Idealization, Judicial Reasoning and Reasonableness: Replies on Chapter 5

Thanks very much to Lori to an extensive summary of Chapter 5 and probing comments. I hope that my replies continue to advance the discussion. I think there are some things I could clear up about the role of idealization in Rawls and my own work, some interesting issues surrounding judicial reasoning (that I talk about in much more detail in Chapter 6) and the role of reasonableness in my account of public justification.

I. Idealization – Rawls and Me

Lori’s first worry is that I shouldn’t construe Rawls as a radical idealization theorist, at least not in his later work. I grant that by Political Liberalism, Rawls is open to multiple ways of formulating a theory of justice, or a conception of justice, but I wasn’t aware he was open to multiple models of idealization. I thought the idea was that all reasonable political conceptions have an original position, but select different principles, but I didn’t think varying the degree of idealization was part of that. But then again, Rawls doesn’t say.

But in any event, I used Rawls’s original position model in Chapter 5 to illustrate the role radical idealization tends to play in public justification views, and Rawls commits himself to a rather radical form of it in formulating his own “most reasonable” conception of justice, so I think it is a good illustration of a tendency in the literature.

Lori also worries that my moderate conception of idealization may give too much weight to individuals’ present ends and projects. She suggests, for instance, that some citizens may place a lot of weight on pursuing justice which may conflict with their conception of the good, such that idealizing them could involve them revising their conception of the good.

I can definitely acknowledge that some citizens may have as their end the realization of a certain sort of justice as part of their identity and that, if so, their integrity might require off-setting their conception of the good in favor of their conception of justice. So I don’t want to imply that any reasonable citizen cannot set aside her good for what justice requires. My point is rather that in idealization, we should work extra hard to not represent the reasons of persons as conflicting with their deepest commitments, and that involves a kind of bottom-up moderate idealization.

II. Convergence and Judicial Reasoning

Lori next worries that it is hard to see how convergence makes sense of judicial reasoning, as such reasoning seems to require some shared reasoning constraint. I acknowledge that judges often need to appeal to shared reasons, and in fact I think a consensus requirement applies to their decision-making. I argue as much in Chapter 6. This is because the reasoning the judges use is the public basis for future law, so the reasons must be ones that everyone will acknowledge as having some force. But this is not the case with legislators: their reasoning is not the public basis for future law in any direct way.

But this does not undermine the convergence view, I don’t think. Convergence allows for all the reasons consensus view does; it just allows for more. So there’s no need to deplete the fund of shared reasons in adopting a convergence view. The question is whether allowing diverse reasons does any harm. And I think it doesn’t. In fact, it’s a help. But I do acknowledges that judges are an interesting exception.

Given that Lori focuses on judges as her illustration, I decided to as well. I don’t think non-judge examples will turn out to buttress Lori’s point.

III. Reasonableness

Lori’s last concern is about how I understand reasonableness. It looks like I think citizens’ conception of reasonableness is purely instrumental towards realizing their ends. I think I understand why the chapter could be read that way, but I like to think that I’ve argued that citizens care about fair terms of cooperation both in order to advance their ends and to comport with their sense of justice. So my idealized citizens do have, in an important sense, two moral powers, two dispositions from which individuals can act. I also don’t think each person’s conception of the good always wins, but rather that the total balance of all their practical reasons – drawn from their conception of the good and their conception of justice – is sufficient to defeat a law, something consensus theorists deny (because citizens’ diverse reasons cannot defeat a law).

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3 Responses to Idealization, Judicial Reasoning and Reasonableness: Replies on Chapter 5

  1. Regarding: “I thought the idea was that all reasonable political conceptions have an original position, but select different principles…

    In my comment I cited the following passage from Rawls that indicates that this is not the case:
    “[E]ach of us must have principles and guidelines to which we appeal in such a way that the criterion of reciprocity is satisfied,” Rawls writes. “I have proposed that one way to identify those political principles and guidelines is to show that they would be agreed to in … the original position.” (Rawls 2005, pp.xlviii-xlix, my italics.)

    The criterion of reciprocity, then, is what is essential in determining whether a political conception of justice is ‘reasonable.’ It is what underpins the original position device. Other reasonable political conceptions of justice might satisfy the criterion in different ways. Rawls does not say anything (as far as I know) whether such alternative ways of satisfying the criterion of reciprocity require the same degree of ‘idealization’ as the original position (and I don’t see why he would be committed to that view).

    • Fabian Wendt says:

      Rawls even indicates that Habermas’ discourse ethics and Catholic views of the common good could be considered a political conception of justice, if presented in the right way: “Political liberalism, then, does not try to fix public reason once and for all in the form of one favored political conception of justice. That would not be a sensible approach. For instance, political liberalism also admits Habermas’s discourse conception of legitimacy …, as well as Catholic views of the common good and solidarity when they are expressed in terms of political values.” (Public Reason Revisited, pp. 774-775)This supports the reading that the original position is no necessary part of a political conception of justice. Arguably, a political conception of justice need not even employ any contractualist device, as long as it is expressed in purely political values and hence possibly fits into a plurality of comprehensive doctrines, and as long as it is a plausible interpretation of widely shared intuitive ideas like that of society as a fair system of cooperation among free and equals.

      More generally, I think, it is somewhat misleading to discuss Rawls’ original position device as something similar to the deliberative model of public justification as it is used in Kevin’s work (or in Jerry Gaus’ work). Rawls’ original position is to determine principles of justice, while members of the public in Gaus’ deliberative model (and I think also in Kevin’s?) are allowed to adhere to different conceptions of justice. It seems to leave open whether some of the members of the public could even be right about justice. If that is so, then the deliberative model of public justification cannot determine what justice is, of course.
      What comes closer to a principle of public justification in Kevin’s sense is Rawls’ liberal principle of legitimacy, not his original position device, because the liberal principle of legitimacy asks for the public justification of constitutional essentials and matters of basic justice to a plurality of reasonable comprehensive doctrines that may adhere to different political conceptions of justice.

  2. Lori Watson says:

    I will leave Rawls interpretation aside, as I think the comments above capture the relevant issues there.

    On the issue of person’s being constituted by their ends, and Kevin’s reply: I was actually saying something stronger than Kevin interpreted me to be saying (although I am sure the fault is mine for lack of clarity). I think that being willing to alter, revise, or even sacrifice some of one’s pre-political (or private) ends is a necessary condition for being committed to finding fair terms of social cooperation (and ultimately stability for the right reasons). Justice has to be a trump. My claim was, to put it crudely, that Kevin regards persons pre-political (or private ends) as always trumps, and that isn’t consistent with being committed to creating a just social order given the fact of reasonable pluralism.

    On the issue of judicial interpretation: Kevin relies on an asymmetry between the duty of judges to the ideal of public reason and legislators or regular citizens. In a professional ethics sense, this makes sense. Judges have a stronger, and arguably, enforceable duty. However, if our aim is to articulate and ideal of public reason, where we lay out the moral grounds for thinking that persons have a duty to adhere to the limits of public reasons, I would think of judges as a moral archetype, and I don’t see the reasons for the asymmetry with others (as a moral archetype). Finally, I think that legislation does require more of a shared rationale than Kevin seems to think. As an example, think about human rights instruments. All those “whereas” statements in the beginning before you get to the principles or regulations reflect a shared rationale for the “laws.” The same is true in much domestic legislation. Much domestic legislation starts with defining the central terms of the legislation, and this no doubt requires debate and compromise. But, the aim is to settle some interpretative issues that can be anticipated, add clarity, etc. But, the point here is that is is a demonstration of a kind of shared understanding, and one that often draws on a shared rationale. Moreover, SCOTUS often looks to the Congressional Record to try to understand the intent of legislators with respect to a particular act, bill, statute, etc. They are seeking to understand the intent of the legislative body–as one entity. This also means that legislation, even if the result of compromises and bargaining, rest on a shared reasons model of deliberation.

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