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RACHAEL PATTERSON[*]
[This article provides a critical review of Rawls’ effort in Political Liberalism to construct a political theory of justice compatible with the fact of reasonable pluralism. Particular attention is given to the ‘idea of public reason’ and political liberalism’s liberal neutrality. It is argued that because of its liberal neutrality, political liberalism would preclude people from endorsing at least some reasonable comprehensive views and, therefore, as a theory it lacks the necessary stability required to be as successful as Rawls claims.]
This article critically examines John Rawls’ theory of political liberalism and the idea of public reason, and assesses whether they are able to generate the support and stability Rawls claims they need in order to be successful. The first part of this paper is expository and provides an overview of political liberalism and Rawls’ idea of public reason. The second part examines ambiguity in the interpretation and application of the principle of legitimacy whilst the final section critiques the theory’s liberal neutrality. This neutrality is shown to be incompatible with comprehensive conceptions of the good that govern personal (and, therefore, also political) behaviour since it is impossible to simultaneously uphold such a conception and satisfy the requirements contained within the idea of public reason. On this basis, namely that political liberalism would preclude people from endorsing at least some reasonable comprehensive views, it is argued to be an unsatisfactory and unstable political conception that is unable to achieve Rawls’ stated aim of accommodating the fact of reasonable pluralism.
The idea of public reason proposed by Rawls rests upon the principles and approach first set out in his theory, justice as fairness.[1] In Political Liberalism, Rawls recasts justice as fairness as a political conception of justice, which he calls “political liberalism”.[2] This political conception adopts the same constructivist approach and affirms the same principles of justice but differs from justice as fairness in its attempt to accommodate the fact of reasonable pluralism.[3] Rawls does this in two ways. He confines its application to the political sphere and resorts to proceduralism with the introduction of “guidelines of inquiry” in the form of a number of anti-perfectionist norms.[4]
In assessing under what circumstances the use of political power might be legitimate, Rawls observes that political relationships in constitutional regimes are characterised by two special features:
1. they are involuntary relationships within the basic structure of society that we enter by birth and exit only with death; and
2. political power is always coercive power backed by sanctions.[5]
On account of these considerations and in light of the fact of reasonable pluralism, Rawls conjectures that persons in the original position would select, as governing the terms of their political relations, the two principles of justice and a set of procedural norms specifying how these substantive principles are to be applied.[6]
The original position is a hypothetical situation wherein rational but mutually disinterested individuals capable of a sense of justice and concerned to further their own interests, select, from behind a veil of ignorance, principles of justice applicable to the basic structure of society.[7] The veil of ignorance means that persons in the hypothetical original position are unaware of such things as their wealth, intelligence, social standing or conception of good.[8] As a result they are unable to predict what effect their decisions will have on their own life circumstances. If individuals in the original position choose distributive principles that benefit some but disadvantage others, they cannot be sure whether they will be favoured or whether they will be disadvantaged.
Rawls argues that because of this that they will select principles beneficial to all. Since no one is able to select principles designed in his or her own favour, persons in the original position are in an initial position of equality. The principles they choose will be free from bias and the result of a fair agreement.[9]
When a society conforms to the demands of political liberalism, it will present, in response to political problems, solutions that satisfy the two principles of justice. The manner in which these solutions are chosen will also accord to the procedural norms put forward in the original position. These norms constitute “guidelines of inquiry” and set out the procedures, reasoning and types of information that may be relied upon when addressing political issues relating to constitutional essentials or fundamental issues of justice.[10]
Rawls distinguishes between two types of constitutional essentials: (a) the ‘fundamental principles that specify the general structure of government and the political process’ (for example, the powers of the legislature and judiciary, and the doctrine of separation of powers); and (b) the equal basic rights and liberties provided for by Rawls’ first substantive principle of justice (selected in the original position and including the right to vote, freedom of association and thought, and protection of the rule of law).
Among these norms Rawls includes the principle of legitimacy.[11] This principle holds that the exercise of political power is proper only when it is in accordance with a constitution that ‘all citizens may reasonably be expected to endorse in light of principles and ideals acceptable to them as reasonable and rational’.[12] Extension of this principle from the general (the constitutional structure) to the particular (legislation, policy and case law) further requires that any disputes concerning ‘constitutional essentials, or basic questions of justice, ... be settled, so far as possible, by principles and ideals that can be similarly endorsed’.[13]
Responsibility to comply with this rests not only with judges, legislators and other public office holders but also citizens. This requirement, which Rawls calls the ‘idea of public reason’, provides that people should exercise political power in relation to certain issues (e.g. when publicly discussing or voting in relation to fundamental issues of justice) only when they sincerely and reasonably believe that the reasons they offer for their political actions are sufficient and capable of reasonably being accepted by other citizens.[14] In other words, the idea of public reason establishes a way of reasoning in public about public issues of importance that citizens and authorities are to abide by and is distinct from other non-public ways of reasoning such as that adopted by churches, universities and other associations belonging to the background culture of society.
By restricting justice as fairness to the political domain, Rawls seeks to avoid conflict between its requirements and the various incompatible but reasonable comprehensive doctrines held by citizens. He states that political liberalism is not concerned with the things that religious or non-religious comprehensive doctrines are since it is a political (as opposed to a comprehensive) conception of justice.[15] By this Rawls means that the theory is applied only to the basic structure of society and is worked out not on the basis of any comprehensive doctrine but as a freestanding view consisting of principles that would be identified as necessary in the original position.[16]
Principles selected in the original position are neutral in relation to the various available comprehensive views and conceptions of the good.[17] Rawls defines a conception of good as an understanding of what is valuable in life. He states that it is a more or less determinate scheme of definite final ends (being ends that one wants to realise for their own sake) as well as attachments and loyalties to particular persons and institutions.[18] These attachments give rise to devotions and affections such that the flourishing of these persons and associations is also part of one’s conception of good. Rawls explains that one’s understanding of what is required for human flourishing is connected to one’s comprehensive views about the world and one’s position within it by ascribing value and significance to various ends.[19]
Parties in the original position are aware that they have a comprehensive view and a conception of good but do not know what that view or conception is.[20] Rawls writes:
we suppose the parties represent citizens regarded as having at any given time a determinate conception of the good, that is, a conception specified by certain definite final ends, attachments, and loyalties to particular persons and institutions, and interpreted in the light of some comprehensive religious, philosophical, or moral doctrine. To be sure, the parties do not know the content of these determinate conceptions, or the conceptions used to interpret them. But they still have a third high-order interest to guide them, for they must try to adopt principles of justice that enable the person represented to protect and advance some determinate (but unspecified) conceptions of the good over a complete life, allowing for possible changes of mind and conversions from one comprehensive conception to another.[21]
This means that while they have an interest in adopting principles that protect their ability to hold and advance some unspecified conception, they are unable to either affirm or deny the truth of any particular conception and are forced to adopt a neutral position.[22]
Political liberalism is also neutral with regard to the types of reasons that satisfy the principle of legitimacy. Legislation that is justified by some comprehensive doctrine or its associated conception of the good, for example, will generally not satisfy the requirements of public reason since it would not be reasonable to expect citizens with contrary comprehensive views to acquiesce. As a result political liberalism requires the state to ensure that (a) all citizens have an equal opportunity to advance their conceptions of the good, and (b) nothing is intentionally done to promote any particular comprehensive doctrine above another.[23]
Rawls claims that, due to its neutrality, political liberalism does not contain any ideas or principles that a reasonable comprehensive doctrine could not reasonably be expected to support and that it may be defended as a political conception without criticising or rejecting a citizen’s religious or philosophical commitments.[24] He argues that there is no reason why citizens should not be able to simultaneously endorse both political liberalism and their own comprehensive belief.[25] In addition to this, Rawls also states that political liberalism is capable of being endorsed by all reasonable comprehensive doctrines and that all citizens are able to affirm it as a moral conception on the basis of their comprehensive views.[26] Rawls notes that the appeal of political liberalism extends to the idea of public reason, stating that ‘citizens affirm the ideal of public reason, not as a result of political compromise, as in a modus vivendi, but from within their own reasonable doctrines’.[27]
According to Rawls, the acceptability of political liberalism provides a point of consensus over which otherwise incompatible comprehensive points of view may agree. Thus, despite the fact of reasonable pluralism, a reasonable overlapping consensus of support in favour of political liberalism is possible wherein all citizens and all reasonable comprehensive doctrines endorse it.[28]
On the other hand, if political liberalism is not supported by a reasonable overlapping consensus then it is not a sufficiently stable political conception.[29] This is also the case if it is incapable of engendering a sufficient sense of justice in citizens to withstand or prevent attempts by citizens to assert their comprehensive views politically and, in so doing, suppress the basic political rights and liberties of their fellow citizens.[30] If, and only if, political liberalism satisfies these two requirements is it an adequate political conception capable of resulting in enduring stability. If it does not Rawls recognises that it is in difficulty and that one would have to evaluate what changes could be made to the theory to improve its stability.[31]
The principle of legitimacy provides that political issues concerning constitutional essentials and basic matters of justice should be settled on the basis of reasons that all citizens ‘may reasonably be expected to endorse’.[32] It has been argued by some that it is not entirely clear what Rawls means by this statement. John Finnis points out that this phrase could be interpreted in two different ways.[33] It could mean, for example, that in assessing the acceptability of the reasons one offers for political action, one must predict whether or not one’s fellow citizens will behave in such a way that they will reject or accept these reasons (a predictive interpretation).[34] Alternatively, it could be interpreted narrowly as requiring one to assess the strength of the reasons put forward for political action and for those reasons to be judged as sound reasons accessible to all reasonable people of goodwill if they can be established with recourse to natural reason (a normative interpretation).[35]
The former interpretation greatly restricts the types of reasons that can be relied upon as the basis for public action; there would be very few types or classes of reasons (if any) that all people would accept. The latter interpretation, on the other hand, widens the scope of public reason to include reasons that are put forward on the basis of rational argumentation.[36] While arguments offered on the basis of knowledge or truths restricted or revealed to only a select group of individuals would not suffice to justify the legitimate exercise of political power, principles offered by “rationalist believers” (being people who contend that their comprehensive religious or philosophical views can be fully established by reason) would.[37] This is subject to the proviso, of course, that the rationalist believers’ principles can in fact be established in this way.
Finnis notes that there is evidence in favour of the predictive external viewpoint interpretation.[38] Rawls says, for example, that even though a particular thesis may be true, reasonable persons ‘are bound to differ’ about it.[39] This is because reasons not expressed solely in terms of political values will inevitably contradict some citizens’ comprehensive views or conceptions of good and on this basis will not be acceptable to them. This phrase denotes a predictive mode of interpretation.
However, Finnis also observes that there is some support for the normative interpretation.[40] When Rawls says that ‘in discussing constitutional essentials and matters of basic justice, we are not to appeal to comprehensive religious and philosophical doctrines – to what we as individuals or members of associations see as the whole truth ... [but to] the plain truths now widely accepted, or available, to citizens generally’, he provides grounds for assessing our reasons for political action based on the availability of these reasons as plain truths.[41] Rawls also states that ‘each of us must have, and be ready to explain, a criterion of what principles and guidelines we may think other citizens ... may reasonably be expected to endorse along with us ... Of course, we may find that actually others fail to endorse the principles and guidelines our criterion selects. That is to be expected’.[42] This seems to rule out the predictive interpretation on the basis that the validity of the various principles selected by citizens does not turn on whether or not others might disagree.
An argument can be made, despite this ambiguity, in favour of the predictive interpretation. Rawls distinguishes between being reasonable and being rational in a similar way to the distinction made when we say ‘their proposal was perfectly rational given their strong bargaining position, but it was nevertheless highly unreasonable, even outrageous’.[43] According to Rawls, a person is reasonable when (given the assurance that others will likewise do so) he or she is ready to propose principles as fair terms of cooperation and to willingly abide by them. Elaborating further he states that ‘reasonable persons are not moved by the general good as such but by desire for its own sake a social world in which they, as free and equal persons, can cooperate with others on terms they can accept’.[44] Such persons insist that ‘reciprocity should hold within that world so that each benefits along with others’.[45]
On the other hand, a rational entity is, for Rawls, someone or something (such as an individual or corporation) who has ‘the powers of judgement and deliberation in seeking ends and interests peculiarly its own’.[46] Such an entity is rational in how it affirms and orders these interests and ends, and in its selection of means.[47] Rawls argues that a rational entity lacks a moral sensibility – that is, it does not desire to engage in fair cooperation on terms that others might reasonably be expected to endorse.[48]
Rawls conceives of what is rational differently to Finnis. While Finnis’ idea of rationality includes having the power of judgement and the ability to seek and order various ends and interests, Finnis also incorporates a standard by which one’s ordering of ends and interests, and reasons for so doing, may be judged (i.e. on the basis of rational strength).[49] Rawls shies away from this, presumably, because to do so would be to permit people’s comprehensive views to be judged, criticised and rejected. Any introduction of a standard by which an entity’s rationality is assessed other than on the basis of “reasonableness” would contravene the criterion of reciprocity.
Robert P George argues that Rawls cannot accept the normative understanding of the principle of legitimacy. He states that Rawls’ aim is to limit the range of ‘morally acceptable doctrines of political morality in circumstances of moral pluralism to a single doctrine: political liberalism’.[50] George points out that a wide conception of public reason will not achieve this goal since it will not rule out appeals to principles and propositions drawn from liberal and non-liberal comprehensive views and argued for on the basis of tenants supported by rational argument.[51] However, George also observes that if public reason is framed in a way that appeals to such principles are prohibited then Rawls has the very difficult task of showing why reliance on these principles are unfair and he must do so without recourse to comprehensive liberalism.
To the extent that there is any ambiguity over how the principle of legitimacy is to be applied, this is problematic for political liberalism as a theory that requires a considerable degree of stability.
Although Rawls states that all reasonable comprehensive views should be able to endorse political liberalism, this is simply not true. Rawls fails to give sufficient consideration to the fact that political liberalism will vary in its acceptability for different comprehensive views. Although Rawls distinguishes political liberalism from the comprehensive liberalisms of those such as Kant and Mill, he admits that his political conception is a liberal conception.[52] Many of the political values endorsed by political liberalism are typically common to liberalism. Political liberalism, through the veil of ignorance, is neutral on the conception of good but gives special emphasis to the values of freedom and equality in adopting the two principles of justice. Liberal comprehensive doctrines (or liberalism) also place great importance on liberty, equality and fraternity, and (though not always) adopt a neutral position on the conception of good. The comprehensive liberalism of Mill, for examples, holds that liberty requires that freedom is maximised for all and government interference limited to instances when restrictions on freedom are necessary for the sake of preventing harm to others or protecting freedom itself.[53]
Egalitarian liberalism may permit further infringements upon liberty for the sake of equality and fraternity but, as in Rawls’ justice as fairness, such infringements are limited.[54] Although some liberals such as Steven Macedo reject what they call “liberal neutrality”, most comprehensive liberal doctrines seek to minimise state paternalism and a great number also support the view that “the state should not seek to promote any particular conception of the good life because of its presumed ... superiority".[55]
Non-liberal comprehensive views, on the other hand, may endorse a particular conception of good and emphasise values in addition to or other than liberty, fraternity and equality. Political liberalism, as such, is less palatable, less familiar and less acceptable to holders of non-liberal comprehensive doctrines than those who subscribe to liberalism.
Does this matter? Rawls does not seem to think so.
Rawls claims that one should be able to simultaneously endorse both political liberalism and whatever reasonable comprehensive doctrine one chooses, having the former dictate one’s political actions and the latter one’s non-public actions. This is in part possible because Rawls’ political conception of the person classifies the commitments and attachments that specify a citizen’s moral identity as falling within one of two kinds: political or non-political. [56] He states:
I assume that citizen’s overall views have two parts: one part can be seen to be, or coincide, with the publicly recognised political conception of justice; the other part is a (fully or partially) comprehensive doctrine to which the political conception is in some manner related.[57]
Rawls distinguishes between one’s political and non-political views and, as a result,
between one’s political and non-political acts. This distinction is problematic. Firstly, every political actor is a human person. This is so both in reality and in Rawls’ constructive approach where it is assumed that the actors placed within the original position are persons and, likewise, that the citizens, judges, and politicians bound by the idea of public reason are also human persons.[58] Secondly, a committed act can be ascribed to and described in light of the actor. If the actor is a human person, then the act can be described as being the act of a person. In other words, it is a ‘personal act’. This holds true whether a person makes their lunch, casts a vote or makes a judicial decision.
So, even though one act may be political in nature and another act non-political, if both are committed by a person then they share the same genesis. As a result they can be considered or classified as being ‘personal’. For this reason it is argued that every political act has no existence apart from the personal acts of the people involved.[59] One’s public or political acts are also one’s personal acts and one’s public reasons for acting are also one’s personal reasons. These reasons and acts are the outcome of an individual’s practical reasoning (where practical thought is thinking about what one ought to do and practical reason is reasoning about what one ought to do).[60]
If one chooses to act in a certain way this choice is an acknowledgement (whether conscious or not) that there is some good to be gained in pursuing that course of action.[61] Individuals will refer to their particular conception of good in deciding how to act (i.e. their practical reason) because this conception determines what they consider to be good (i.e. what is essential for their own flourishing and the flourishing of others and so what is worth being gained through action). Because political acts are also personal acts, they will refer to this conception when they make decisions on how they ought to behave in the political domain.
At this point in the paper a Rawlsian might observe that because political liberalism is neutral and it can be endorsed by all reasonable comprehensive doctrines, one’s public reasoning on the basis of the values prescribed by political liberalism is also, in effect, reasoning based upon one’s comprehensive view. This cannot be the case, however, for comprehensive doctrines with definite conceptions of the human good which require that an individual’s practical reasoning conform to the demands of the “good” life (as most, if not all, conceptions do).
Conceptions of the good require people to act and reason in a certain way at least in so far as they should not deny, disregard or degrade the various things, values or objects defined by the conception as forming part of the “good”. Although Rawls states that political liberalism neither affirms nor denies the truth of any comprehensive doctrine, it does take a definite position in that it asks people to refrain from referring to or relying on any conception of the good in (a) selecting principles to govern society in the original position, and (b) their public reasoning. The constructivist approach adopted by Rawls implicitly denies the proposition (forwarded by various comprehensive views) that practical reason must or ought to be guided by a conception of the good.
Because public reason asks people to refrain from referring to their conception of good in making decisions or acting with regard to constitutional essentials and matters of basic justice (being acts and reasoning of a personal nature), but comprehensive conceptions of the good require that all personal acts be directed towards the “good” (as conceived by that conception), it is impossible for a person to simultaneously endorse political liberalism and a comprehensive conception of the good. In order to abide by the tenets of public reason one must reject one’s comprehensive conception of the good or, at the very least, ignore it when acting within the political domain. Contrary to Rawls’ claim, therefore, it is not possible to defend political liberalism as a political conception without rejecting or at least curtailing citizens’ comprehensive views. As a consequence it is difficult to imagine citizens being able to ‘affirm the ideal of public reason, not as a result of political compromise, as in a modus vivendi, but from within their own reasonable doctrines’.[62] This also means that political liberalism’s neutral position is contrary to its own standards for it fails to adequately accommodate the fact of reasonable pluralism.
The idea of public reason governs the exercise of political power in relation to fundamental issues of justice. The decision as to whether or not society and its constitution should be governed by principles selected in the original position falls within the realm of constitutional essentials and matters of basic justice. It is unreasonable (by political liberalism’s own standards) for holders of liberal comprehensive views to propose a liberal political conception and expect holders of non-liberal comprehensive views to endorse that political conception when it conflicts with their idea of the good and despite the fact that it is much easier for people of the liberal persuasion to accept this public conception than others.
Given the conceivable number and range of comprehensive views that endorse a conception of good, it is not likely that political liberalism could ever generate a reasonable overlapping consensus in its support. If this is the case then political liberalism may be incapable of ensuring the stable political society envisaged by Rawls and thus unable to avoid the problems faced by justice as fairness.
In response it might be argued by those who support Rawls that it does not matter if political liberalism fails to accommodate comprehensive doctrines that support a definite conception of the good. An argument in support of this proposition might take the following form:
Political liberalism aims only to accommodate a plurality of reasonable comprehensive doctrines and not a plurality of unreasonable comprehensive doctrines. It does not have to take into account, as a political theory, the unreasonable demands of unreasonable comprehensive doctrines. Comprehensive conceptions of the good are unreasonable in so far as they require that practical and public reasoning be conducted in a way that conforms to the demands of a particular conception of the ‘good’ life. This requirement is unreasonable because it applies to the public reasoning of citizens with contrary comprehensive views (that is, it is unreasonable to expect citizens with incompatible but reasonable comprehensive views to abide by this requirement).
This argument, however, is contrary to the approach that Rawls takes in defining “reasonable comprehensive doctrines”. Rawls states that his account is “deliberately loose” so as to avoid being “arbitrary and exclusive”.[63] He argues that one must avoid classifying comprehensive doctrines as unreasonable without ‘strong grounds based on clear aspects of the reasonable itself’.[64] To define all or most comprehensive conceptions of the good as unreasonable because all or most place at least some demands on practical reason (without examining the merits of each conception and given the conceivable number and range of such views) is decidedly exclusive (admitting only liberal doctrines or those without a conception of good) and arguably also arbitrary.
If the “clear aspects of the reasonable itself” are examined, it is obvious that not all comprehensive conceptions of the good are unreasonable even if some are. Rawls states, for example, that political liberalism assumes that reasonable comprehensive doctrines do not reject the essentials of a democratic regime.[65] On this basis at least it is possible for comprehensive views with a definite conception of good to be considered reasonable since having such a conception does not necessarily preclude a theory from endorsing the essentials of a democratic regime.
Rawls states that reasonable people are those who ‘will think it unreasonable to use political power, should they possess it, to repress comprehensive views that are not unreasonable though different from their own’.[66] From this definition it can be taken that a reasonable comprehensive doctrine is one that supports the axiom that it is unreasonable to repress other ‘comprehensive views that are not unreasonable though different’ from one’s own. Another way of phrasing this definition would be to state that a reasonable comprehensive doctrine is one that supports the axiom that it is not reasonable to repress reasonable comprehensive views. In other words, something is reasonable if it respects what is reasonable.
This definition, however, is incomplete. It lacks a meaningful statement on the meaning of the term “reasonable” and is therefore unhelpful. Rawls does, however, attempt to define “reasonable” in other instances. As discussed, according to Rawls, a person is reasonable when (given the assurance that others will likewise do so) he or she is ready to propose principles as fair terms of cooperation and to willingly abide by them.[67] He also states that being reasonable involves a willingness to recognise the burdens of judgement and to accept their consequences for the use of public reason in directing the legitimate exercise of political power in a constitutional regime.[68]
Whether or not comprehensive conceptions of the good are reasonable under this definition depends, in part, on what is meant by “fair terms of cooperation”. If it is the case that the only principles capable of constituting fair terms of cooperation are those that would be selected in the original position then comprehensive conceptions of the good are not reasonable. This, however, is not the case.
It is possible for principles to be fair even though they would not be selected in the original position. The actors in the original position are rationally self-interested.[69] This means that they will cooperate with each other only in so far as it is consistent with each of them getting what they want.[70] They have no concern for the well being of other people as an independent concern. However, outside the original position (i.e. in the real world) it is possible for people to prefer the achievement of fairness ahead of the advancement of their own interests.[71] If someone prefers fairness simply for its own sake they will act and reason in a way that ascribes an intrinsic value to fairness. In such circumstances fairness is not merely a means to some other end but is the ultimate end or good itself. People who value fairness as intrinsically valuable do so because their conception of good ascribes it this value and this requires them to attribute it with significance in their practical reasoning. Such people have, therefore, an incentive to introduce laws or other norms that govern society on fair terms of cooperation. Thus, at least some comprehensive conceptions of the good are capable of proposing fair terms of cooperation and are therefore “reasonable” in this regard.
Turning now to Rawls’ second requirement of reasonableness, one must address the following: do comprehensive conceptions of the good recognise the burdens of judgement?
Rawls defines “burdens of judgement” as the causes of reasonable disagreement.[72] Rawls explains that all judgements entail the making of (a) rational assessments, (b) assessments as to reasonableness, and (c) theoretical assessments. Because of the complexity of each of these elements and due to other considerations (such as the indeterminacy or vagueness of comprehensive views and the different ways in which each person weights different values) it can be difficult for people to make sound judgements and for them to agree.[73] When two people disagree because of the burdens of judgement neither can be said to be unreasonable: that is, they do not differ solely because of ‘ignorance and perversity, or ...rivalries for power, status or economic gain’.[74] Rawls argues that because of the burdens of judgement we must recognise that our comprehensive views have no special claims for other people beyond their own view of its merits.[75]
There is nothing that prevents, per se, a comprehensive conception of good from recognising the burdens of judgement as a source of disagreement among reasonable people. Just because one ascribes to a conception of good does not prevent one from acknowledging that not all differences of opinion are attributable to ignorance, perversity or greed. Rawls fails, however, to attribute appropriate significance to the fact that in some cases a person may differ in judgement from another simply because that person was wrong in his or her practical reasoning on account of an illogical intermediate error in his or her line of thought. Such a person may be good willed and invincibly ignorant but they cannot be perfectly reasonable.[76] If the correct decision can be explained to them in a rational manner and in a way that they can understand, why should this not occur? Why should people refrain from explaining that someone has made a mistake simply out of respect for the burdens of judgement? The requirement, as a condition precedent for “reasonableness”, that one must recognise the burdens of judgement and accept their consequences for the use of public reason, is inappropriate and unjustified.
Comprehensive views that ascribe value to rationality in practical reasoning cannot accept, as Rawls does, that most causes of disagreement are due to the burdens of judgement and that this requires us to refrain from claiming that a particular view, even if perfectly rational, is true. If a principle, decision or viewpoint is perfectly rational it will be arguable with recourse to human reason. That is, it will be accessible to and able to be understood by most human beings since they are, in Rawls' words, rational entities. If the normative interpretation of the principle of legitimacy is taken, any principle or viewpoint that is rational is also “reasonable”.[77] Thus any comprehensive doctrine that can justify, with resort to reason, a requirement that people take a particular conception of the good into account in their practical reasoning is also “reasonable”.
This means, therefore, that even if the supposed requirements that the burdens of judgement place on “reasonableness” are not disregarded because of its lack of justification, there will be at least some reasonable comprehensive doctrines that support a particular conception of good and which require that practical reasoning take the conception into account. This presents a serious problem for Rawls' political liberalism. Thus, despite the claims made by Rawls, political liberalism cannot be considered to be ‘the most appropriate conception of justice for specifying the terms of social cooperation between citizens regarded as free and equal, and as normal and fully cooperating members of society of a complete life’.[78] In turn, this means, of course, that the idea of public reason, as conceived and argued by Rawls, is inappropriate as a standard by which to judge the reasons offered in support of the exercise of government power.
[*] Lecturer, School of Law, Deakin University.
[1] John Rawls, A Theory of Justice (1971) 4.
[2] John Rawls, Political Liberalism, (1993) xviii.
[3] Ibid 5. The fact of reasonable pluralism refers to the way in which well-ordered democratic societies tolerate and allow for a plurality of reasonable but incompatible comprehensive doctrines.
[4] Ibid 223.
[5] Ibid 216.
[6] Ibid, 225.
[7] Rawls, above n 1, 11. By ‘basic structure of society’, Rawls means the way in which the basic institutions of society fit together and make distributive decisions as to the assignment of rights and duties.
[8] Ibid.
[9] Ibid 12.
[10] Rawls, above n 2, 137 and 227.
[11] Ibid 136 and 217.
[12] Ibid 217.
[13] Rawls, above n 2, 218 and John Rawls, ‘The Idea of Public Reason Revisited’ in John Rawls, The Law of Peoples (1999) 137.
[14] Rawls, above n 2, 14 and 218.
[15] Ibid 14.
[16] Ibid.
[17] Ibid 19 and 104.
[18] Ibid.
[19] Ibid.
[20] Ibid 74.
[21] Ibid.
[22] Ibid.
[23] Ibid 192.
[24] Ibid 12 and 137.
[25] Ibid xl.
[26] Ibid 174.
[27] Ibid 218.
[28] Ibid 389.
[29] Ibid 141.
[30] Ibid 142.
[31] Ibid 66.
[32] Ibid 217.
[33] John Finnis, ‘Abortion, Natural Law and Public Reason’ in Robert P George and Christopher Wolfe, Natural Law and Public Reason (2000) 79.
[34] Ibid.
[35] John Finnis, ‘Natural Law and Public Reason’ in Robert P George, The Clash of Orthodoxies (2001) 50.
[36] Ibid.
[37] Ibid.
[38] Finnis, above n 32, 79.
[39] Rawls, above n 2, 183.
[40] Finnis, above n 33, 79.
[41] Rawls, above n 2, 225.
[42] Ibid 226-227.
[43] Ibid 48.
[44] Ibid 49.
[45] Ibid.
[46] Ibid 224-225.
[47] Ibid 50.
[48] Ibid.
[49] Finnis, above n 33, 82.
[50] George, above n 35, 51.
[51] Ibid.
[52] Rawls, above n 2, 143 and 78.
[53] John Stuart Mill, On Liberty (1859) 68.
[54] Rawls’ two principles of justice are subject to a lexicographical ordering in which the first is given priority over the second.
[55] Charles Larmore, Patterns of Moral Complexity (1987) 43.
[56] Rawls, above n 1, 31.
[57] Ibid 38.
[58] Ibid 19, 25 and 30. Rawls defines citizens as free and equal persons.
[59] Finnis, above n 33, 79.
[60] John Finnis, Natural Law and Natural Rights (1980) 12.
[61] See Aquinas, Summa Theologica, Ia. Iiae. Q94 Art 2.
[62] Rawls, above n 2, 218.
[63] Ibid 59.
[64] Ibid.
[65] Ibid xviii.
[66] Ibid 60.
[67] Ibid 48.
[68] Ibid 54.
[69] John Rawls, A Theory of Justice (revised ed, 1999) 16.
[70] Ibid 17.
[71] John Finnis, ‘The Authority of Law in the Predicament of Contemporary Social Theory’ (1984) 1 Notre Dame Journal of Law, Ethics & Public Policy 1 115, 127.
[72] Rawls, above n 2, 55.
[73] Ibid.
[74] Ibid 58.
[75] Ibid 55.
[76] Finnis, above n 33, 84.
[77] Rawls, above n 2, 217 and Finnis, above n 33, 79.
[78] Rawls, above n 2, 20.
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