Integrity, Law and Congruence: Comments on Chapter 3

Thanks to Andrew Lister for an admirably concise and rich review of the third chapter of my book. The main aim of Chapter 3 is to lay down the strategy for vindicating the convergence view. I argue that respect for integrity and reasonable pluralism are both foundational values in public reason liberalism, so foundational that they can be used to choose between conceptions or interpretation of the idea of public reason. I will argue that the convergence view is superior on both grounds to the mainstream consensus view in Chapter 4.

But Lister raises some important concerns about how that vindication is going to go.

I. Does Convergence Help or Hinder Religious Integrity?

Lister’s first worry is that by lifting the requirement of restraint from citizens, we reduce integrity violations caused by restraint but increase integrity violations prohibited by restraint. So citizens will be permitted to act on their diverse religious reasons, which could allow them to coerce others in integrity-violating ways:

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.

But as Lister notes, convergence does not allow the wholesale coercion of others based solely on religious reasons. Instead, despite permitting religious reasons to enter in the process of public justification, it allows secular or religious private reasons to defeat potentially oppressive and integrity-violating laws. Lister admits that on my convergence-moderate idealization view, religiously based coercion will be rare as the coercion must be unanimously endorsed by idealized members of the public and that is unlikely to happen in a sufficient diverse public.

Lister suggests that as a result the convergence view is only friendly to religion on certain political issues where religious citizens seek to reduce coercion, such as religious exemptions and school choice. But it will be much less friendly on “abortion, same-sex marriage, or euthanasia, where religious voices typically demand religiously-informed regulation of conduct.”

Now, the legal implications are largely as Lister outlines, though I think the case of abortion is more complicated. I speak to this below. But, yes, on euthanasia and same-sex marriage religiously-based coercion is hard to justify if not impossible (though on same-sex marriage, religious exemptions can be publicly justified). That will certainly make many people of faith unhappy.

But I fail to see how their integrity is violated by these legal policies. Restraint violates integrity by requiring people not to be true to their convictions or to violate their faith. The only way prohibiting or banning gay marriage or euthanasia could be construed as an integrity violation is if many religious people were committed to the view that their religion requires banning these practices in the democratic process. I submit that very few religious people think they have these duties, though some Muslims may prove a partial exception. There is a difference between politics compatible with one’s religion and policies required by said religion. I think religious people make this distinction all the time, and that my convergence view adequately represents the divide.

II. Convergence and Abortion

Convergence views on abortion are rather complicated, surprisingly. On my view, while coercive prohibition of abortion cannot be justified to some pregnant women (some might actually be pro-life, however), we may be able to publicly justify restrictions on others performing abortions in order to protect fetuses if we consider fetuses to be persons. This is because if fetuses are in fact persons, then they are arguably subjects of public justification. If so, pro-abortion legislation can’t be publicly justified to them. I think this might permit laws that would legally punish abortion providers.

So it seems to me how public reason sorts out abortion invariably depends on whether the unborn are persons. I’m not sure there’s a way to apply a public justification restraint that is neutral on the issue of fetal personhood.

And just to make this post more controversial, here’s one reason to think that political liberals might want to acknowledge fetal personhood: because they typically want to argue that we must publicly justify coercion to future generations, say by not destroying the planet that they will one day use. If the interests of non-existent people make them subjects of justification, the interests of potential people (fetuses) should make them subjects of justification as well, or so it seems to me.

III. The Point of Congruence

I want to avoid a conception of public reason that settles for conceiving of politics as a seeking an adequate balance of power, one that settles for a modus vivendi. I think that’s part of the ideal animating the public reason project. I propose that one could attempt to either minimize or eliminate conflicts between laws and personal integrity in order to move towards that ideal, but that we should not settle for minimization, but seek elimination instead.

Lister argues that “elimination is just a special case of minimization” which occurs when we can minimize to zero. So there’s no real distinction between the approaches. I think there’s a difference in what we strive for, about what our ideal aims at. If we settle for a small amount of incongruence, we’re not fully defending the ideal of public reason.

Lister also argues that my conception of a modus vivendi may seem too broad, as I understand a society as being rooted in a modus vivendi even if citizens take themselves to have reason to comply with the strictures of public reason, though not for their own moral reasons. That is, I say a modus vivendi obtains when everyone takes themselves to have reason to comply with the law when those reasons are not genuinely moral. We achieve congruence when each person can in some sense see the law as an expression of her moral values, and not just strategic bargains. So the ideal of public reason, on my view, aims at justifications that consist of moral reasons.

But how does any of this help us decide between conceptions of public justification?

My answer, in brief, is that by acknowledging a broader set of reasons as justificatory, a convergence view better approximates the ideal of congruence at the heart of public reason. Convergence allows people to accept and reject laws based on their full set of deliberative reasons, whereas consensus restricts them to a subset. So if our ideal is congruent justification, a convergently-based legal system promises to draw closer to the ideal.

So I first have to establish that congruence is the ideal (which I tried to do in Chapter 3), and then I suggest that convergence brings us closer to congruence that consensus views do (in Chapter 4), and that moderate idealization brings us closer to congruence than radical idealization does (in Chapter 5). So that’s how congruence is supposed to help.

But I thank Lister for pushing me to explain how congruence is supposed to do any work. I’ve actually been thinking about that a lot as of late, as I’m working on a paper sorting out what congruence really is and how it helps us to distinguish ideal public justifications from less than ideal public justifications. That stuff didn’t make it into the book.

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5 Responses to Integrity, Law and Congruence: Comments on Chapter 3

  1. I will quickly comment on a few things — all things that have puzzled me about Kevin’s view and public reason accounts in general.

    1) Kevin agrees with Andrew that laws against euthanasia and same-sex marriage would not be publicly justified on his account, much to the displeasure of certain religiously-motivated citizens. This looks right to me regarding same-sex marriage, and I suspect that this reasoning would in fact lead to no marriage laws at all — that is, no state institution of marriage, no state-supported special benefits for marriages, and thus no state-based discrimination between different people that may want to be married in accordance with their own traditions or the rules of their own associations (much like baptism or other religious or cultural initiations). Euthanasia, however, I am not so clear about. The important issue here regards the level and specificity of the law that needs to be justified. Suppose there is a law against intentionally taking a human life. As much as people may prefer some other rule, like one that allows euthanasia, or executing murderers, or even apostates, the law does not have to be seen as best to be justified. At such, it seems to be that it is pretty easy for those with religious objections to get a ban on euthanasia through the specification of other rules (at least as the devotion of others to euthanasia is not sufficient to make them reject this rule, and the religious citizen is himself willing to have euthanasia legally treated like any other murder). Note that to my knowledge most places do not actually have special laws against euthanasia, but instead seemly prosecute under more general laws and do not see euthanasia as a justification (unlike, say, self-defense against deadly threat).

    2) Regarding abortion, I would be interested to know how Kevin or others think about personhood or citizenship within public reason. Kevin writes above that “if fetuses are in fact persons, then they are arguably subjects of public justification.” I am just not sure what he means my the “in fact” clause. For some people that could mean “if in fact the ideas in our democratic culture support treating fetuses as persons,” or it could mean “if in fact fetuses have a moral nature deserving of respect.” I do not think it could mean, as in something like Gaus’s account, “if in fact they are agents upon whom we make moral demands and claim authority,” for fetuses are undoubtedly not moral persons in that sense. I do not know how to assess the “democratic cultural idea” possibility, do not think Kevin would want to go with truths about moral natures, and just do not see many other possibilities for settling this issue that could get fetuses in.

    3) Kevin claims about the political liberals “argue that we must publicly justify coercion to future generations…. If the interests of non-existent people make them subjects of justification, the interests of potential people (fetuses) should make them subjects of justification as well, or so it seems to me.” I do not see how this is supposed to work. It is not “non-existent” people that are typically justified to, but the people who will exist under the system in the future. The idea, typically, as I understand it is that we want to have a system of laws that generations can live under and for which we can say that the system was justified to citizen who in fact lived under it. That allows a lot of policies, like promoting birth control, even though all the potential people might object. The potential future generations, however, do not need to be justified to, so long as the system is justified to the actual people who later come into it. This reasoning, however, does not lead to any support for the personhood of fetuses or other potential persons. I will also note the obvious fact that it is dangerous ground for Kevin to assert that “potential people (fetuses)” should be given justification, rather than merely actual people, for I assume Kevin would not want to admit to the justificatory public other potential people (e.g., ova).

  2. Regarding the personhood of fetuses I also have a comment for Kevin. I’m not sure granting personhood to the fetus changes anything so long as there is reasonable disagreement about personhood, and so long as we think of public justification as a constraint on coercion, and not an injunction to minimize coercion, as per Gaus OPR 484-7. The fact that abortion could not be justified to the fetus (granting personhood) would not mean that a ban on abortion could be justified to the women in question. This is the structure of Judith Jarvis Thomson’s second argument for abortion rights. Like her first argument, it begins by granting moral status. Instead of appealing to the distinction between harming and refusing to aid, however, her second argument appeals to the fact of reasonable disagreement about moral status, and the impossibility of justifying such serious constraints on women’s liberty/equality to each and every one of them.

    This argument seems decisive if the principle of public justification applies to coercive law with a default of no-law, and if we grant that the public justification criterion has been applied at the correct level – to laws against abortion separately from laws against murder more generally. If we bundle these issues together, however, we could frame the problem as choosing between a broad murder law (some abortions banned), a narrow murder law (no abortions banned), and no law against murder at all. Framed in this way, it might be unreasonable to reject the broad or narrow laws, as against the alternative of no law at all, hence legitimate to choose either via some reasonable procedure.

    • Andrew — that is a very good point regarding the potential for fetuses to be protected under a broad murder law. I think the most plausible route abortion-bans being publicly justified is via showing that they are eligible in exactly that way, and that way side-steps questions about whether or not fetuses are “in fact” persons.

  3. Chad, I meant to say that my comments on abortion were a a follow up to your point about bans on euthanasia via the specification of other rules.

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