Trading Truth for Legitimacy in the Liberal State: Defending John Rawls's Pragmatism, 65 Studies in...

Running Head: TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE

[Accepted for Publication August 2012. Forthcoming in a special issue of Studies in

Law, Politics, and Society, focusing on law in the liberal state]

Trading Truth for Legitimacy in the Liberal State:

Defending John Rawls’s Pragmatism

John P. Anderson

Assistant Professor of Law

Mississippi College School of Law

151 E. Griffith Street

Jackson, MS 39201

601.925.7157

jpanders@mc.edu

Abstract

Post-Enlightenment liberalism faces a paradox: The liberal principle of

legitimacy demands states justify their constitutional order in terms citizens can accept,

but there is no uncontroversial comprehensive conception of justice on which to form the

requisite consensus. Rawls resolves the paradox by embracing a pragmatism that

abandons the concept of truth in the political forum to secure consensus and legitimacy.

Philosophers have challenged the idea of justice without truth as incoherent, and social

critics have attacked it as naïve. This paper defends Rawls’s pragmatism against such

critics and argues that the future of liberal constitutionalism may depend on its success.

TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE

1. Introduction: Addressing Liberal Constitutionalism’s Post-Enlightenment Paradox

It is a cornerstone of liberalism that the state’s exercise of coercive power is only

legitimate where it conforms to a constitutional order that can be justified to citizens in

terms they can accept. This requirement of reciprocity is sometimes referred to as the

liberal principle of legitimacy. Compliance with this principle is crucial for liberals

because of the harm that results from ignoring it. For when the state justifies its use of

coercive power in terms of a controversial moral, religious, or philosophical doctrine

some citizens reasonably reject, those citizens are unjustly alienated, marginalized, and

used. Their contributions to the cooperative scheme are taken from them and used in the

name of a religion or other worldview they may vehemently deny.

Satisfying the liberal principle of legitimacy was not difficult for the

Enlightenment liberal, for she could always justify coercion in conformity with a liberal

constitutional order as necessary to respect the essential nature of persons as free and

equal. For the Enlightenment liberal, this essential nature of persons was considered

demonstrable by principles of universal reason or some other source of universal truth.

Since Enlightenment liberals were convinced such universal truths could not be rationally

rejected, their availability alone was sufficient to satisfy the liberal principle of

legitimacy. The post-Enlightenment liberal, however, is confronted with a pluralistic,

post-secular political culture that regards any appeal to “universal truth” or the “essential

nature of persons” in explaining or justifying the exercise of political power as suspect at

best. The result is a paradox: The liberal principle of legitimacy demands that the state

justify at least its basic constitutional order in terms all citizens can accept, but there is

simply no uncontroversial comprehensive conception of human nature, morality, religion,

or justice on which to form the requisite consensus. This paradox seems to leave the

liberal state with two alternatives: (1) The state may bite the bullet by stubbornly

affirming one controversial conception of justice as true in violation of the liberal

principle of legitimacy. Or (2) the state may refuse to endorse any single comprehensive

doctrine as providing the recognized foundation for the constitutional order and instead

allow all the representative moral and religious doctrines to compete openly in the public

political forum (in political campaigns, legislative sessions, and the courts). This second

alternative (I shall refer to this as the “open competition model”) has been defended by

some liberals as the most promising means of achieving liberalism’s goal of reciprocity

in pluralistic societies (see, e.g., Quinn 2009), but it has also gained recent popularity

among post-secular critics of liberalism (see, e.g., Wolterstorff 2009).

My goals in this article are twofold. First, I shall argue that the open competition

model is not a viable option for Western constitutional democracies because it leads to

political instability, stifles public political discourse, and ultimately itself violates the

liberal principle of legitimacy by unjustly marginalizing citizens holding minority

worldviews. Once the open competition model is rejected, however, liberalism is left

without options that trade on appeals to comprehensive religious or secular doctrines. So

if liberalism is to survive on its own terms in the post-Enlightenment era, it can only do

so by re-imagining itself to cope with a world in which truth claims concerning

comprehensive doctrines no longer have a public role in supporting the constitutional

order. This leads to the second goal of this article.

I shall argue John Rawls’s pragmatism, by avoiding the concept of truth

altogether in the justification and legitimation of the basic constitutional order, offers the

most promising solution to the post-Enlightenment liberal paradox. This argument

begins with a summary of Rawls’s method and an explanation of how it can accomplish

this crucial goal, but it would not be complete without answering important criticisms.

Rawls’s pragmatism has been attacked by liberals and non-liberals alike. Liberal

philosophers have rejected Rawls’s method by arguing that any attempt to justify a

conception of justice without also claiming it is true will lead to incoherence or vicious

circularity. Social critics outside the liberal tradition have challenged Rawls’s attempt to

rid the public political discourse of controversial truth claims as sacrificing far too much

at the shrine of neutrality. For these critics, privileging the ideal of neutrality in this way

just reflects another controversial dogmatism, “secular fundamentalism.” Moreover, they

argue that even if neutrality in public political discourse were an ideal worth pursuing,

Rawls’s hope to build an overlapping consensus based on nothing more than

“freestanding” ideas latent in the public political culture is a fantasy in today’s

increasingly more pluralistic democracies. I argue these criticisms (both liberal and non-

liberal) ultimately fall flat because they depend on misunderstandings of Rawls that can

be brought to light by a careful articulation of Rawls’s often-neglected tripartite structure

for justification. Ultimately, however, my aim is not just to show that Rawls’s

pragmatism can answer its critics, but to argue that it offers liberalism the best hope of

overcoming its Post-Enlightenment paradox and continuing to flourish in an increasingly

more pluralistic world.

2. Problems for the Open Competition Model

To motivate the defense of Rawls’s pragmatism that follows, I begin by

explaining why the principal post-Enlightenment alternative, the open competition

model, is not viable.

The open competition model recommends a political culture wherein adherents to

irreconcilable comprehensive doctrines can openly expound and develop those doctrines

in the public political forum as express justifications and sources of authority for the

state’s constitutional order. Such openness must include debate among, and justification

for action by, political candidates, legislators, judges, and other government officials.

For if restrictions were placed on the reasons offered by such public political figures, they

would have to be justified by appeal to some shared overarching comprehensive doctrine

the non-existence of which is a basic premise of the open competition model.1 Under the

open competition model, members of a society’s representative groups of thought and

faith are encouraged to adopt a live-and-let-live attitude, so long as that attitude can be

maintained from within their respective comprehensive doctrines.2

Three concerning consequences can be expected from adopting the open

competition model in answer to the post-Enlightenment liberal paradox. First, we can

never expect the social consensus that is reached as a result of this competition among

irreconcilable comprehensive doctrines to amount to more than what Rawls described as

a modus vivendi. A modus vivendi represents an equilibrium point at which parties find

that though their fundamental commitments and aims are different, observing rules

reached by compromise is, at this time, in their best interest. Because social consensus as

a modus vivendi is built by appeal to the separate interests of the parties, and not a shared

moral object, it is subject to instability and unlikely to endure. This is due to the problem

of assurance.3 The problem of assurance arises at the individual level where a person’s

reasons for contributing her fair share to a cooperative scheme are outweighed by

concerns that others will not contribute. It is easy for the state to fix this problem at the

individual level by imposing a system of penalties for non-compliance, but the problem is

more difficult to resolve where it arises at the level of ethnic, moral, cultural, or religious

groups. As Thomas Pogge explains, at the group level, “the relevant suspicion is not that

others may be shirking their responsibilities under the scheme, but that major groups may

be seeking through their legitimate political and economic power to shift the terms of the

institutional scheme itself in their favor” (Pogge 1989: 101-102). This fear results in a

Hobbesian escalation of antagonism and instability in the political arena. Parties can be

expected to make preemptive strikes on one another through legitimate political means.

A modus vivendi may be expected to continue to balance these interests and soften the

impact of shifts in power among the competing groups up to a point. But where power is

balanced by nothing more than a modus vivendi, there is no guarantee the strongest

groups will not compound their advantages and eventually force others to accept the

exercise of coercive power on their terms, leaving the weaker groups with no alternatives

but to endure, fight, or flee.

One might argue that the fact that over time the modus vivendi will likely come to

reflect the strongest comprehensive doctrine represented in a society is not particularly

alarming where that society is liberal because the substantive demands of the resulting

constitutional order should nevertheless remain liberal. For example, even if officially

justified by appeal to Christ’s Sermon on the Mount, a liberal constitutional order will

still reflect a healthy toleration for other religions and a continued respect for persons as

free and equal. But even so, damage is done. One of the characteristics of a pluralistic

society is that citizens’ identities and self-respect are crucially dependent upon the

comprehensive doctrines to which they subscribe. As noted above, when the

constitutional order of a pluralistic state is expressly justified (by judicial precedent,

legislative history, or presidential articulation) in, say, Christian terms that Muslims,

Buddhists, and atheists cannot accept, the latter are insulted, demeaned, and alienated.

They become outsiders to the political community, relegated to a second-class status.

This is the second problem with the open competition model, and it is precisely the

problem the liberal principle of legitimacy guards against.

Finally, there is the concern that the open competition model may have a limiting

effect on public political discourse. The open competition model encourages appeals to

the truth of controversial foundational principles in public political discourse. The

problem is that such appeals often have the effect of halting discourse altogether. For

example, Stephen Carter (1993) laments that

One good way to end a conversation—or to start an argument—is to tell a

group of well-educated professionals that you hold a political position

(preferably a controversial one, such as being against abortion or

pornography) because it is required by God’s will.

Rorty responds to Carter that such a statement “is far more likely to end a conversation

than to start an argument” (Rorty 1999: 170). For Rorty, an appeal to God’s will in this

context is no different from defending a pro-life position by saying, “I would never have

an abortion,” or defending a pro-pornography position by saying, “Reading Pornography

is about the only pleasure I get out of life these days.” According to Rorty, “the ensuing

silence masks the group’s inclination to say, ‘so what? We weren’t discussing your

private life; we were discussing public policy’” (Rorty 1999: 170-171). To the extent one

finds such a response unsatisfactory, Rorty asks what more can be said. Certainly the

atheist could respond to Carter’s believer, “Gee” I’m impressed. You must have a really

deep, sincere faith,” but Rorty wonders, “What happens then? What can either party do

for an encore?” For Rorty, far better to respond: “Okay, but since I don’t think there is

such a thing as the will of God, and since I doubt that we’ll get anywhere arguing theism

vs. atheism, let’s see if we have some shared premises on the basis of which to continue

our argument on abortion” (Rorty 1999: 171). In a later piece, Rorty emphasizes that this

argument goes for the appeal to the truth of all foundational principles in public political

discourse, both secular and religious. He recommends “citizens of a democracy should

try to keep the conversation going without citing unarguable first principles, either

philosophical or religious” (Rorty 2003: 149). In sum, political discourse can only be

productive in problem-solving, innovation, and dispute resolution where the conversation

is lively and ongoing. In licensing appeals to the truth of controversial first principles,

the open competition model risks cutting conversation short and undermining these

important ends by leaving participants to speak at cross purposes or not at all.

Thus, it turns out the open competition model cannot offer a better solution to the

post-Enlightenment liberal paradox than the state’s stubbornly affirming the truth of a

single controversial moral or religious doctrine as the public basis for its constitutional

order. Rawls offers a third way out, but it requires that liberalism embrace a pragmatism

that renounces the concept of truth altogether in the public political forum. In short, for

Rawls, if liberalism is to move beyond its post-Enlightenment paradox, it must trade truth

for legitimacy.

3. Rawls’s Method: Justification and Legitimacy without Truth

Rawls explains the above-described challenge facing post-Enlightenment liberal

democracies as stemming from the fact of reasonable pluralism. According to Rawls,

persons are reasonable to the extent they desire for its own sake “a social world in which

they, as free and equal, can cooperate with others on terms all can accept” (Rawls 1993:

50). Thus, as reasonable, persons will recognize the liberal principle of legitimacy.4 Yet

Rawls also observes that, due to the burdens of judgment,5 persons can remain reasonable

while rationally disagreeing over the philosophical meanings of the concepts of freedom

and equality from the standpoints of their different comprehensive moral doctrines.

Hence, “as a practical political matter no general moral conception can provide a publicly

recognized basis for a conception of justice in a modern democratic state” (Rawls,

“Political not Metaphysical,” 2001: 390). The result is the post-Enlightenment liberal

paradox outlined above.

Rawls’s novel response to this paradox is to apply the principle of toleration

implicit in the notion of the reasonable to political philosophy itself. For Rawls, the key

to resolving the liberal paradox is to limit the scope of political justification by recasting

the primary aim of political philosophy as practical and not metaphysical or

epistemological. So understood, political philosophy will not seek the construction of a

comprehensive but rather a “political” conception of justice, one that “draw[s] solely

upon basic intuitive ideas that are embedded in the political institutions of a constitutional

democratic regime and the public traditions of their interpretation” (Rawls, “Political not

Metaphysical,” 2001: 390). By constructing a conception of justice solely from shared

ideas latent in the public political culture, Rawls argues political philosophy can avoid

enlisting terms like “universal truth” and “the essential identity of persons” altogether.

These terms can be replaced with comprehensive-doctrine-neutral terms like

“reasonableness” and a “political conception of persons.” And consequently the

contemporary paradox of legitimacy raised by the fact of reasonable pluralism can be

avoided. For Rawls, the “hope is that, by this method of avoidance, as we might call it,

existing differences between contending political views can at least be moderated, even if

not entirely removed, so that social cooperation on the basis of mutual respect can be

maintained” (Rawls, “Political not Metaphysical,” 2001: 395). Thus, Rawls’s method

does not deny all the competing reasonable comprehensive moral, religious, or

philosophical theories’ claims to universal truth; it simply denies that answering the

question of which if any of these theories is the true theory is essential to articulating and

maintaining a just constitutional order. In short, the method “does not

criticize…religious, philosophical, or metaphysical accounts of the truth of moral

judgments and of their validity. Reasonableness is its standard of correctness, and given

its political aims, it need not go beyond that” (Rawls 1993, emphasis added: 127). But

how can a conception of justice that is to provide the publicly recognized basis for the

constitutional order of a liberal democracy be constructed without the concept of truth?

The claim that fundamental moral ideas may be “freestanding” is central to

Rawls’s method of avoidance. For an idea to be freestanding in a political society it must

have comprehensive-doctrine-neutral origins and sources of familiarity. For example,

citizens may identify certain fundamental moral ideas with the historical traditions of

their political culture in general (e.g., consistent themes in scholarship, literature and

film, and the qualities of a people’s political heroes and villains), or more specifically

with its constitution and traditions of constitutional interpretation,6 its historical

documents (e.g., in America, the Declaration of Independence, Jefferson’s “Bill for

Establishing Religious Freedom,” and the Federalist Papers), and its widely known

political writings (e.g., Lincoln’s Second Inaugural Address and King’s “Letter from

Birmingham Jail”). The idea is this: There are certain first-order moral propositions (e.g.,

“slavery is unjust”) adherents to all reasonable comprehensive moral, religious, and

philosophical doctrines must avow insofar as they are reasonable, even though they will

give different foundational reasons for doing so. If enough of these first-order moral

claims are found freestanding in a given public political culture, then it may be possible

to construct a “political” conception of justice from these ideas alone that has a

comprehensive-doctrine-neutral pedigree, and that can therefore provide for the basic

constitutional structure of a well-ordered society without privileging one comprehensive

doctrine and marginalizing others.

The problems that arise from the fact of reasonable pluralism emerge only at the

foundational level; for it is only at this level that one runs up against the claims that

distinguish one reasonable comprehensive doctrine from another. So, if a political

conception of justice could be justified to the satisfaction of every reasonable member of

a society at the level of freestanding first-order ideas alone, then questions regarding

controversial foundational claims need never arise at the level of public justification (at

least not when discussing constitutional essentials), and perhaps a basis could be

provided for public political justification that can comply with the liberal principle of

legitimacy. Under these circumstances, the paradox presented by the fact of reasonable

pluralism would be solved.

The justification of a political conception of justice progresses through three

phases: pro tanto justification, full individual justification, and public justification.

Where all three levels of justification are satisfied, the result is a reasonable overlapping

consensus on a political conception of justice. And where an overlapping consensus is

achieved around a political conception of justice, there is legitimacy and stability for the

right reasons.

The pro tanto phase of the justificatory process focuses exclusively on the

construction of a political conception of justice and is, in that sense, purely descriptive.

That is, one looks to nothing more than the basic intuitive ideas embedded in the public

political culture. One then constructs a conception of justice that generates principles that

match up with those freestanding ideas. To the extent that the political conception of

justice so constructed is complete (i.e., to the extent that the “the political values

specified by it can be suitably ordered, or balanced, so that those values alone give a

reasonable answer by public reason to all, or nearly all, questions concerning

constitutional essentials and basic justice” (Rawls 1995: 142-143)), it is justified pro

tanto. Pro tanto justification “tries to put no obstacles in the path of all reasonable

doctrines endorsing a political conception by eliminating from this conception any idea

which goes beyond the political and which not all reasonable doctrines could reasonably

be expected to endorse” (Rawls 1995: 145). But because the process of pro tanto

justification is itself descriptive (taking the public political culture as it finds it) and

therefore presupposes no values, such justification of a political conception of justice

guarantees neither its normativity nor its legitimacy. A political conception is justified

pro tanto “without looking to, or trying to fit, or even knowing what are, the existing

comprehensive doctrines” of the persons over whom it proposes to apply (Rawls 1995:

145). As such, it is freestanding in a very literal sense; it is nothing more than a

descriptive model of a conception of justice that fits the target society. It has yet to be

applied to individual citizens’ self and social conceptions so as to be revealed as

genuinely normative for them. The successful construction of a political conception of

justice at the pro tanto stage offers nothing more than the “hope the reasonable

comprehensive doctrines affirmed by reasonable citizens in society can support it, and

that in fact it will have the capacity to shape [these] doctrines toward itself” (Rawls 1995:

145).7

My account of the pro tanto phase of justification as “descriptive” is important to

the defense of Rawls’s method of avoidance that will follow, so I should pause to

explain. By descriptive, I mean that pro tanto justification is limited to the exercise of

finding a conception of justice that is optimally consistent with the manifest

characteristics of the target public political culture. Consequently, pro tanto justification

starts with no normative presuppositions and makes no independent judgment as to the

moral quality of that public political culture. This is what allows Rawls to say that a

political conception of justice that is justified pro tanto does not present itself as true.

Though Rawls never explicitly refers to the pro tanto phase of justification as descriptive,

there is an abundance of textual support for this reading.

First, one must wonder what else Rawls could mean when he describes pro tanto

justification as generating a “freestanding” conception of justice without “looking to, or

trying to fit, or even knowing what are, the existing comprehensive doctrines” (Rawls

1995: 145). If pro tanto justification is not intended by Rawls to be descriptive, but

rather as itself independently normative, then what would be the source of that normative

weight? Rawls explicitly precludes the target citizens’ comprehensive doctrines as

candidates (at least at the pro tanto phase8) because that would undermine the

conception’s neutrality. You and I who are constructing the political conception at the

pro tanto phase cannot draw on our own comprehensive doctrines to supply normativity

(even if we were not also target citizens), for this too would corrupt the freestanding

nature of the political conception.9 And of course pro tanto justification itself cannot

commend a political conception as objectively normative for citizens, for, once again,

this would deprive the conception of its freestanding status and render it a comprehensive

rather than a political conception.

Second, Rawls states that pro tanto justification orders and balances political

values “so that those values alone give a reasonable answer by public reason to all, or

nearly all, questions concerning constitutional essentials and basic justice” (Rawls 1995,

emphasis added: 142). This may leave the reader with the impression that Rawls

understands reasonableness to provide an external normative constraint on the

construction of a political conception of justice at this first stage of justification, but this

is clearly not what he intends. For Rawls goes on to explain that when we set up the

liberal political conception of justice as fairness, the ideas of the reasonable and of

citizens viewed as free and equal “are always described and expressed by the conceptions

and principles within the political conception itself” (Rawls 1995: 150). In other words,

these ideas are only relied upon in their freestanding form, as they are manifest in the

target public political culture. In addition, we see that Rawls cannot contemplate liberal

ideals as fixed external constraints on political conceptions of justice because he

repeatedly refers to non-liberal political conceptions. According to Rawls, “many

political conceptions are non-liberal, including those of aristocracy and corporate

oligarchy, and of autocracy and dictatorship” (Rawls, “Public Reason Revisited,” 2001:

585). For Rawls, that the idea of persons as free and equal “belongs to a particular

political conception is clear from the contrast with a different political conception in

which the members of society are not viewed as self-authenticating sources of valid

claims” (Rawls, Justice as Fairness, 2001: 23). Indeed Rawls even contemplates the

possibility of “a political conception of justice that allows slavery” and he uses this

possibility to illustrate the point that “conceiving of citizens as free persons…goes with a

particular political conception of justice” (Rawls, Justice as Fairness, 2001: 24). In

short, the political ideas of the reasonable and of persons as free and equal constrain us in

our construction of a political conception of justice for our liberal society at the pro tanto

phase, but only in the way a historical anthropologist might be constrained to account for

slavery if she were to attempt the construction and pro tanto justification of a political

conception of justice for the antebellum South. Such ideas are inescapable descriptive

facts of the target society’s shared history and public political culture evident to any

observer. As such no political conception would fit or be complete unless it accounted

for those ideas.

Finally, there is no need for Rawls to suppose anything more than a descriptive

analysis of the target society at the pro tanto phase of justification for a political

conception of justice. For, as we shall see, on Rawls’s theory, the citizens themselves

provide the requisite moral element of normativity when they either affirm or reject a

proposed political conception in reflective equilibrium.

After pro tanto justification, the next phase of the justificatory process for a

political conception of justice focuses on an individual citizen as a member of civil

society. In what Rawls refers to as “full, individual” justification, the descriptive pro

tanto model is offered up to a citizen who accepts it and “fills out its justification by

embedding it in some way to the citizen’s comprehensive doctrine as either true or

reasonable, depending on what that doctrine allows” (Rawls 1995: 143). For the

justification of the political conception to be “filled out” in this way, the individual

citizen must be prepared to accept it in wide reflective equilibrium. According to Rawls,

wide reflective equilibrium, in the case of an individual citizen, is reached

when that citizen has carefully considered alternative conceptions of

justice and the force of various arguments for them. More specifically, the

citizen has considered the leading conceptions of political justice found in

our philosophical tradition (including views critical of the concept of

justice itself) and has weighed the force of the different philosophical and

other reasons for them. We suppose this citizen’s general convictions,

first principles, and particular judgments are at last in line (Rawls 1995:

141, n. 16).

It is here, through the process of reaching wide reflective equilibrium, that individuals are

forced to reconcile the claims of political justice with the non-political values comprised

by their comprehensive conceptions. According to Rawls, the freestanding political

conception itself “gives no guidance in such questions, since it does not say how

nonpolitical values are to be counted. This guidance belongs to citizens’ comprehensive

doctrines” (Rawls 1995: 143).

Finally, public justification occurs where full individual justification of a political

conception of justice is achieved with respect to all (or most) reasonable members of a

political society. This means “all the reasonable members of political society carry out a

justification of the shared political conception by embedding it in their several reasonable

comprehensive views” (Rawls 1995: 143). Where such social convergence upon a

political conception occurs, what Rawls refers to as an “overlapping consensus of

reasonable comprehensive doctrines” is achieved. With this consensus, citizens take one

another into account, recognizing that, though many will have conflicting comprehensive

moral doctrines, all endorse the same political conception. And, according to Rawls,

“this mutual accounting shapes the moral quality of the public culture of political

society” (Rawls 1995: 143-144). Rawls emphasizes, however, that “the express contents

of these doctrines have no normative role in public justification; citizens do not look into

the content of others’ doctrines, and so remain within the bounds of the political. Rather,

they take into account and give some weight to only the fact—the existence—of the

reasonable overlapping consensus itself” (Rawls 1995: 144).

Concomitant with the idea of an overlapping consensus of reasonable

comprehensive moral, religious and philosophical doctrines upon a political conception

of justice, and the moral quality of mutual accounting which the public recognition of this

consensus engenders, is the idea of stability for the right reasons. If the case can be made

that pro tanto, full individual, and public justification is possible for a given reasonable

political conception of justice, then the conditions placed upon the exercise of coercive

political power by the liberal principle of legitimacy may be met by that conception. As

Rawls puts it, the argument, if successful, would show that we “can reasonably affirm

and appeal to a political conception of justice as citizens’ shared basis of reasons, all the

while supposing that others, no less reasonable than we, may also affirm and recognize

that same basis. Despite the fact of reasonable pluralism, the conditions for democratic

legitimacy are fulfilled” (Rawls 1995: 146).

So ultimately, for Rawls, what justifies a political conception of justice “is not its

being true to an order antecedent to and given to us, but its congruence with our deeper

understanding of ourselves and our aspirations, and our realization that, given our history

and the traditions embedded in our public life, it is the most reasonable doctrine for us”

(Rawls, “Kantian Constructivism,” 2001: 306-307). The aim of political philosophy

becomes the construction of a conception of justice “we can live with.”

4. The Liberal Philosophical Critique: Incoherence of Justice without Truth

I cannot answer every philosophical criticism of Rawls’s pragmatism here.

Instead I focus on Joseph Raz’s challenge (1990) as representative. Though there have

been many other challenges to Rawls’s attempt to avoid truth claims in justifying a

conception of justice,10 I choose Raz’s for my focus because it was among the first and,

due to its seminal status, it has served as a starting point for others that have followed. In

addition, it offers a particularly focused, clear and well-developed argument.

Raz explains that Rawls is perfectly willing to accept the possibility that

comprehensive theories of justice are the bearers of truth values and that at least one is

true. Rawls’s method of avoidance simply maintains that the truth or falsity of a political

conception of justice is irrelevant to the question of its acceptability. As Raz puts it,

Rawls is “willing to contemplate the possibility that there are some who know what the

true theory of justice is, and that it is incompatible with his. Rawls is, in effect, arguing

that such persons should nevertheless support his theory rather than the incompatible true

theory, for his theory is the theory for us.” (Raz 1990: 15, n. 34) Raz finds this approach

unworkable. For, according to Raz, “if fulfilling the practical role assigned it by Rawls

vindicates the theory of justice, then it shows it to be true (assuming ad arguendum, as

Rawls does, that it can be true or false)” (Raz 1990: 16). For Raz, it is not so much that

Rawls’s claim is not morally justified as that it is incoherent: “for in claiming that this is

the theory of justice for us for such-and-such reasons, one is claiming that those reasons

show (or make) this the true theory of justice (if truth applies to theories of justice)” (Raz

1990: 15, n. 34). Thus, Raz argues that there “can be no justice without truth,” and the

method of avoidance must be rejected (Raz 1990: 15, n. 34).11

Another way of putting Raz’s argument against Rawls’s method of avoidance is

that there is nothing but incoherence lying between a theory of social stability on the one

hand (which is not a theory of justice at all), and a comprehensive theory of justice on the

other (which would require renouncing the method of avoidance). But, according to Raz,

Rawls’s idea of a political conception of justice must fall between these two stools. To

understand Rawls as preaching a mere theory of social stability would, as Raz puts it, be

to “regard the politics Rawls advocates as an unprincipled search for consensus at all

costs” (Raz 1990: 12). But Raz identifies two crucial constraints on Rawls’s theory (one

external and one internal) that preclude such an interpretation. First, Rawls limits his

theory’s aim to that of reaching “a consensus that includes all the opposing philosophical

and religious doctrines likely to persist and to gain adherents in a more or less just

constitutional democratic state” (Rawls, “Political not Metaphysical,” 2001, emphasis

added: 390). Hence, according to Raz, Rawls places an external constraint on his theory

by arguing that consensus ought only to be the goal for those societies that are already

just or reasonable. The second way in which Rawls’s theory is precluded from being

understood as a theory of “consensus at any price” comes to light in the ways in which its

goal of an overlapping consensus is distinguished from a mere modus vivendi. As Raz

puts it, a modus vivendi “reflects no principles other than the fact that it is an acceptable

compromise,” whereas Rawls presents his theory as “genuinely a theory of justice” (Raz

1990: 13). As such it expresses “conceptions of person and society, and concepts of right

and fairness, as well as principles of justice with their complement of the virtues…”

(Rawls, “Political not Metaphysical,” 2001, emphasis added: 410). Consequently, it is

not merely among individuals that the conception seeks to gain consensus, but, more

specifically, among the myriad comprehensive moral religious and philosophical

doctrines to which they subscribe. Thus, the goal for Rawls is not merely consensus, but

rather a moral consensus. Thus, Raz concedes that Rawls’s theory is not intended as a

mere theory of social stability because the above-stated external and internal constraints

are intended to allow it to aspire to something more.

But, according to Raz, these two constraints that allow Rawls’s political

conception of justice to aspire to something more than a mere theory of social stability

are also the features that drive it either into the fray of competing comprehensive

doctrines (and therefore force it to renounce the method of avoidance) or alternatively

into incoherence.

Concerning the external constraint of respect for the reasonable, Raz argues that

Rawls’s theory can only be understood as meaningful or motivated if we recognize it as a

valuable goal “of sufficient importance to make [it] and [it] alone the [foundation] of a

theory of justice for our societies” (Raz 1990: 14). In other words, implicit in the

recognition of this external constraint on the content of political conceptions of justice

must be the claim that in order for a theory of justice to be true, it must be reasonable.

Thus, given the nature of the reasonable as an external constraint on the theory, a political

conception of justice must either claim that it is true to the extent that it is the most

reasonable theory for us, or be rendered incoherent.

Raz sees the internal constraint of achieving an overlapping consensus among

comprehensive moral and religious doctrines as problematic as well. As we have seen,

achieving such consensus among these different comprehensive doctrines demands that

the political conception of justice itself remain freestanding or autonomous from those

doctrines. For Raz, a theory of justice is weakly autonomous if it is part of a pluralistic

comprehensive conception of the good—i.e. a theory which “recognizes the existence of

irreducibly many intrinsic goods, virtues, and values.” (Raz 1990: 22) A weakly

autonomous political theory recognizes some independent goods (e.g. distributive justice)

as essentially political. By contrast, a strongly autonomous political theory “is a theory

whose validity or truth does not depend on nonpolitical considerations” (Raz 1990: 22).

Raz explains that Rawls’s political conception of justice is clearly intended to be strongly

autonomous. It must remain a “self-standing political theory, which is not to be justified

by its relations to a wider moral doctrine” (Raz 1990: 3). This is because identification

with any one comprehensive doctrine would preclude consensus among its rivals.

According to Raz, however, there are two reasons why autonomy from

comprehensive moral theory is not possible for Rawls’s political conception of justice.

First, Raz explains that political justification is at least in part holistic. The justification

of both moral and political values depends “in part on the way they can be integrated into

a comprehensive view of human well-being” (Raz 1990: 23). Second, the practical

implications of any value depend on the ways in which they may conflict with other

values. So since “a strongly autonomous political theory [like the one commended by

Rawls] prevents us from considering its political values in the comprehensive context of

a complete moral theory, it cannot yield practical conclusions. It can neither assure us

that conflicts do not arise nor adjudicate when they do arise” (Raz 1990: 23). Thus, given

the holistic nature of practical reasoning, the autonomy from comprehensive moral

theories that is presupposed by Rawls’s method of avoidance is simply not possible.

Consequently, according to Raz, Rawls is forced to either articulate his political

conception of justice as part of a broader comprehensive doctrine (and therefore renounce

the method of avoidance) or leave it impotent to justify and adjudicate the competing

claims of citizens, the primary purpose of a theory of justice.

5. Rational Space for Justice without Truth

We return now to Rawls’s three phases of justification for a political conception

of justice as outlined above and consider whether Rawls must accept these dilemmas as

proposed by Raz. I begin with Raz’s claim that Rawls relies on the reasonable as an

external constraint on his theory. Recall that for Rawls the initial construction and

justification of a political conception of justice begins at the pro tanto phase. Here we

can think of a given society is observed from the third-person standpoint. Cultural

paradigms of justice and injustice are collected side-by-side with observations of the

political institutions of the current regime and the public traditions of their interpretation.

General organizing ideas are teased out and constructed from these observations. In a

liberal society, we can expect that the reasonable will be one such idea. These general

organizing ideas are then used to construct a model for choice to which practical

rationality may be applied to generate principles of justice we hope individuals in that

society will accept on an ad hominem basis in the later individual and public phases of

justification. But at least initially (still at the pro tanto phase of justification) the exercise

is purely descriptive. The test for adequacy is nothing more than that of fit and

completeness. So understood, there is nothing to pro tanto justification that betrays an

external normative constraint of respect for the reasonable. It is true that Rawls only

applies the method to Western liberal democracies, where a commitment to the

reasonable will be manifest in the public political traditions, but there is no formal

constraint to the method itself that would make it inapplicable to non-liberal (and non-

reasonable) settings. Indeed, as noted above, Rawls clearly contemplates possible non-

liberal political conceptions of justice, making it clear that pro tanto justification of such

conceptions is possible.

So Raz misunderstands Rawls when he argues that while it would appear that the

“goal of [Rawls’s brand of] political philosophy is purely practical—while it is not

concerned to establish any evaluative truths—it accepts some such truths as the

presuppositions which make its theory intelligible” (Raz 1990: 9). It is not Rawls’s

method that presupposes a respect for the reasonable, but rather the public political

culture of the Western liberal democracies upon which Rawls happens to focus it. In

other words, for a political conception of justice to fit such a society at the pro tanto

phase, it must be constructed to reflect a commitment to the reasonable—not the other

way around. Moreover, we can now see the mistake in Raz’s argument that “in claiming

that this is the theory of justice for us for such-and-such reasons, [Rawls] is claiming that

those reasons show (or make) this the true theory of justice (if truth applies to theories of

justice)” (Raz 1990: 15, n. 34). For when a descriptive political conception that is

justified pro tanto is offered to citizens at the ad hominem individual and public phases of

justification, that conception does not present itself as true or as the theory of justice for

them. It is offered as freestanding, with no more than the hope (given the pervasiveness

in the public political culture of the political ideas that shaped the conception) that

citizens will draw this conclusion (e.g., that it is true, reasonable, or the right theory for

us) for themselves from within their own comprehensive doctrines, without the need for

the political conception to go that far itself. Raz simply confuses the separate

justificatory roles played by the pro tanto and later ad hominem phases of justification.

Given its freestanding nature, a political conception of justice has no resources to

recommend itself as true at the pro tanto phase of justification. At the later ad hominem

phases of justification, the political conception may be endorsed as true or reasonable or

as the right theory for us, but each citizen must bring this endorsement to the theory

herself, on an individual basis, from within her own comprehensive moral, religious or

philosophical conception. For Rawls, “the political conception gives no guidance in such

questions” (Rawls 1995: 143). This is the key to Rawls’s method of avoidance.12

In sum, Raz is mistaken to interpret Rawls’s respect for the reasonable as an

external constraint on his theory. It is not a presupposition or necessary condition of the

theory’s successful application. It is rather a feature the method finds already present in

the target society, at least where that society is liberal. Once present, the reasonable helps

to determine the outcome of pro tanto justification, but it does so only as a matter of fit

and completeness, not as a matter of conforming to some external moral order.

Otherwise the conception would not be freestanding. Once presented at the ad hominem

phases of justification, citizens themselves may endorse the political conception as true

because it is reasonable, but this is due to their own inescapable commitment to the

reasonable from within their myriad comprehensive doctrines. Rawls’s method,

however, betrays no such commitments itself and can offer no guidance on this question.

But what of Raz’s claim that Rawls’s idea of an overlapping consensus on an

autonomous political conception of justice is incoherent due to the holistic nature of

practical reasoning? As we saw above, Raz defines a strongly autonomous theory of

justice as one “whose validity or truth does not depend on nonpolitical considerations”

(Raz 1990: 22). This is, of course, trivially true of Rawls’s freestanding political

conception of justice insofar as it is offered as neither true nor valid. It is simply a

descriptive construction the principles of which may or may not be accepted as normative

from the standpoint of individual citizens and their comprehensive doctrines. The truth,

validity, or reasonableness of a political conception only comes into play from the

standpoint of individual citizens once it is justified pro tanto and offered up to the target

citizens at the ad hominem stages of individual and public justification. But at these latter

stages citizens are of course free to fill in the justification for the conception however

they like from the standpoints of their comprehensive doctrines: They may regard it as

true, valid or reasonable based on comprehensive moral reasons. If they do regard it as

true or reasonable at this stage, however, the very same comprehensive moral reasons

that drive them to this conclusion will weigh in favor of its command that public

justification for it be maintained solely through public reason (i.e., in terms of a

freestanding political conception of justice).

Recall the two objections that Raz considered to be decisive against the strong

autonomy of Rawls’s political conception of justice. First, the justification of moral and

political values depends on the ways in which they can be integrated into a

comprehensive conception of human well-being. And, second, insofar as the practical

implications of any value depend on the ways in which they may conflict with other

values, “a strongly autonomous political theory prevents us from considering its political

values in the comprehensive context of a complete moral theory, it cannot yield practical

conclusions” (Raz 1990: 23). But we can see, again, how regarding these concerns as

genuine criticisms of Rawls must rely on a misinterpretation of the latter’s method of

justification. With regard to the first objection, Rawls is perfectly willing to admit that

justification of moral and political values may appeal crucially to a comprehensive

conception of human well being, and citizens are free to fill in the justification of a

political conception of justice with just such a comprehensive view—indeed Rawls fully

expects them to do so. What citizens cannot do is appeal to this comprehensive doctrine

in public political discourse (unless they are also prepared to offer a justification in terms

of the shared political conception in due course13), and Rawls expects their

comprehensive views, to the extent they are reasonable, to impose this constraint on their

own. Raz’s second criticism misses the mark for the same reason. The political

conception of justice, as Rawls understands it, does not prevent persons from considering

political values in the comprehensive context of a complete moral theory; indeed he

encourages people to do so. Rawls simply expects, once again, that, insofar as the

complete moral theory against which the person is weighing the values is reasonable, it

will itself impose the restraint that the non-political values not outweigh their political

counterparts all or most of the time. Raz’s response here is that that insofar as Rawls

means that general compliance with the principles of justice is necessary to achieve the

goal of fair social cooperation, it does not follow that absolute compliance is necessary;

hence particular conflicts will have to be evaluated on a case-by-case basis. But, again,

this is a consequence with which Rawls is entirely comfortable. In his example of the

Quaker, Rawls explains why he expects political values to outweigh non-political values

in most cases while at the same time leaving room for reasonable civil disobedience and

conscientious refusal:

Quakers, being pacifists, refuse to engage in war, yet they also support a

constitutional regime and accept the legitimacy of majority or other

plurality rule. While they refuse to serve in a war that a democratic people

may reasonably decide to wage, they will still affirm democratic

institutions and the basic values they represent. They do not think that the

possibility of a peoples’ voting to go to war is sufficient reason for

opposing democratic government….This illustrates how political values

can be overriding in upholding the constitutional system itself, even if

particular reasonable statutes and decisions may be rejected, and as

necessary protested by civil disobedience or conscientious refusal (Rawls

1995: 148-149).

Thus, it would seem that the problem Raz envisions for the hope of an overlapping

consensus as an internal constraint on Rawls’s theory (serving to distinguish it from a

mere theory of social stability) stems from a failure to recognize the way in which a

political conception of justice which is justified pro tanto is autonomous: it is only

autonomous from comprehensive moral and religious doctrines in the sense that it does

not recommend itself as true or valid on its own, but rather offers itself up to believers of

comprehensive theories to take that final step themselves. Where these believers are

committed to reasonable comprehensive doctrines, this reasonableness informs how they

will weigh any apparent conflicts between their comprehensive doctrines and the political

conception of justice. They must weigh the importance of the aspects of their

comprehensive doctrines not reflected in (or in conflict with) the political conception

against the important goals (including respect for the liberal principle of legitimacy)

advanced by adherence to the political conception. So understood, again, there is no

obvious inconsistency or incoherence.

But isn’t there still a lingering concern here? As Raz puts it, Rawls is “willing to

contemplate the possibility that there are some who know what the true theory of justice

is, and that it is incompatible with his. He is, in effect, arguing that such persons should

nevertheless support his theory rather than the incompatible true theory, for his is the

theory for us” (Raz 1990, emphasis added: 15, n. 34). How can this be? It may appear

damning to a theory of justice that it require those who know an alternative theory to be

true to nevertheless suppress this knowledge in public political discourse simply because

it cannot be expressed in terms others can accept.

To begin, it should come as no surprise that there might be contexts in which

ensuring a fair process for achieving an important social goal may require the exclusion

of some truths actually known by the participants. Rawls offers the exclusionary rules of

evidence enforced by the courts as an example. “Not only is hearsay evidence excluded

but also evidence gained by improper searches and seizures, or by the abuse of

defendants upon arrest and failing to inform them of their rights” (Rawls 1993: 218).

Such exclusions are typically enforced even where the judge is certain the excluded

evidence is relevant and reliable, all to ensure the right to a fair trial. Rawls explains that,

like the citizen who limits public political discourse on constitutional essentials to the

contents of a political conception of justice (rather than her comprehensive doctrine),

such exclusionary rules “recognize a duty not to decide in view of the whole truth so as to

honor a right or duty, or to advance an ideal good, or both” (Rawls 1993: 219).

Sticking with the judicial theme, and perhaps more to the point, consider what we

already ask and expect of our judges in reaching and justifying their decisions,

particularly when they are deciding on issues of constitutional import. Though it is

inevitable that judges will draw on aspects of their individual comprehensive worldviews

in reaching their decisions, we expect that they will check the influence of those beliefs

where they are inconsistent with legal precedent and established public policy. We

demand this even if the judge’s conscience would ceteris paribus dictate a different

result. And in all cases we insist that judges refrain from expressly justifying their

rulings on their own broader moral or religious beliefs, demanding instead that they

express their decisions in terms of shared public reasons.14 Moreover, it is not just that

we expect judges to constrain their express justifications and decisions in this way, but

we expect that they will recognize that it is right and just that they do so. We expect

judges to recognize that in some cases justice and fairness may require that society be

denied the full benefit of the truth as they see it.

In sum, Raz seems to be expressing the concern that Rawls’s method of avoidance

demands the impossible of a citizen by requiring that she affirm a political conception of

justice even if it is not compatible15 with a broader comprehensive doctrine she knows to

be true. But, as the examples above show, we already place a similar constraint on our

judicial proceedings and our judges in order to advance larger goals of justice and

fairness. What is so bizarre about the idea that justice (specifically the liberal principle of

legitimacy) may require this same restraint on all citizens, at least where weighty

concerns regarding constitutional essentials are at issue in a society marked by the

burdens of judgment and reasonable pluralism? It may sometimes be difficult for us as

citizens to limit our public justifications to those that can be articulated in terms of a

political conception of justices. But it is no more than we demand of our judges, and it is

certainly not an impossible or incoherent demand.

Thus, ultimately, it would appear that Rawls has sufficient resources available to

escape the corner in which critics such as Raz attempt to place his theory. Though

Rawls’s method may appear counterintuitive at first blush, any reservations resulting

from the unorthodoxy of the approach are more than outweighed by the payoff: a

coherent solution to the post-Enlightenment liberal paradox.

6. Responding to the Non-Liberal Critique: Either Dogmatic or Naïve

Rawls’s pragmatism has also been challenged from outside the liberal

philosophical tradition. With the weakening liberalism’s claim to universality and the

reemergence of religion as a powerful force in modern politics, religious leaders, jurists,

and social critics who embrace a narrative of post-secularity have challenged the ideal of

liberal neutrality as itself just another dogmatism that deserves no privileged status.

Moreover, such critics argue, even if neutrality in public political discourse were an ideal

worth pursuing, Rawls’s idea of public reason, which presupposes sufficient convergence

on ideas and meanings in the public political culture to support a freestanding political

conception of justice, should be dismissed as fantasy in today’s increasingly more

pluralistic democracies.

Paul Campos describes Rawls’s method of avoidance as “secular

fundamentalism” (Campos 1996: 200). For Campos, the secular fundamentalist “asserts

that the supreme political value is to produce a political system that accepts liberal

principles of political morality as embodiments of the supreme political value” (Campos

1996: 200). The exclusion of comprehensive doctrines from the public political forum is

justified because the ideal of reciprocity (embodied in the liberal principle of legitimacy)

is crucial to liberal political morality. According to Campos, this variety of liberalism is

properly understood as fundamentalist in the sense that it “denies the possible legitimacy

of deep political conflict in what it considers a just social order” (Campos 1996: 200). Its

demand that discourse in the public political forum be limited to “the authoritative (and

authoritarian) voice of public reason” leaves Rawls’s liberalism resembling “the very

dogmatic systems it once rebelled against” (Campos 1996: 200). In sum, despite its lip-

service to neutrality and toleration, Rawls’s political liberalism “has within it the

potential to become every bit as monistic, compulsory, and intolerant of any significant

deviation from social verities as the traditional modes of belief it derided and displaced”

(Campos 1996: 200).

Campos’s critique of Rawls is misplaced, and explaining why allows us to once

again highlight the crucial difference between Rawls’s pragmatism and the

foundationalism of the Enlightenment liberal. While it is true that Enlightenment

liberalism must boldly (perhaps even dogmatically) “assert” the “liberal principles of

political morality as embodiments of the supreme political value,” Rawls pragmatism

avoids making any such assertion. Instead, for Rawls the commitment to reasonableness

and the liberal principle of legitimacy is first identified at the descriptive, pro tanto phase

of justification. As such, it is a freestanding commitment that (for better or worse) is

already reflected in the public political culture of Western democracies; it enjoys a

default status in the public forum that would be apparent to any third-party observer of

the culture. This is a descriptive fact about Western democracies; it is not a dogma.

Nevertheless, the default status enjoyed by such freestanding ideas qualifies them as non-

controversial starting points for political discourse concerning the constitutional

essentials of a state. Of course such freestanding ideas only become normative for

citizens once they are accepted in reflective equilibrium at the ad hominem phases of

justification. Campos and other critics may genuinely reject the liberal principle of

legitimacy at the ad hominem phase, but, given the pervasiveness of the commitment to

neutrality in Western public political culture (and its close link to other widely shared

political values), their fellow citizens who acknowledge this principle may reasonably

place the burden on them to explain their challenge to that default position. In offering

this explanation, Campos and others should be prepared to explain why the harms the

liberal principle of legitimacy guards against (e.g., the alienation and marginalization of

citizens) are outweighed by the strains of the commitment. Or, alternatively, they should

be prepared to show the principle must be rejected for some other reason, perhaps

because it is unworkable as a practical matter.

Nicholas Wolterstorff rejects Rawls’s strategy of building an overlapping

consensus on a political conception of justice as hopelessly naïve. According to

Wolterstorff, no matter what principles of justice are generated by Rawls’s three phases

of justification, “the reasonable thing for [one] to expect is not that all reasonable people

who use their common human reason will agree with [the] results but that not all

reasonable people will agree” (Wolterstorff 2009: 174). In fact, Wolterstorff argues,

there is “no more hope that all those among us who are reasonable and rational will

arrive, in the way Rawls recommends, at consensus on principles of justice, than that we

will all, in the foreseeable future, agree on some comprehensive philosophical or

religious doctrine” (Wolterstorff 2009: 174).

This is not, however, a fair criticism of Rawls. For Rawls’s method does not

depend for its success on all citizens of a liberal society agreeing on one political

conception of justice (though this may be the ideal), only that they agree on a family of

reasonable political conceptions (Rawls, “Public Reason Revisited,” 2001: 574; Rawls

1995: 147). There are certainly enough freestanding moral ideas available in the public

political cultures of Western liberal democracies to support a family of political

conceptions of justice that are mutually recognized as reasonable, even if no one member

of this family is universally recognized in all its details. So long as discourse in the

public political forum is limited to positions that are ultimately supported by at least one

member of this family of reasonable political conceptions of justice (as opposed to

comprehensive moral or religious doctrines), the discourse continues without drawing on

conversation-stopping first principles. Moreover, because the political conceptions do

not trade on the truth of any one comprehensive moral or religious doctrine, where one

wins out in the democratic process (as inevitably one must), there is not the same risk of

humiliation or alienation for proponents of the losing conceptions. In short, Rawls’s

method succeeds where others fail precisely because it makes ending up on the losing end

of a dispute over constitutional essentials more palatable. For where citizens and officials

make the effort to justify their votes in terms of freestanding ideas latent in the public

political culture, even discourse that ends in a standoff is pervaded with mutual respect.

Wolterstorff also objects to Rawls’s requirement that discourse in the public

political forum be limited to public reason as hopelessly and unfairly restrictive. As

Wolterstorff puts it, “my own views on the rights of the poor have been formed by

reflecting on the scriptures which I accept as canonical. I am now told that if I want to

present and debate those views in the political arena,…I must base them on the consensus

populi, rationally analyzed” (Wolterstorff 2009: 174). The problem with this requirement

is that, according to Wolterstorff, most of his fellow citizens do not recognize the poor as

having the rights he thinks they have. Indeed he argues that should “someone extract

principles of justice from the consensus populi which entail that the poor do have such

rights,…I would, on the basis of that entailment, conclude that her analysis was a mis-

analysis” (Wolterstorff 2009: 174). Wolterstorff concludes that he cannot appeal to

freestanding ideas latent within the public political culture when the very challenge

before him is to try to change that culture.

First, as we have seen, it is incorrect to characterize Rawls’s political conception

of justice as distilled from popular consensus. Recall that for Rawls a political

conception of justice is justified pro tanto without even knowing what moral or religious

views are actually held by citizens of the relevant society. Moreover, Rawls clearly

intends the ad hominem phases of justification in which citizens strive toward reflective

equilibrium with respect to a reasonable political conception of justice to be conducive of

reform. Citizens are expected to identify new commitments to their fellow citizens they

did not recognize before. And as I have argued elsewhere, ad hominem appeals on the

basis of shared ideas latent within the public political culture can be a powerful and

effective tool for change (Anderson 2003: 593-595). By contrast, as we have seen, direct

appeal to controversial conversation-stopping foundational sources such as scripture may

stifle dialogue and undermine reform.

Second, though Wolterstorff may have arrived at the conclusion that the poor

have rights by reflecting on scripture, I am suspicious of the claim that he would be

powerless to defend this position to others in the public political forum without appeal to

that foundational source. As John Dewey explained, the “condition of revelation is that it

reveal” (Dewey 1971: 4). Had “Jesus Christ made an absolute, detailed and explicit

statement upon all the facts of life, that statement would not have had meaning—it would

not have been revelation—until men began to realize in their own action the truth

declared—until they themselves began to live it” (Dewey 1971: 6). In other words,

imperatives drawn from scripture cannot be understood as revealed unless and until they

are found in practice to be right and good independent of any reference to scripture.

Once it is admitted that his commitment to the rights of the poor can be supported by

reasons other than direct reference to God’s Will, then it must also be admitted that the

public political culture of a Western liberal democracy will offer ample comprehensive

doctrine-neutral resources to defend this position as part of one of a family of reasonable

political conceptions of justice.16

Third, we must remember that Rawls’s demand that participants in the public

political forum refrain from appeal to the truth of comprehensive doctrines is limited to

discourse concerning constitutional essentials, and even with respect to constitutional

essentials, the restriction is subject to a proviso: Appeals to comprehensive moral,

philosophical, or religious doctrines may be made, provided that “in due course” they are

accompanied by “properly public reasons” (Rawls, “Public Reason Revisited,” 2001:

Finally, whatever one thinks of my responses to Campos and Wolterstorff above,

it appears their proposed alternative response to the problem of justification and

legitimation in modern pluralistic societies would be the open competition model. I have

already suggested (supra, § 2) this approach raises serious, and I think insurmountable,

problems of its own.

7. Conclusion

Thomas Jefferson wrote, “it does me no injury for my neighbor to say that there

are twenty Gods or no God” (Jefferson 1984: 285). Richard Rorty pointed out that many

Enlightenment intellectuals would have gone further and argued that to the extent such

religious beliefs are inessential to political cohesion, they should simply be dismissed as

“mumbo jumbo” and replaced by an explicitly secular political faith (such as was

attempted by Marxist states in the twentieth century). Rorty explains why Jefferson

refused to go this far:

He thought it enough to privatize religion for individual perfection.

Citizens of a Jeffersonian democracy can be as religious or irreligious as

they please so long as they are not “fanatical.” That is, they must abandon

or modify opinions…if these opinions entail public actions that cannot be

justified to most of their fellow citizens (Rorty 1991: 175).

In this respect, Rawls, in offering his recommendations for liberal constitutional

democracies, would follow Jefferson. Rawls’s story about justice for a well-ordered

society relies on freestanding ideas because he is convinced that political justification and

legitimation requires no more. We could go so far as to justify our basic constitutional

order by either forcing one controversial comprehensive view on others, or by opening

the political forum to all competing comprehensive doctrines. But Rawls, following

Jefferson, asks why we would want to do so (thereby fomenting discord, alienating those

with minority worldviews, and stifling political discourse) when our shared reason does

not require it of us? Rawls’s pragmatism consists in his insistence that truth (secular or

religious), if not irrelevant, is at least unnecessary to justice. I have argued embracing

this pragmatism offers liberalism its best hope for solving the post-Enlightenment

paradox and enduring in the twenty-first century and beyond.

REFERENCES

Anderson, J. (2003). Patriotic Liberalism. Law and Philosophy 22, 577-595.

Baier, K. (1989). Justice and the Aim of Political Philosophy. Ethics 99, 771-790.

Cabulea May, S. (2009). Religious Democracy and the Liberal Principle of Legitimacy.

Philosophy & Public Affairs 37, 136-171.

Campos, P. (1996). Secular Fundamentalism. In P. Campos, P. Schlag, and S. Smith,

Against the Law. Durham, NC: Duke University Press Books (191-202).

Carter, S. (1993). The Culture of Disbelief: How American Law and Politics Trivialize

Religious Devotion. New York, NY: Basic Books.

Cohen, J. (2009). Truth and Public Reason. Philosophy & Public Affairs 37, 3-42.

Dewey, J. (1971). Christianity and Democracy. In Jo Boyston (ed.), Early Works

Volume 4 1882-1898. Carbondale, IL: Southern Illinois University Press (3-10).

Estlund, D. (1998). The Insularity of the Reasonable: Why Political Liberalism Must

Admit the Truth. Ethics 108, 252-275.

Doppelt, G. (2009). The Place of Self-Respect in a Theory of Justice. Inquiry 52, 127-

Hampton, J. (1989). Should Political Philosophy Be Done Without Metaphysics? Ethics

99, 791-814.

Habermas, J. (1995). Reconciliation through the Public Use of Reason on John Rawls’s

Political Liberalism. The Journal of Philosophy 92, 109-131.

Jefferson, T. (1984). Notes on the State of Virginia. In Thomas Jefferson Writings. New

York, NY: The Library of America (123-325).

Kraus, J. (1999). Political Liberalism and Truth. Legal Theory 5, 43-73.

Pogge, T. (1989). Realizing Rawls. Ithica, NY: Cornell University Press.

Quinn, P. (2009). Political Liberalisms and Their Exclusions of the Religious. Religion

and Contemporary Liberalism. Paul J. Weithman (ed.). South Bend, IN: Notre Dame.

Rawls, J. (1993). Political Liberalism. New York, NY: Columbia University Press.

Rawls, J. (1995). Political Liberalism: Reply to Habermas. The Journal of Philosophy

92, 131-180.

Rawls, J. (2001). Justice as Fairness: Political not Metaphysical. In Samuel Freeman

(ed.), Collected Papers. Cambridge, MA: Harvard (pp. 388-414).

Rawls, J. (2001). Kantian Constructivism in Moral Theory. In Samuel Freeman (ed.),

Collected Papers. Cambridge, MA: Harvard (303-358).

Rawls, J. (2001). The Idea of Public Reason Revisited. In Samuel Freeman (ed.),

Collected Papers. Cambridge, MA: Harvard (573-615).

Rawls, J. (2001). Justice as Fairness: A Restatement. Erin Kelly (ed.). Cambridge, MA:

Harvard University Press.

Raz, J. (1990). Facing Diversity: The Case of Epistemic Abstinence. Philosophy &

Public Affairs 19, 3-46.

Rorty, R. (1991). The Priority of Democracy to Philosophy. Objectivity, Relativism, and

Truth. Cambridge, England: Cambridge (175-196).

Rorty, R. (1998). Achieving Our Country: Leftist Thought in Twentieth-Century

America. Cambridge, MA: Harvard University Press.

Rorty, R. (1999). Religion as Conversation Stopper. Philosophy and Social Hope.

London: Penguin (168-174).

Rorty, R. (2003). Religion in the Public Square. Journal of Religious Ethics 31, 141-

Scheffler, S. (1994). The Appeal of Political Liberalism. Ethics 105, 4-22.

Wolterstorff, N. (2009). Why We Should Reject What Liberalism Tells Us about

Speaking and Acting for Religious Reasons. Religion and Contemporary Liberalism.

Paul J. Weithman (ed.). South Bend, IN: Notre Dame.

1 Of course we must admit the possibility that unrestricted discourse could independently

reach the conclusion that discourse should be restricted. If that were the case, however,

the restriction itself would only be the result of a political compromise and (for reasons

stated below) would be unlikely to endure.

2 For example, comprehensive doctrines will usually have provisions for treating non-

believers. Some doctrines demand toleration; others do not.

3 The following discussion of the problem of assurance follows Thomas Pogge (Pogge

1989; see also Anderson 2003: 581-583).

4 Rawls defines the liberal principle of legitimacy as follows: the “exercise of political

power is proper and hence justifiable only when it is exercised in accordance with a

constitution the essentials of which all citizens may reasonably be expected to endorse in

the light of principles and ideals acceptable to them as reasonable and rational” (Rawls

1993: 217).

5 For Rawls the burdens of judgment are the source of rational disagreement between

reasonable persons. He lists several such burdens (Rawls 1993: 56-67): (a) The

evidence for a claim may be conflicting and complex and therefore difficult to assess.

(b) Even where there is agreement over what considerations are relevant; there may

be disagreement over the proper weight of competing claims. (c) To some extent all

concepts are vague and subject to hard cases which admit of more than one

reasonable interpretation. (d) We must assess evidence based on our own experiences

and those experiences will inevitably differ from person to person. And (e) a situation

may involve competing moral claims that are different in kind, making an overall

assessment difficult.

6 Rawls offers some examples of comprehensive-doctrine-neutral values found in the

United States Constitution: “a more perfect union, justice, domestic tranquility, the

common defense, the general welfare, and the blessings of liberty for ourselves and our

posterity.” Rawls explains that under these express political values, there are others:

“under justice we also have equal basic liberties, equality of opportunity, ideals

concerning the distribution of income taxation, and much else” (Rawls, “Public Reason

Revisited,” 2001: 584).

7 Samuel Scheffler (1994: 12) offers a helpful account of what Rawls appears to have

in mind when he talks of a political conception of justice shaping comprehensive

doctrines toward itself.

8 As we shall see, at the later phases of justification the hope is that the political

conception that is justified pro tanto will be endorsed by individual citizens from within

their comprehensive doctrines. But here the individual citizens supply their own reasons

for endorsing the political conception as normative for them. This is entirely consistent

with the claim that pro tanto justification does not itself endorse a political conception as

normative or true.

9 Rawls often refers to three points of view in the construction of justice as fairness: “the

point of view of the parties in the original position, the point of view of citizens in a well-

ordered society; and the point of view of you and me who are setting up justice as

fairness as a political conception…” (Rawls, Justice as Fairness, 2001: 45, n. 8).

10 For other important criticisms of Rawls’s pragmatism, see, e.g., Baier (1989),

Hampton (1989), Habermas (1995:110), Estlund (1998), Kraus (1999), Cohen (2009).

Though I cannot engage each of these different challenges directly in this space, I

believe the arguments offered here can be tailored to address many of them (see, e.g.,

note 12 infra).

11 In fairness to Raz, I must point out that this criticism of Rawls’s method of avoidance

was prior in time to, and therefore did not have the benefit of, a number of Rawls’s later

works, including Political Liberalism. Rawls developed and clarified a number of the

ideas Raz criticizes in these later works.

12 Jodi Kraus makes a similar argument against Rawls’s theory and it fails for the same

reasons. Kraus claims that Rawls’s theory must claim its own truth because it “cannot

concede even the possibility of the truth of a comprehensive view that insists on applying

its own substantive moral principles wholesale in the political domain of a society

irrespective of the fundamental ideas in that society’s public political culture.” (Kraus,

1999: 58) This claim makes sense as a claim about some individual citizens in Western

liberal democracies, but it makes no sense as a claim about Rawls’s political liberalism.

As Kraus himself points out, Rawls’s “political constructivism . . . is designed not to

ground political justification in a modest metaphysics, but to obviate the need to ground

political justification in any metaphysics at all.” (Kraus, 1999: 53) Political liberalism,

which is just the application of Rawls’s political constructivism to Western liberal

societies, “merely takes certain of our fundamental values as given and generates from

them a conception of justice maximally consistent with those values” (Kraus 1999: 54).

Consequently, political liberalism is freestanding and does not recommend itself as true

or valid on its own; instead it offers itself up to believers of comprehensive theories so

that they may take that final step themselves—or not. The only challenge political

liberalism makes to proponents of foundationalist conceptions of justice is for them to

explain why the method of avoidance is not enough—either because it fails to provide a

complete conception of justice or because it is ultimately incoherent. So while it may be

true that individual citizens of Western liberal societies (as reasonable) may reject as

false any comprehensive views that do not comply with the liberal principle of

legitimacy, it is simply a category mistake to make this claim of political liberalism itself.

13 According to Rawls, the demands of public reason on players in the public political

forum are subject to a proviso: Appeals to comprehensive moral, philosophical or

religious doctrines may be made, provided that “in due course” they are accompanied by

“properly public reasons to support the principles and policies [the] comprehensive

doctrine is said to support” (Rawls, “Public Reason Revisited,” 2001: 574-575).

14 Indeed Rawls refers to the supreme court of a liberal constitutional democracy as the

“institutional exemplar” of a political conception of justice and its public reason. For

Rawls, the public reason of a freestanding political conception of justice “is the sole

reason the court exercises” (Rawls 1993: 235). Rawls explains that while citizens and

legislators “may properly vote their more comprehensive views when constitutional

essentials and basic justice are not at stake,” supreme court justices should “have no other

reason and no other values than the political. Beyond that they are to go by what they

think the constitutional cases, practices, and traditions, and constitutionally significant

historical texts require” (Rawls 1993: p. 235-236).

15 Raz does not articulate the way in which this purported “true” comprehensive doctrine

is incompatible with the political conception. Here I presume that it is not incompatible

because unreasonable. And insofar as it is reasonable, we may also presume that it

recognizes the burdens of judgment and the liberal principle of legitimacy.

16 Indeed, Rorty’s book, Achieving Our Country: Leftist Thought in Twentieth-Century

America, (1998) offers just such a defense of egalitarian policies based principally on

freestanding ideas from American history and public political culture.

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