Trading Truth for Legitimacy in the Liberal State: Defending John Rawls's Pragmatism, 65 Studies in...
Transcript of 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
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.
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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20
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.
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21
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.
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
22
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
23
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
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24
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
25
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
26
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
27
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).
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28
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.
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29
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
30
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
31
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
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32
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
33
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
34
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.
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35
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
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36
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:
584).
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
37
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.
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
38
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Against the Law. Durham, NC: Duke University Press Books (191-202).
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Pogge, T. (1989). Realizing Rawls. Ithica, NY: Cornell University Press.
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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.
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
41
(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.
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
42
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,
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
43
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
TRADING TRUTH FOR LEGITIMACY IN THE LIBERAL STATE
44
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.