Let me begin by thanking Blain for an excellent recap of Chapter 4 of the book, which is arguably the centerpiece chapter. He raises five important concerns, but I’m going to set two aside. First, Blain raises the question of my Rawls exegesis. I suspect that is something better dealt with in a journal format or conference proceeding. It is interesting and important, but my main arguments do not depend on it. I will say, briefly, that yes, the process of generating convergence justifications can encourage revision of pieces of certain comprehensive doctrines. The second issue I set aside concerns my indirect model of public justification and the idea that restraint (of a certain sort) applies to legislators but not to citizens. That is one of the two main questions at issue in Chapter 6, so I’d like to push discussion to that post. But briefly, a lot of the case for the indirect model is based on the fact that citizens complying with restraint is neither necessary nor sufficient to promote publicly justified outcomes given all the other stages between a popular vote and the passage of legislation.
So let’s focus on sincerity, individuation and the question of how classically liberal public reason is.
As Blain notes, in Chapter 4 I argue that sincerity requirements cannot be used to refute convergence views, as Jon Quong maintains, because sincerity requirements’ normative force is entirely derivative from a general commitment to offering one’s reasons for supporting a law and an account of what those reasons are (convergence, consensus or whatever). Blain is worried that sincerity still has some unique normative remainder that is not entirely derivative from other principles.
Blain asks us to imagine a particular case of what Rawls called reasoning by conjecture, where A tries to convince B to support a law by appealing to B’s comprehensive reasons. However, in Blain’s case, the B-reason A appeals to best supports L2, a law that A rejects or finds sub-optimal, though the B-reason nonetheless (though to a lesser extent) supports L1, the law that A proposes. Now suppose that A appeals to the B-reason as a reason to support L1 but doesn’t raise the fact (of which A is well-aware) that the B-reason better supports L2.
To put this more concretely, imagine that secular A is a fan of single-payer healthcare and wishes to convince Catholic B to support single-payer. A appeals to B’s Catholic reasons to believe that God has a special preference for the poor and that poor will do better under single-payer than our present system in the US. However, let’s suppose secular A knows that a two-tiered system would actually work better for the poor on the whole, as single-payer often prohibits private insurance. Secular A supports single-payer because it is more egalitarian than a two-tiered system, but A knows that Catholic B doesn’t share that egalitarian concern. So A tells B, “Well, Jesus said that what you do for the least of these, you do for Him, right? And single-payer helps the least of these, right?” But A then omits a more moderate possibility, that of a two-tiered system. Is there insincerity here?
I think that there is a clear potential for insincerity in this case, but that the fact of insincerity depends on A’s assessment of the, for lack of a better phrase, “justificatory spread” between a two-tiered system and single-payer. If Catholic commitments genuinely support single-payer, but less well than a two-tiered system, then I don’t think A is insincere in offering an argument for her position. But if A thinks that Catholic commitments support single-payer far less well than a two-tiered system, then I can see the insincerity. In politics, I don’t think public discussion requires total disclosure of one’s views in political discussion.
But suppose there is an insincerity, would that be a problem for my line on sincerity? I don’t think so. There are lots of ways to be insincere, dishonest or deceptive in politics that are forbidden by ordinary moral rules. My claim is merely that the restraint that is typically said to fall out of a commitment to public justification cannot be justified by appealing to a sincerity requirement derived from a commitment to public justification.
II. Rough-grained Individuation
One of the most important issues in figuring out the implications of a commitment to public justification is determining which unit of coercion must be justified. Is it constitutions? Parts of constitutions? Laws? Bits of laws? The question Andrew Lister originally raised, and Jerry Gaus and Jon Quong have further analyzed, is how to individuate coercion, and whether to do so finely or coarsely.
I am on the fine-grained end of the spectrum: public justification is aimed at the justification of coercive laws, and the justification of all other coercion is to be understood in terms of the justification of laws. For instance, I will argue in a forthcoming paper and in what I hope will be my next book that we should choose constitutional rules in public reason based on the relative frequency that they output publicly justified law and prohibit or reform publicly unjustified law in comparison with other constitutional rules. So we don’t publicly justify constitutional rules directly, but in terms of their effects on laws (with an important exception we can discuss later).
What Blain proposes is a very ‘rough-grained’ individuation of coercive measures, such as only publicly justifying a society’s constitutional essentials and basic structure as an overall system. This is Rawls’s view. But recall that Rawls allowed that you might be able to apply the restrictions of public justification to smaller bits, like laws. He just didn’t require public justification at that level once the system was in place.
There are two ways to try and show Rawls is wrong: one path charted by Quong, the other by Gaus. I prefer the Gausian line (surprise), though I think Quong is right as well. The basic Gausian argument in OPR is that public justification always must bear clearly in mind the members of the eligible set of potentially justified proposals. That is, when we propose to publicly justify constitution C, what are the alternatives? Does a model of public justification always vindicate only one option? Well, Rawls certainly denied this. Justice permits either property-owning democracy or liberal socialism. We could institutionalize either one. Another thing we must bear in mind is that when we insist on public justification we are in effect asking whether some proposed arrangement is better than no arrangement at all. That is, all publicly justified laws are thought to be better than nothing. But this suggests something unsettling: if publicly justified arrangements are those that are better than no arrangement, then we may end up with a really big eligible set of constitutional orders whose members include lots of really illiberal regimes. For instance, surely various forms of autocracy, if properly limited, are better than no constitutional regime, and this would be so from all reasonable points of view, so why can’t we publicly justify autocracy? In sum, the worry with going coarse-grained is that you can publicly justify really illiberal stuff because illiberal stuff is better than a whole lot of nothing.
One could respond that we’ve already publicly justified principles that serve to rule out such regimes, but the question of “ruling out” is just the one we’re asking. Suppose we have the true principles of justice on the table and autocracies mildly realize the principles, whereas anarchy doesn’t realize them at all. Then what would render autocracy illegitimate? We do have sufficient reason to endorse it, after all, since it is better at realizing justice than no regime.
To give sense to our intuition that we can insist that the eligible set of justified regimes be more strictly limited, I think we have to tighten up our individuation of coercion. The reason autocracy can’t be publicly justified in general is that it generates lots of bad laws and policies that can’t be justified to free and equal people. It would be better to not have autocracy because it would be better not to have the laws distinctively passed by autocracies than to have them. In short, finer individuation can help us capture our sense that it isn’t enough to justify a regime to show that it is better than anarchy.
III. Classical Liberal Public Reason
Gaus has argued that public reason has a classical liberal “tilt” in that publicly justified orders will tend to have limited government not just in protecting individual civil rights but in protecting relatively extensive private property rights in capital. In a classical liberal regime, states can restrict property rights more than in libertarian regimes, in large part to provide public goods and establish limited social insurance.
Egalitarian liberals don’t like classical liberalism, but they think classical liberal regimes are better than nothing. However, the reverse does not hold. Many classical liberals would rather try a much more limited legal regime than go for egalitarianism. If so, then egalitarian liberalism falls out of the eligible set, leaving classical liberalism by itself. Blain, however, rejects this asymmetry. Either classical liberals come to believe that egalitarian liberalism is better than some forms of anarchy, or the egalitarian liberals come to believe that anarchy is better than classical liberalism. Whatever direction we go, “the cases are symmetrical.”
Now, for all I say in the book, Blain could be right. I’m trying to show that merely adopting convergence does not entail classical liberalism. So let me be clear: merely adopting convergence without other modifications to Rawlsian public reason does not entail classical liberalism. It will entail a more limited government than on the consensus view, in many circumstances, anyway, but not a classical liberal state.
However, I think there are other modifications to public reason that begin to push public reason in a classical liberal direction. In particular, combining convergence with a fine-grained individuation of laws will take you a ways towards classical liberalism, along with the conception of coercion we settle on (or at least the core cases of coercion that we all agree are coercive). A lot will also depend on the justification of basic rights (what in my next book I plan to call “primary rights” to resemble Rawls’s notion of “primary goods”), and about how extensive rights to property can be justified at this first stage.
In sum, I thank Blain for the really helpful summary and comments. Lots of good issues here and lots of important questions that need to start getting addressed in the literature. Public reasoners, let’s get writing!