OPR, Ch.I.2: Moral Authority among Free and Equal Persons

OPR attempts to show how moral authority can is possible despite disagreement among free and equal persons about the nature of morality. To do so, we must determine what moral authority is and the challenges it raises.

Section 2 might be read as an explanation of the various notions of freedom at work in the book. The first idea that Gaus analyzes is the “presumptive” or “natural” freedom in the state of nature. On this “negative” conception of freedom, X is free when X is free from requirements to comply with the judgments of others about morality. Notice that this is not freedom from morality but freedom that obtains when one is free from the others’ varying interpretations of morality.

Gaus ties his conception of freedom to the Kantian notion of autonomy and to what Susan Wolf calls Kant’s “Reason View” where one is autonomous when she has the option to act in accord with reason. For Gaus, “a free moral person is one who acts according to her own reasoning about the demands of morality.” (15).

A justified moral order rejects the claims of natural or self-appointed authority of some over others. When citizens make unjustified demands, those that do not appeal to the reason of citizens, they are “authoritarian”. (16). For Gaus, authoritarianism is the original sin of political philosophy. The authoritarian is not only morally suspect but fails to establish authoritative claims over her compatriots, since she appeals only to her own reasons, not to others’. For Gaus, for John to treat Reba as a free and equal moral person means that he must “acknowledge a fundamental constraint on the justification of claims to moral authority over her.” (17). The political philosopher must dispel the suspicion that morality is a form of illegitimate social control to explain how such moral authority can be justified.

Gaus next introduces a contrast between two conceptions of free and equal moral persons and their connection to social morality. Gaus ascribes to prominent Kantians Tim Scanlon and Stephen Darwall what he calls the “Expansive View” where we recognize others as free and equal means by “act[ing] toward others according to principles they could not reasonably reject.” Gaus takes Darwall and Scanlon to hold that “recognizing others as free and equal immediately implies [emphasis mine] a formula for what actions are morally permissible.” Yet the Expansive View is unattractive because it loads too much of the content of morality into a conceptual claim about the nature of recognizing others as free and equal. The Expansive View is therefore too controversial to form the foundation of a justification for social morality under conditions of reasonable pluralism.

The “Restrictive View” is an alternative to the Expansive View. It holds that moral personhood “consists in the capacity to care for moral rules in such a way that one recognizes a compelling reason to abide by the rule even when such conformity does not promote one’s wants, ends, or goals.” (19). Gaus believe that he can demonstrate that the Restrictive View is an implicit part of our social practices and so is presupposed by participation in any extended system of social cooperation. Notice that Gaus endorses the Expansive View (p. 20) but that he thinks it is vital to publicly justify the Expansive View in light of the Restrictive View.

Gaus introduces two puzzles about morality authority in Section 2.3. The ideas of freedom from judgment, natural moral personhood and equality among persons raise the Puzzle of the Assertion of Authority over an Equal. The puzzle concerns not speech acts but “claims to authority over another.” The puzzle is this: How can moral equals show that they have the authority to demand that others conform to certain social rules? The second puzzle is the Puzzle of Mutual Authority which arises because all persons have the ability to acquire authority over each other despite their equality. Gaus thinks that Hobbes, Locke, Rousseau and Kant all thought the puzzles could be solved. On their view, authority among equals must be possible in order to resolve conflicts of private judgment.

In 2.4, Gaus draws a distinction between the ways that Hobbes and Locke and then Rousseau and Kant conceived of the problem of the social contract. Hobbes and Locke thought that the clash of private judgment must be resolved by a political arbitrator. Private judgment must be suspended to establish a public morality of public reason. Gaus sees the Lockean and Hobbesian solution to the problem of moral disagreement as inherently political. His complaint is that they thereby excessively politicize the resolution of disagreement. In other words, Hobbes and Locke are too statist in comparison with Rousseau and Kant. This is a very unusual sense of “statist” but I think it is very deep and profound. If moral disagreement can be resolved extra-politically, there is much less for politics to do. Further, morality can actually restrain politics despite not being understood in natural law/natural rights terms. This form of anti-statism will form the groundwork for Gaus’s neoclassical liberalism (my term) developed towards the end of the book. Plus, notice that Gaus claims (ft. 48) that his view in Justificatory Liberalism was too Lockean in the sense described above. In this little footnote, Gaus explains his philosophical development between Justificatory Liberalism and OPR. Justificatory Liberalism was too statist because it was insufficiently Rousseauian. Weird, no?

Rousseau is the hero of OPR for he was the first to understand how the two puzzles of moral authority among equals could be resolved. Rousseau saw that a citizen could serve two simultaneous roles in a polity: sovereign and subject. Thus, the citizen can self-legislate morality, that is, she imposes morality (qua sovereign) only on herself (qua subject). Thus, when equals make justified demands of one another, they only demand that each other live up to their own self-imposed demands. For Rousseau, Kant and Gaus, as opposed to Locke and Hobbes, public judgment does not preempt private judgment. Instead, private judgment is harmonized with public judgment through the process of public justification.

Private judgment is harmonized with public judgment when the Deliberative Public Justification Principle is satisfied (p. 27). DPJP:

L is a bona fide rule of social morality only if each and every Member of the Public endorses L as binding (and so to be internalized).

When DPJP is satisfied “private reason and public reason are … harmonized” because all citizens self-legislate the social-moral rules required to cooperate with one another in a social order.

The DPJP needs more explanation, however. Members of the Public (MoPs) are idealized versions of actual citizens. So notice that Gaus has an account of idealization somewhat like other public reason liberals. However, Gaus’s conception of idealization is distinct because it is formulated by reflecting on the reasonable values and aims of actual citizens. Thus idealization is built directly out of our account of citizens’ reasons, not through abstractions generated out of our common considered judgments, a la Rawls. In my opinion, by adopting this conception of idealization, Gaus generates a liberalism that permits citizens’ private, sectarian reasons to become part of the normative support of social morality. This version of liberalism thereby entirely obviates one traditional communitarian criticism of liberalism: that it tries to formulate a public morality independently of citizens’ conceptions of the good.

Gaus’s conception of public reason also relies on his notion of social morality and social-moral rules. They’re explicitly mentioned in the DPJP and so public reason extends into morality itself. Gaus rejects Rawlsian Political Liberalism because he thinks public reason must go beyond the political.

Also notice that Gaus claims that social morality can have authority even when no one is making actual demands. We can often merely “remind each other of the relevant moral requirements.” Public justification in this way can obtain independently of the process by which public justification occurs. The relations of public justification are often implicit, internalized and non-deliberative. In this way, Gausian public reason is somewhat divorced from actual deliberative processes. We will revisit this theme later in the book.

Significantly, Gaus has embraced the traditional notion of positive liberty. Many people bowdlerize and oversimplify this notion, but not Gaus. Gaus’s conception of positive liberty is the Reason View of Kantian Autonomy: people are free when they act on their best understanding of their reasons. But also notice that Gaus’s notion of freedom from judgment is a kind of freedom from the interference that moral judgments entail. So Gaus utilizes a notion of negative liberty as well. Gaus has moved beyond debates about whether positive or negative liberty is the preferred conception of freedom. Instead, the interesting problem for Gaus is to show how positive and negative freedom combine.

Gaus grapples with Isaiah Berlin’s classic worries about positive freedom, i.e., that it can lead to totalitarianism. Positive liberty theorists recognize that “not every action a person chooses is a true expression of her overall aims and values” (33) and affirm that others can often understand your reasons better than you do. But the problem with Berlin’s critique of positive liberty views is that Berlin fails to distinguish “freedom qua acting in accordance with reason from freedom qua acting on one’s reasons.” Gaus appeals to no lofty ideal of Reason-with-a-capital-R. Instead, Gaus will attempt to rebut Berlin’s concern by appealing to a particular conception of the Reasons One Has (Sec. 13). For Gaus, making justified moral demands of one another is only to demand that she “live up to her own values” and that in doing so we do not disrespect one another but instead leaves them positively free.


There is an enormous amount going on in this section. Section 2 explains the Gausian conceptions of:

(1) Moral Authority
(2) Autonomy
(3) Negative Freedom
(4) Moral Personhood
(5) Equality
(6) Self-Legislation
(7) Positive Freedom
(8) Public Justification


If you did not find something to quibble with in Section 2, you’re not paying attention. While Gaus analyzes eight traditional political concepts, he does so in distinctive ways, ways that you probably disagree with. I found summarizing this section complicated enough that starting to issue my own criticisms would make for too long of a post. I will leave it to you to raise your own questions and criticisms.

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7 Responses to OPR, Ch.I.2: Moral Authority among Free and Equal Persons

  1. Mats Volberg says:

    If I understand Gaus correctly then we are allowed to interfere with the actions of those people who have failed to achieve self-direction. This failure can have two forms: either they are other-directed or they just fail at self-direction.

    Now, this kind of approach is supposed to be a reply to Berlin’s worries about the traditional understanding of positive freedom where some one wise/rational/better/etc. tells others what to do because they are unable to see it for themselves.

    But if I happen to be other-directed or just fail at self-direction in one particular case and some one interferes with my actions, then judging from my perspective what reason do I have to accept that as legitimate and not disrespectful? Or is my perspective unimportant in that case?

    In connection with that: if MoPs are idealized but the DPJP requires that all MoPs endorse L then who exactly is going to do the relevant reasoning in the real world concerning L? And how is that to be done? What I mean is that since MoPs are idealized then the actual reasoning whether L is to be endorsed is done by someone else and how can Gaus make sure that nothing authoritarian happens, that no one concludes on the behalf of the MoPs that L ought to be endorsed.

  2. Mats: I think a lack of self-direction (in the Reason View sense) is merely a necessary condition for interference. If someone’s just walking around, minding his own business and being other-directed, then that alone cannot be grounds for interference, I don’t believe. Further, whether your judgment can be displaced will depend on how we idealized MoPs, as you point to next.

    As for your second worry, Jerry will outline mechanisms by which we can discern which norms MoPs endorse. A lot will depend on our theoretical model and a lot will depend on actual social-moral practices. I know that’s kicking the ball down field, but there it is.

  3. Two quick comments. First, the section begins with a quote from Locke and a brief commentary:

    “the natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule.” To be morally free is to have only the law of nature as one’s rule. This implies, though, that one is not also ruled by the judgment of others as to what the law of nature is.

    However, Locke also assigned everyone executive authority over the state of nature (Ch.2, §7). Although he thought that noone had a natural duty to obey anyone else, he also thought that everyone had a right and indeed a duty to enforce the law of nature.

    Jerry later expresses the idea of the individual’s “moral sovereignty” (17) in this way:

    To respect another as a free moral person is to acknowledge that her reason is the judge of the demands morality makes on her. In Locke’s terms, she understands herself as ruled only by morality, not the reasoning of others about what that morality is (15).

    I’m wondering about the strength of this constraint. Is being ruled only by one’s own conscientious view of morality simply a pro tanto value, or is a value that normally / always overrides all others? And is it a value that we relate to as a side constraint, or in the manner of a goal to be promoted / maximized? Exercising power over someone in a way they can reasonably reject is bad, but is it so bad that it always overrides other values? And what about the case where doing so can prevent other instances of the reasonably rejectable exercise of power?

  4. I am a bit puzzled by the distinction between the expansive and restrictive views of freedom and equality. The restrictive view has two requirements: (a) the capacity to care for moral rules, i.e. the capacity to abide by them even when it doesn’t suit you, and (b) refraining from making moral claims on others that those others don’t have reason to endorse (p. 19). So merely behaving in a way that others might reasonably reject is not, contra the expansive view, inconsistent with the freedom and equality of persons provided I follow what I believe the moral rules are, and I don’t make moral claims on others. Doesn’t this mean someone can harm or kill others for, say, religious reasons consistent with the restrictive view provided that the person don’t make any moral demands on others? Jerry says the answer will ultimately be no because the substantive content of a socially justified morality will rule this out, but we don’t want to build this content in to the very meaning of what it means to treat others as free and equal (p. 20).

    I’m not sure I understand this response. If the restrictive view does not itself rule out this kind of harm, then where does the normative content come from that will eventually rule out this kind of harm? Suppose Jerry means that once we figure out what rules can be justified to all members of the public, it will turn out that non-consensual harming for religious reasons is prohibited. But suppose the person who commits the harm, A, is a bit of a weirdo, and his set of justified moral beliefs (or his idealized member of the public’s beliefs) do not preclude non-consensual acts of harming others when A’s religion requires it. So A says ‘maybe everybody else is justified in endorsing a moral rule prohibiting non-consensual harm, but I am not, and so I can non-consensually harm others consistent with the freedom and equality of others provided I don’t make any moral demands while doing so’.

    At this point I can only see two responses available to Jerry. One is to deny that weirdos like A can be genuine members of the public–to insist that people with A’s beliefs cannot be included even in the restrictive view of freedom and equality. But if Jerry takes that option, then he is building the required normative content in to the very meaning of the restrictive view. The other option is to admit that people like A can be members of the public, but this is then to concede that, at least in principle, there is nothing inconsistent with the non-consensual harming of other people for religious reasons on the restrictive view. In sum, I don’t see how Jerry can both insist the restrictive view does not have all the normative content built in like the expansive view, yet also insist that it will eventually prohibit all the kinds of bad behaviour we want it to prohibit.

  5. @Andrew: the value of not treating others in ways they can reasonably reject (understood in the restrictive sense) is definitely a kind of side-constraint. It is a necessary condition for the right-making of acts of interference or coercion, or so I think.

    @Jon: That’s a nice dilemma. I think Jerry will sometimes push the first response you outline in the third paragraph and other times push the second response. The idea will be to show that social conditions help to fill out the content of the DPJP, that is, they provide the sufficient conditions for some norm to count as part of substantive morality. Those social conditions will vary, and so some relativism is admitted. I don’t think that Jerry thinks it is impossible for there to be such “weirdos” but he will argue in Chapter IV, I think, that the vast majority of ordinary humans will have emotional states, reactive attitudes, moral psychologies, or something like that such that they will have reason to embrace the sort of norms your weirdo might reject.

  6. I’m wondering about just how wide the gulf really is between the Lockean “inherently political” (p. 24) solution to conflicts in private judgment and the Rousseau/Kant non-deferential solution that Jerry wants to endorse. It seems to me that something here turns on just why, in the Lockean picture, individuals are expected to defer to the judgments of public reason. On a standard reading, the reason is that it’s in their (long-term) rational interests to do so. They’re rationally required to authorise an ‘umpire’ because of the damage to their self-interest that a system of private enforcement will do in the long term.

    Still, the umpire’s judgments aren’t to be deferred to in all circumstances, as Jerry notes in footnote 47. If those judgments clash sufficiently with individuals’ consciences, then the umpire loses his/her authority. So, it looks as if Locke thinks that there must be a measure of congruence between individuals’ private moral judgments and the umpire’s. At any rate, Locke wants congruence at least between individuals’ (perhaps idealised) judgments of their own long-term self-interest and the umpire’s judgments.

    So, it seems to me that Locke as well as Rousseau wants those who join together to be in a condition in which each does not “behave inconsistently with himself” (see Jerry’s quote from Rousseau at p. 25) or one in which “each endorses the rules under which she lives” (p. 27). Doesn’t the difference between the Lockean view that Jerry wants to reject and the Kant/Rousseau view that he wants to endorse have more to do with the fact that the Lockean view appears to privilege individuals’ judgments of self-interest over their judgments of right, in the sense that it strives chiefly to harmonise public reason with private judgments of self-interest, whereas the Kant/Rousseau view does not, in that it strives to harmonise public reason with private judgments of right?

  7. Thomas, this is a pretty tough question. I don’t think the difference turns on self-interest, but rather on the status of private judgment with respect to (a) whatever body generates public reason and (b) whether that body is political.

    So with respect to (a): for Locke, the social contract constrains private judgment in that we accept that we have some overriding reason to comply with the judgments of the sovereign (whatever the sovereign may be) while simultaneously having a distinct private judgment about what the natural law requires. Liberty is constrained by the social contract for this reason because we would still choose otherwise in our private judgments, that is, our private judgment and public judgment are at odds. But for Rousseau and Kant, public reason is self-legislated such that there is no conflict between private reason and public reason. In other words, there is no constraint. Somehow the structure of our reasons for action is “smoothed out” for Kant and Rousseau, whereas for Locke the tension between private and public reason remains.

    With respect to (b): I think that Jerry thinks that the Lockean solution to the diversity of private judgment is to submit to the judgment of the sovereign when it comes to disputes about morality. In contrast, Rousseau and Kant tell a story about how morality itself plays a reconciling role and so makes available a purely moral method of generating public reason apart from the sovereign, though this is much clearer in Kant than Rousseau. And of course, for neither Kant nor Rousseau (nor Jerry) can morality do it all.

    I hope this helps!

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