Vallier Reading Group: Chapter 3

Chapter 2 set out the argument linking public justifiability with restraint, advanced the integrity and fairness objections to restraint, and criticized the stability argument for restraint. Later chapters will attempt to uncouple public justifiability from restraint by arguing for what I think of as an indirect convergence view.

Indirectness: Public justification is fundamentally a social state, and only derivatively a deliberative process, if abiding by a norm of public justification tends to generate the desired state. The best procedure for generating publicly justified laws might not be for ordinary citizens to try to follow the principle of public justification, but rather to have institutional mechanisms that tend to bring about this result. I’ll leave aside this aspect of Vallier’s view, because I assume we’ll be talking about it later, and it’s better to start by taking one thing at a time.

Convergence: Public justification requires that political authority be acceptable to all qualified* points of view, but not necessarily for the same reason. A convergence requirement is both more and less restrictive than a consensus requirement. On a particular issue, a qualified point of view might reject having any law based on its total balance of reasons even if the balance of public reasons is positive. Conversely, all qualified points of view might accept having a law, each based on its total balance of reasons, even if the balance of public reasons is negative.

[Note on “qualification”: This is David Estlund’s generalization of Rawls’s idea of reasonableness, reasonableness being a particular standard of qualification (see Chapter 3 of Estlund’s Democratic Authority). Just to be clear, the idea of a standard of qualification does not involve any limitation of the legal rights of citizens. The idea answers the following question: to what range of perspectives that I disagree with is acceptability required, for a law / reason to be (publicly) justifiable? The natural answer is “None! Laws / reasons need only be in truth well founded, not acceptable to any incorrect points of view.” Ordinary “correctness” justification is a limit case of public justification with the constituency of justification reduced to one. Critics cannot complain that public reason liberals draw the circle of qualification too narrowly, if they draw it more narrowly still. I take the term “correctness justification” from Steven Wall, ‘Is Public Justification Self-Defeating?,’ American Philosophical Quarterly 39, no. 4 (2002): 385-94.]

The present chapter sets out criteria to assess competing conceptions of public reason: respect for personal integrity, and respect for reasonable pluralism. It also identifies an aspirational goal for public reason: “congruence,” as opposed to “modus vivendi.” Congruence involves the elimination rather than merely the minimization of restrictions on personal integrity and reasonable pluralism. The argument hinges on the distinction between having reason to comply with a rule and having reason to internalize it. The congruence approach aims at full internalization – not just compliance for whatever reason (e.g. threat of punishment, social disapproval, or other unfortunate consequences), but compliance based on endorsement, when one’s own values support the rule in question. What makes congruence attractive, where it exists, is that “each person self-legislates the law”. The rationale for congruence is not just feasibility or assurance, but liberty and integrity (96-7; see also 100).

Congruence may seem too demanding, because it is unlikely that all citizens will be able to achieve this state with respect to any law. In response, Vallier argues (a) that congruence is a regulative ideal, not a necessary condition for the legitimacy of law; (b) that we can use decision-procedures to resolve disagreement about what laws are best when we agree that any one of a set of proposals is better than none at all; and (c) that we can idealize.

1. Integrity objections to lack of restraint (from the perspective of citizens as subjects of the law)
Chapter 2 laid out the integrity objection to conceptions of public reason that involve restraint; “public reason liberalism requires individuals to repress or privatize those religious aspects of their identities that require them to engage in political activity” (59). In Chapter 3, however, Vallier notes that the principle of public justification is also grounded in respect for integrity. Coercion is morally problematic because it prevents people from acting according to their own principles, but when publicly justified, it no longer restrains them in ways they can reasonably find objectionable (paraphrasing 87). This admission raised a doubt for me about the integrity objection to restraint. The dominant direct-consensus model of public reason undoubtedly sets a normative restriction on the political activity of citizens, in so far as we consider them to be authors of the law. However, citizens are also subject to the law. Therefore lifting the public reason restriction would unburden conscience in one respect only to burden it another. Without public reason, there would be an integrity-gain in that I would be able to vote my religious convictions, but there would be an integrity-loss in that I would be subject to laws that express the religious convictions of others.

2. Integrity objections to convergence models of public reason (from the perspective of citizens as authors of the law)
Convergence conceptions of public reason permit religious and other nonpublic reasons to play two roles they cannot play on standard consensus conceptions of public reason. The first is the negative role: a law is not publicly justified if any qualified point of view can reject it, based on its total balance of reasons. The flip side of this negative role is a weakening of the positive role that religion can play in politics, as compared to a status quo with no requirement of public justification. Religious reasons can successfully justify state action only where no qualified point of view can reject the law in question, as against the alternative of not having a law, on the matter at hand. But if our standard of qualification involves only moderate idealization, there will be a great diversity of religious views, including non-theistic and atheistic religious views. True, religious views can form part of a unanimous convergence in favour of state action – this is the second role non-public reasons can play, on a convergence conception – but such unanimity will be rare. The convergence conception of public justification is religion-friendly on the issues of religious exemptions and school choice, where what religious voices generally demand is the absence of collective enforcement of a common policy, but it is not religion-friendly on issues such as abortion, same-sex marriage, or euthanasia, where religious voices typically demand religiously-informed regulation of conduct.

In sum, it seems to me that there are integrity objections to convergence conceptions of public reason as well as to consensus conceptions, on the authorship dimension. Of course, we also need to consider the subjection dimension, as per my first point. Putting these two points together, it’s not clear to me which conception of public reason does best, on integrity.

3. Congruence vs. Modus Vivendi
The chapter initially distinguishes these two “strategies of reconciliation” in terms of whether we attempt to minimize or eliminate conflicts between law and citizens’ integrity. It seems to me, however, that minimization and elimination don’t represent different strategies. Elimination is just a special case of minimization, when it turns out that we can minimize all the way to zero. We can always hope to eliminate integrity-law conflicts, but if should turn out that the best we can do is to reduce them to some low level, that would an unfortunate fact, but I don’t see how it would provide a criterion for assessing different conceptions of public justification.

The chapter also distinguishes the two strategies in terms of internalization vs. mere compliance. Congruence involves recognizing that a given law is the rule one has most moral reason to accept, so that one identifies the rule as “one’s very own.” In contrast, modus vivendi involves accepting that one has reason to comply with a rule despite not accepting it as one’s own. This use of the term “modus vivendi” seems misleadingly broad. Ordinarily, the term refers to an agreement that is conditional on there being a balance of power, in contrast with a situation in which the parties involved accept the arrangements independent of the balance of power. An agreement might be power-independent, however, even if the parties involved haven’t reached the full congruence that Vallier hopes for, i.e. even if they are accepting trade-offs between integrity and public justification. I might comply with a law even though from my own distinctive religious or philosophical point of view it is morally flawed, because I recognize that the law is justified based on the balance of reasons acceptable to all qualified points of view. I take myself to have principled reasons for accepting the principle of public justification, and I do so based on my own religious or philosophical convictions, so my agreement is not conditional on the balance of forces, but my agreement is not wholehearted either, because I agree only given the fact of reasonable pluralism, which I find in certain respects regrettable. I have reached a principled resolution of the conflict of values I experience, in political life, but I have not eradicated or dissolved this conflict – I have not achieved a “complete harmonization” of my reasons. Such harmonization would be a good thing, but how does recognizing this goodness help us identify the best conception of public reason?

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