing it worse. The former deserved the deference of nonexperts.

Gaus may well object that the example of the Christian fundamentalist is a red herring. The relevant point is that the supposed moral experts disagree all over the map. So the advice to defer to moral experts is a nonstarter. I would respond that in so far as we really have no decisive reasons to embrace one rather than another of several moral views—utilitarianism, Lockean libertarianism, prioritarianism, and so on—we have no decisive reason to object to a government that consistently and steadily adheres to any one of the moral doctrines that is in the set of doctrines that might well be true for all we now know. This latitudinarianism only goes so far, and does not extend to having any good reason to accept as might-be-true-for-all-we-know a whole host of moral and religious worldviews that today contend for political influence. I would add that when it comes to real-world choices among policies, there is a lot of convergence among the policy recommendations of the genuinely reasonable moral principles when these are combined with epistemically responsible assertions about the empirical facts that bear on choice of public policy.

So maybe the main locus of disagreement between Gaus and me hinges on the best way to interpret the weasel word “reasonable.” Who qualifies as reasonable or reasonable enough? What are the reasonable-seeming views that according to our best current thinking might turn out to be true and are not decisively inferior to rival views, and so right now legitimately could be the basis for the public policies that a government enforces? I suspect that we would agree on drawing the line so that the Christian fundamentalist does not qualify, and the hard question is where exactly to draw the line.

I have really enjoyed and really benefited from this month’s Cato Unbound, “For a New Liberalism.” My only regret is that I have focused entirely on Jerry Gaus’s lead essay and Jerry’s responses to my responses and not taken up any of the very interesting ideas of my fellow respondents, Dick Arneson and Pete Boettke. Rather than try to make up for that lapse at this late point, I want to close my contribution with a brief statement of my understanding of the state of the disagreement between Jerry and myself. I hope to make clear to readers that there really is a nice, big, juicy, issue here.

If one is going to coerce another, one had better be justified in doing so. If one’s coercion will be performed under the aegis of a certain principle or moral rule, that principle or rule had better be justified. Let us suppose Alf is coercively suppressing Betty’s unprovoked killing of Alf. Alf had better be justified in his coercive suppression; the principle that unprovoked killing may be coercively suppressed had better be justified. We are all on board with these claims.

The crux of the dispute between Jerry and me is about exactly what sort of conditions need to be satisfied for Alf’s action or the principle or rule under which Alf acts to be justified. To put matters more precisely, the main dispute is about what sort of conditions have to be satisfied for Alf’s action or its governing principle or rule to be justified in a way that gives moral authority to Alf. Let’s proceed in terms of the justification of the principle under which Alf acts, namely, that unprovoked killing may be coercively suppressed.

Jerry holds that Alf will have moral authority to coerce Betty under the aegis of this principle only if this principle is justifiable to Betty, and it will be justifiable to Betty only if Betty has reason to accede to this principle. In addition and very importantly, Betty will have reason to accede to the principle only if good deliberation on Betty’s part would get Betty from her existing “evaluative considerations” (her goals, aspirations, commitments, and so on) to an affirmation of that reason.

According to Gaus, Betty can have reason to accede to that principle—and, hence, Alf can have moral authority to act under its aegis—even if Betty has not actually gone through the good deliberation that would get her from her evaluative considerations to the affirmation of that reason. Nevertheless, even though Alf’s moral authority does not depend upon Betty actually acceding to that principle on the basis of good deliberation from her evaluative considerations, Alf’s moral authority to coercively suppress Betty’s engagement in unprovoked killing must ultimately get its leverage from Betty’s evaluative considerations. If Betty’s evaluative considerations do not provide the basis for Betty’s acceding to that principle, Alf can have no moral authority to act upon that principle.

Suppose one thinks that there is reason for Betty not to engage in unprovoked killings. Different sorts of basis for there being such a reason can be offered. As I suggested in my initial response, one might think that the fact that other persons are free and equal moral persons provides each of us with reason not to engage in unprovoked killing. Alternatively, one might think that the reciprocal benefits from a ban on unprovoked killing provide each of us with reason not to engage in unprovoked killing. But notice that here I am speaking of there being reason for Betty to eschew unprovoked killing. I have not been speaking of Betty having reason in Gaus’s sense to forego killing. Indeed, it is easy to envision there being reason for Betty to eschew unprovoked killing (and to accede to the coercive suppression of such killing) without Betty having reason in Gaus’s sense to eschew unprovoked killing. For the roots for Betty acceding to that reason may not be growing within Betty’s evaluative considerations. (I think that Gaus himself allows that there could be reason for Betty to act or refrain from acting in a certain way without Betty having reason to act or refrain in that way.)

The crucial thing to note here is that there being reason for Betty to eschew unprovoked killing (or for her acceding to the principle that unprovoked killing may be coercively suppressed) is not dependent upon Betty’s evaluative considerations. I am not saying that the case for there being reason for Betty to eschew unprovoked killing has been presented here. I am saying that, if there is reason for Betty to avoid unprovoked killing, there being such reason does not itself depend upon Betty’s evaluative considerations. Recall, that this reason might depend on other people being free and equal moral persons. Or the reason might depend on reciprocal gains being available only among individuals who eschew unprovoked killing. Or so on.

Here, finally, is the possible payoff: Maybe Alf’s moral authority to suppress Betty’s unprovoked killing is grounded in there being reason for Betty to eschew such killing rather than in Betty having reason (in Gaus’s sense) to forgo such killing. Indeed, if there is reason for Betty to forgo unprovoked killing, perhaps we can even say that coercively suppressing that killing is justifiable to Betty; it is justifiable to her because there is reason for her—reason that applies to her—not to kill whether or not she has reason not to kill in Gaus’s sense.[1]

The central dispute between Gaus and myself is ultimately about whether (i) Alf’s moral authority to suppress Betty’s unprovoked killing rests on some normative truth that is not itself a function of Betty’s motivational structure—for example, that people should be treated in accord with their status as free and equal persons or that people should be treated in the ways that conduce to reciprocal gains—or (ii) Alf’s moral authority has to be rooted in Betty’s actual motivational makeup.

My claim against Gaus is that sometimes we can justify the coercive suppression of another agent’s conduct, such as Betty’s unprovoked killing or the Grand Inquisitor’s torturing, on the basis of there being reason for that agent to refrain from that conduct—even if that agent does not have reason in Gaus’s sense to refrain from that conduct. In the idiom of moral authority, one can have moral authority (albeit in a thinner sense than Jerry has in mind) to coercively suppress the conduct of another agent even if one’s moral leverage does not rest upon that agent’s motivational makeup.

The reason for my invoking agents like the Grand Inquisitor at earlier points in this conversation was—I now see—to suggest a general point about justified coercive action and moral authority for coercive action against certain sorts of nasty behavior. That general point is that such justified action and moral authority does not require the concurrence of the evaluative considerations of the agent who is subject to that coercion.

As I understand Gaus’s position, when a prospective victim of a nasty action sets out to justify morally his resistance to that action (or to justify his moral authority to resist that action), he has to ground his justification (or his authority) in the content of the nasty doer’s motivational repertoire. I believe that this is to look for the reason that morally justifies the resistance (and the authority of the resister) in the wrong place.

Of course, none of this is really the final word.

Note

[1] On these issues see Steven Wall, “On Justificatory Liberalism,” Politics, Philosophy, and Economics, vol.9 (May 2010) 123-150 and Gaus’s responses to Wall in The Order of Public Reason.

As happens in many philosophical discussions (or, I suppose, simply in many discussions), we seemed to have ended up where we started. Eric Mack and Richard Arneson are essentially once again pressing their cases for what I have called sectarian political philosophies, arguing that we must appeal to moral truth, or the truth about reasons, and we must discount the reasoning of some (perhaps many) as insufficiently enlightened when deciding what a free moral order would look like. I confess that I wish we had been able to have a conversation about the central claim that a plausible analysis of justifiable moral practices in a diverse society can only provide a set of eligible options, or can at most identify a set of possible equilibria on which a moral order of free and reasonable people might converge, a topic that only Pete Boettke, an economist, took up (in very helpful ways indeed). Why is it, I can’t help but wonder, that moral and social philosophers are so averse to thinking of moral orders in terms of a self-sustaining equilibrium of diverse and reasonable persons? As I have stated several times in these exchanges, be as strict about the boundaries of the group of “reasonable persons” as is plausible, and these ideas are still relevant and, I believe, helpful and enlightening in a way that endless and fruitless efforts to construct ethical theories identifying the moral truth are not.

Let me first turn to Eric’s “Final Words” (which I hope is just an early installment in an ongoing exchange). He writes:

“If one is going to coerce another, one had better be justified in doing so. If one’s coercion will be performed under the aegis of a certain principle or moral rule, that principle or rule had better be justified. Let us suppose Alf is coercively suppressing Betty’s unprovoked killing of Alf. Alf had better be justified in his coercive suppression; the principle that unprovoked killing may be coercively suppressed had better be justified. We are all on board with these claims.”

Well, that we are all on board with the claim that coercive suppression had better be justified is, I think, critically ambiguous with regard to two very different senses of justification. Although we need not engage in justificatory discourse to act with justification, it helps to fix ideas to focus on the case of explicit justification through discourse. Towards the end of his great Theory of Justice, Rawls remarks that justification is argument addressed to those who disagree with us. This type of justification genuinely addresses others: it seeks to take what seems to be a controversial claim, and show that those who disagree with us have reasons that they can grasp to endorse it. This type of justification seeks to show that those who disagree with us can draw on considerations that they can see—either readily, or at least with not more deliberative effort than we can reasonably expect of them. When we share a moral practice with others and see them as our equal co-participants we address arguments to them. We talk to them.

Now as I have stressed, there will always come some point at which another simply is so alien, or so defective in her rationality or moral sensibility, that we cannot talk to her in the sense of addressing a justification to her. Then I must act with justification in another sense: I think things through and, considering my set of values, convictions, and so on, I may well conclude that the thing to do is to go ahead and coerce the other. Although in this case too I act “with justification,” the moral relations between the two of us are transformed. The moral sentiments are greatly impaired, as is my standing to hold the other morally (though perhaps not legally) responsible for what she has done. What I have stressed is that, as a matter of fact, we are in the midst of a moral practice in which justification genuinely addressed to others pertains, that it is an immensely valuable practice that sustains social cooperation and interpersonal relations of trust, and we should do our very best to ensure that we live up to it.

Mack, perhaps, will say that when he asserts that it is simply a truth that all are free and equal he is identifying “a reason that there is” which applies to the other, so he too is in a way “giving the other a reason,” or at least pointing one out. To me, this type of reason talk is not talking to a person, but at her. It is admitted that the other, given as much deliberation as we can expect from her, could not grasp why this is a reason, yet it is said that there really and truly is a reason that applies to her, that if she were fully rational (i.e., more like us) she could see as clearly as we do but, alas, this reason is now quite invisible to her. I know that many philosophers (and those who can see auras) talk this way, and I don’t suppose that there is great harm in it, but I tend to think that it is just better to fess up and admit that we are not really addressing ourselves to her at all, but are simply acting as we see fit. I can’t help but see the additional claim that of course there really “is” a reason that truly “applies” to her as obfuscating (“It’s not just me, it’s reason talking here, so pay attention!”). Contrast two teachers in a first-year economics course. One comes in and gives his advanced lectures on new developments in economic theory. The other begins by looking at some general principles of microeconomics, and trying to show her students how they make sense, and what the first derivations from them are. In neither case does everybody get the point right away, and some may never get it. But in the latter case the teacher is addressing herself to her students; in the former, talking at them. If, on top of that, the first teacher insists that they all have reasons to accept everything he says since there are good reasons for it, he is just covering up the fact that he is talking to satisfy himself.

For the overwhelming number of cases, because we share a moral order with others who are sufficiently reasonable and good-willed, when we invoke morality to stop them from what they are doing we can address considerations to them. I noted in an earlier post that we should distinguish the analysis of a justified moral practice (a practice in which persons can talk to each other and sustain the rich personal relations that this allows for) from what we might call “moral philosophy strictly understood,” which applies highly controversial methods of inquiry to arrive at accounts of the reasons that there really are, what rights we really have, and what the moral truth really is. As Professor Arneson rightly says, there is in principle no more reason to worry about disagreement in moral philosophy than there is in science (though I must confess to being considerably less sanguine than is he about the Enlightenment’s conviction that, just as we are led to agreement in science, we will be led to agreement in philosophy. How many scientists think Plato got it pretty much right?). The worry arises not when a person constructs “his” theory (and I note that very often philosophers use the possessive when talking about the theories they accept, probably because given the number of adherents they are akin to personal possessions), but when he employs his theory as the basis of asserting an authority to instruct others how to live, and to hold them responsible for failing to submit. It is here, I think, that we must turn from moral philosophy to the analysis of what moral practices can be confirmed by justification addressed to others, by taking our activity as a form of talking to them rather than at them.

So to whom do we talk? To the “fundamentalist?” I am convinced that we run real intellectual and moral dangers in stereotyping the alien other, be he “the Christian fundamentalist” or “the Muslim.” We should be exceedingly wary of discussing that of which we academic philosophers are largely ignorant in general terms that blur together very different types of people. Like the rest of us, Christian fundamentalists are a diverse bunch, and they overwhelmingly affirm the basic social and political norms by which we live. If we must discuss a caricature, let us consider another sort of unreasonable person, whom we are more apt to find around the table in a philosophy department and who publishes in our refereed journals—the unreasonable environmentalist. Like Christians, environmentalists come in all types, but consider one who firmly believes that the earth has the property of “intrinsic value,” that this value is so important that it overrides any requirements of human life and, indeed, she is not interested in living with others on terms that they can see reasons for, but is, rather, convinced that the earth would be better without humans, and if she could she would take steps to rid the planet of this parasitic species. If we keep on filling in this story—she has converted herself into having a view of others that is consistent with all these convictions—it looks very much like there is no way to include such a person within our moral practice of genuine reason-giving. We simply cannot talk to her in justifying a common moral order.

To be included in a moral practice among equals that involves justification qua reason-giving, a person must have a strong recognizable interest in living with others in moral and social relations, must have a value system that is intelligible to the rest of us in the sense that we can see what she takes as reasons are at least relevant considerations to the question at hand, whose values fall within the recognizably normal range (for example, we can leave out of account monomaniacs devoted to counting blades of grass, compulsives, and so on), and who have sufficient reasoning powers to participate in our practices of moral blame, criticism, exhortation, and justification. That they have made silly mistakes does not exclude them—we certainly would not wish to deny admittance to act utilitarians or Scientologists, for we can still talk with them about acceptable and unacceptable ways of ordering our shared social world. Our moral practice—recall I am not talking about our moral philosophies—is a popular practice in which the vast majority of our fellows are bona fide participants who can be given reasons, even though we adamantly disagree with much of what they believe. That, I take it, is the great liberal insight. So we have indeed come back to the beginning, for I am still convinced that the urgent philosophical task is to reflect on the range of social-moral practices that are not oppressive and authoritarian, and so can be sustained by a free society of moral persons.

I’m sorry that Jerry Gaus thinks that we have merely been going around in a circle, because I have the sense that quite a bit of progress has been made in bringing into sharper focus some of the critical features of Gaus’s New Liberalism. I guess what I see as sharper focus Jerry sees as mere harping on the same misguided point. I want to use the next few paragraphs to continue to make explicit part of what is at stake between Gaus and those he describes as sectarian political philosophers. And I hope that this will not seem like harping on the same point—guided or misguided.

In my previously final installment, I focused on the distinction between there being a reason for agent Betty desisting from a nasty action she envisions performing and Betty having reason (in Gaus’s sense) to desist from that action. Recall that for Betty to have reason to desist (in Gaus’s sense) it must be true that there is a basis within Betty’s existing evaluative considerations (her existing goals, aspirations, commitments) for Betty’s desisting—even if Betty does not currently see or acknowledge that basis. Betty has reason to desist if and only if good deliberation on her part would take her from her evaluative considerations to the decision to desist. According Gaus, another agent, Alf, can be justified (in the relevant sense) in demanding that Betty desist from the nasty action, only if Betty has reason to desist.

In that last installment I asserted (but hardly argued for) the contrary view that Alf can be justified in demanding that Betty desist from the nasty action if there is reason for Betty desisting; it is not necessary that Betty have reason (in Gaus’s sense) to desist for Alf to have moral authority to demand that Betty desist. Gaus’s response to this is that for Alf to cite a reason for Betty to desist rather than a reason that Betty has (in Gaus’s sense) to desist is for Alf merely to talk at her rather than talk to her.

Why does Gaus think that expressing to Betty a reason for Betty to desist is merely talking at Betty and not to her? I think the answer is that Gaus does not think that anyone can ever be given (presented with) a reason. Or more precisely, a person cannot be given (or presented with) a reason she does not already have. Betty cannot be given a reason in the sense of having her attention drawn to a consideration on behalf of or against an action that is not already among her evaluative considerations. As I understand Gaus, Betty can only be given a reason in the sense that her attention may be drawn to some consideration which is already among her evaluative considerations. For Gaus, all deliberation is about detecting elements of one’s current evaluative considerations and drawing out the implications of those considerations (in conjunction with the relevant factual premises). Hence, as Gaus sees it, purporting to cite a reason for Betty desisting which Betty does not at that point have is just to engage in a bit of intimidation; it is not to address Betty at all.

My contrary view is that people can be presented with reasons which are not already residing within their evaluative considerations; contrary to Gaus, deliberation includes judging whether to bring into one’s motivational structure a consideration which is not already there. (Gaus’s examples of putting before people considerations that they cannot possibly grasp are not fair examples to deploy against the view that people can bring some considerations on behalf of or against certain conduct into their motivational structure.) That is why I see presenting Betty with a reason for her desisting—which reason she does not at that point have (in Gaus’s sense)—as an instance of addressing her and not merely talking at her. The progress for me in this discussion is seeing (among other things) how much of the dispute between Gaus and sectarian political philosophers turns on these disputes about practical reason and deliberation.