RECIPROCITY AND REASONABLE DISAGREEMENT: FROM ...

Philosophical Studies (2006) DOI 10.1007/s11098-005-2216-6

Ó Springer 2006

DAVID A. REIDY

RECIPROCITY AND REASONABLE DISAGREEMENT: FROM LIBERAL TO DEMOCRATIC LEGITIMACY

ABSTRACT. At the center of Rawls’s work post-1980 is the question of how legitimate coercive state action is possible in a liberal democracy under conditions of reasonable disagreement. And at the heart of Rawls’s answer to this question is his liberal principle of legitimacy. In this paper I argue that once we attend carefully to the depth and range of reasonable disagreement, Rawls’s liberal principle of legitimacy turns out to be either wildly utopian or simply toothless, depending on how one reads the ideal of reciprocity it is meant to embody. To remedy this defect in Rawls’s theory, I undertake to develop the outlines of a democratic conception of legitimacy, drawing first on Rawls’s generic conception of legitimacy in The Law of Peoples and second on a revised understanding of reciprocity between free and equal citizens. On this revised understanding, what free and equal citizens owe one another is not reciprocity in judgment, but reciprocity of interests.

1. INTRODUCTION

In A Theory of Justice (TJ) Rawls theorizes justice as ‘‘the first virtue of social institutions.’’1 And while he undertakes in that work to assess whether his proposed theory of justice might prove stable in the right way over time once institutionally embodied, he never undertakes to assess David A. Reidy, J.D. (Indiana University-Bloomington), Ph.D. (Philosophy, University of Kansas) is Assistant Professor of Philosophy at the University of Tennessee. He works in political philosophy and philosophy of law. He has published essays in journals such as Political Theory, Journal of Social Philosophy, Res Publica, Southern Journal of Philosophy, Public Affairs Quarterly, Polis, Journal of Value Inquiry, Kantian Review, Economics and Philosophy, Legal Studies Forum, as well as in various anthologies. He is the co-editor (with Mortimer Sellers) of Universal Human Rights: Moral Order in a Divided World (Rowman and Littlefield, 2005) and (with Rex Martin) of A Realistic Utopia: Essays on Rawls’s ‘The Law of Peoples’ (Blackwell, forthcoming 2005).

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whether in a society committed to his theory of justice coercive political authority might be legitimately deployed in the name of justice. This latter inquiry is at the heart of Rawls’s work post-1980, culminating in Political Liberalism (PL). It is pushed center-stage, on Rawls’s own account, by the ‘‘fact of reasonable pluralism.’’2 In his post-1980 work, Rawls aims to show that coercive political authority may be legitimately deployed in the name of justice even under conditions of reasonable pluralism. Rawls’s liberal principle of legitimacy expresses the conditions that must be met for it to be so deployed. What I want to argue here is that the fact of reasonable pluralism, the very fact that led Rawls to theorize in close detail the legitimacy of coercive political authority within a liberal state, undermines the plausibility of his liberal principle of legitimacy, the principle meant to govern the legitimacy of coercive political authority in a liberal state. I begin with a few words about Rawls’s liberal principle of legitimacy and its relationship to the moral ideal of reciprocity which it embodies. I next present three special areas of deep, intractable and reasonable disagreement within liberal polities. These areas of reasonable disagreement are special because the liberal principle of legitimacy depends on their resting beyond the boundaries of reasonable disagreement. Together, they provide the basis for an initial case against the liberal principle of legitimacy on the grounds that it is wildly utopian. Of course, if the liberal principle of legitimacy is wildly utopian, then much, perhaps most, coercive state action in liberal polities will be illegitimate on Rawls’s own view, both now and into the future. Since that is not an attractive conclusion to reach for those with generically Rawlsian sympathies, I turn next to a potential defense of Rawls’s position. The discussion here centers on an ambiguity in Rawls’s understanding of the ideal of reciprocity, and accordingly his liberal principle of legitimacy. The defense of Rawls’s position I examine maintains that only if one adopts a particularly strong reading of reciprocity, and thus the liberal principle of

RECIPROCITY AND REASONABLE DISAGREEMENT

legitimacy, does the latter turn out to be vulnerable to the objection that it is wildly utopian, presupposing reasoned consensus where there is, and likely will always be, only reasonable disagreement. On a weak reading of reciprocity, Rawls’s view is not similarly vulnerable. I reject this line of defense because there are good exegetical and philosophical reasons for either attributing the strong reading to Rawls or at least rejecting the claim that the weak reading alone captures his view. In any case, the weak reading is, I think, apart from whether it is Rawls’s view, unattractive as an account of the moral ideal of reciprocity Rawls means to invoke, or, in any case, less attractive than the strong reading. The trouble for Rawls’s liberal principle of legitimacy, then, is that it is undermined just exactly to the extent that we adopt the strong reading of reciprocity. And there are good reasons to adopt that reading, at least over and against the weaker alternative. The upshot, I maintain, is that Rawls’s liberal principle of legitimacy is in trouble. It simply can’t withstand a careful analysis of reciprocity and reasonable disagreement. But it doesn’t follow that one must set Rawls’s work to the side to theorize political legitimacy under conditions of reasonable pluralism. I argue that by drawing from other elements within Rawls’s own work we might proceed toward an alternative and less problematic principle of legitimacy. I suggest that we couple the generic account of legitimacy Rawls offers in The Law of Peoples3 with an alternative, let us call it democratic rather than liberal, conception of reciprocity between free and equal citizens under conditions of reasonable pluralism. To distinguish this alternative from Rawls’s own liberal principle, I refer to it as a ‘‘democratic principle of legitimacy.’’ I do not mean to lay claim here to anything more than articulating an alternative account of legitimacy appropriate for a pluralist liberal democracy the elements of which are in some sense already present in Rawls’s own thinking. That his thinking permits the articulation of such an alternative is, no doubt, a sign of its enduring fecundity.

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2. RECIPROCITY AND THE LIBERAL PRINCIPLE OF LEGITIMACY

While there is little agreement among political philosophers regarding the demands of justice and legitimacy, there is nevertheless broad agreement that justice and legitimacy refer to two different values a body politic ought to realize.4 Substantively unjust laws may be legitimately enforced within a particular state. And a state sometimes may legitimately enforce its whole legal system notwithstanding the fact that it contains some number of substantively unjust laws or otherwise falls short of justice taken as a whole.5 And, reversing matters, legitimate coercive political authority must claim for itself more than substantive justice. A substantively just rule not properly enacted or otherwise made law may not be legitimately enforced. And substantively just laws may be legitimately enforced only within their proper jurisdiction; the laws of Sweden, for example, cannot be legitimately enforced in the United States. In the ideal, of course, state action ought to be both legitimate and just. Legitimate state action ought always to aspire to and at least approximate full compliance with the demands of justice. And coercive state action for the sake of justice ought always be legitimate state action. But legitimacy and justice are not fully independent values for Rawls. Rawls rejects not only Weberian accounts of legitimacy, which appeal to the mere fact of acquiescence to coercion by a population, but also purely proceduralist accounts that reduce legitimacy to procedural pedigree alone (manner of enactment, etc.).6 The fact is, Rawls says, ‘‘[l]aws cannot be too unjust if they are to be legitimate,’’ the merits of their pedigree notwithstanding.7 Thus, while legitimate state action may be unjust to some degree, it must not be unjust by virtue of violating certain basic or bedrock standards of justice. In TJ Rawls did not explicitly address the legitimacy of the coercive authority deployed by a state faithful to his two principles of justice.8 He focused there on setting out and defending his two principles of justice, first simply as


principles, but then as institutionally embodied, under the assumption that, once institutionally embodied, citizens would share in a general consensus as to the merits of the principles as well as their philosophical and moral justification. Within this context, the legitimacy of coercive state action does not arise as a central concern. By the early 1980’s, however, Rawls came to see that in any society faithful to his two principles, indeed in any free and open society, citizens will forever reasonably disagree over comprehensive moral, religious and philosophical doctrines, as well as theories of justice.9 No longer able reasonably to assume the sort of general consensus he thought likely to be ushered in by the institutional embodiment of his two principles, Rawls found issues of legitimacy increasingly central to his project. This is the fact of reasonable pluralism or reasonable disagreement.10 It is, Rawls insists in his later work, a fact unreasonable to deny.11 It raised for Rawls a new question: How is legitimate state action possible in a society governed by the principles of justice as fairness when the citizens of such a society inevitably and reasonably disagree over both moral, religious and philosophical doctrine and the merits of justice as fairness as a theory of justice? It would seem that in such a society citizens would have no common ground from which to collectively accept as legitimate any particular rulegoverned political-legal order charged with securing justice as fairness or any other determinate conception of justice.12 This is the legitimacy problem. If freedom leads to reasonable disagreement over matters of religious, philosophical and moral doctrine, as well as over theories of justice, how is legitimate coercive state action possible in a free society? Or better, how is it possible for a free people to come publicly to regard as legitimate their own state, even as they remain divided over theories of justice as well as the moral, religious, and philosophical doctrines that typically undergird them? As this question moved center-stage in Rawls’s thinking, the focus of his work in liberal political theory shifted from justice to legitimacy.13 Rawls gave his fullest response to this question regarding the legitimacy of a liberal democratic

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order in PL. Indeed, it would not be misleading to say that ‘‘political liberalism’’ refers to Rawls’s theory of legitimacy, while ‘‘justice as fairness’’ refers to his theory of justice. The two are intended, of course, to work together, expressing a coherent and complete political ideal for any body politic the members of which regard themselves, politically speaking, as free equals.14 But as a theory of legitimacy, political liberalism cannot and does not presuppose the singular correctness of justice as fairness as a theory of justice (though, of course, Rawls remained cautiously confident that justice as fairness was the correct view, or more correct than available alternatives). PL introduces several new ideas to Rawls’s overall political theory.15 But the most important of these, other than the fact of reasonable pluralism or disagreement itself, is Rawls’s liberal principle of legitimacy. This principle holds, to cite one formulation, that ‘‘our exercise of political power is fully proper only when exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.’’16 This principle, like justice as fairness itself (Rawls’s substantive conception of justice), is rooted, on Rawls’s view, in the ideal of reciprocity.17 Rawls uses ‘‘reciprocity’’ in two ways. The first we might call reciprocity of advantage. When persons interact with reciprocity the terms of their interaction are situated ‘‘between impartiality, which is altruistic [because it entails the possibility of self-sacrifice], and mutual advantage [which may be secured regardless of initial starting points or baselines for assessing advantage] (additions mine).’’18 Persons interact with reciprocity when the terms of their interaction secure mutual benefit from a starting point or baseline that is acceptable to each from a shared and appropriate moral point of view. Reciprocity of advantage, then, is a particular application of a second and more fundamental sense of ‘‘reciprocity.’’ This we might call reciprocity in justification. Reciprocity in justification requires persons, when interacting


with others, to limit the principles from and in accord with which they act to principles they are prepared in good faith to justify to others from a shared and appropriate moral point of view.19 Reciprocity of advantage simply expresses the demands of reciprocity in justification when the relevant interaction is cooperative. What Rawls’s liberal principle of legitimacy says, then, is that coercive political authority is legitimate when exercised pursuant to and in accord with a constitution the essentials of which satisfy the demands of reciprocity in justification, where the relevant common or shared and appropriate moral point of view is that of citizens as free equals, politically speaking. It is here that Rawls builds substantive demands of justice into his conception of legitimacy. Legitimacy, of course, requires that coercive state action be properly pedigreed by virtue of its arising out of (and remaining in accord with) established procedures. But it requires more than that. It requires also that those procedures themselves satisfy, in their essentials at least, reciprocity in justification. And reciprocity in justification, here, Rawls insists, is not a merely procedural notion. It demands not merely justification to others on whatever terms they might happen to accept from any point of view they might happen to occupy, but rather a public justification to others from a common human reason on terms all sides could or do accept as free equals. A constitution the essentials of which satisfy this demand for reciprocity in justification is just, at least in its essentials, to a degree sufficient to underwrite the presumptive legitimacy of coercive state action pursuant to and in accord with it. Legislation and coercive state action pursuant to and in accord with such a constitution, Rawls says, ‘‘would almost always be legitimate.’’20 Legitimacy may appear here to be primarily a matter of procedure or pedigree. But that appearance is misleading, since it is the justice of the procedure, of the constitution, that permits an inference to legitimacy from procedural pedigree alone. Of course, since no real world constitution, not even one that meets in its essentials the demands of reciprocity in justification, can guarantee

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legislation that is ‘‘not too unjust,’’ citizens must always be ready to assess legislation not simply for legitimacy but also for justice. By honoring, or striving to honor, the liberal principle of legitimacy, citizens express to one another their mutual respect as free and equal members of a common body politic. Coercive state action, the coercion of some by the collective all, is made legitimate by subordinating it to mutual respect between all. It is important to note here just what it is that is being respected, that demands respect, on Rawls’s view. It is each citizen’s capacity for independent judgment regarding the aims and limits of political action (along with much else falling under those headings). It is this that citizens must respect in one another as they endeavor to make together a common body politic and shared political world.

3. LIBERAL LEGITIMACY, REASONABLE DISAGREEMENT AND CONSTITUTIONAL ESSENTIALS

Under conditions of freedom, the exercise of this capacity for independent individual judgment, Rawls insists, leads inevitably to public disagreement, over matters of moral, religious and philosophical doctrine, as well as the demands of justice. These public disagreements will persist over time, even among citizens of manifest good will, high intelligence, and a firm commitment to reasoned argument. They present a special challenge. Citizens committed to respecting one another’s capacity for individual judgment must reconcile themselves to and find ways to accommodate the existence of such disagreements, at least in political life. To do otherwise would be to deny at least some citizens the respect they are due. And this would be, on Rawls’s view, unreasonable, or an unreasonable response to the existence of such apparently intractable public disagreements. The more reasonable path, the path of mutual respect between citizens, Rawls maintains, is to affirm the ‘‘fact of reasonable pluralism’’ as a permanent fact of any free and open


society, and to accept this fact without resentment or anxiety.21 Liberal legitimacy begins here. On Rawls’s view, it requires a constitution the essentials of which satisfy the demands of reciprocity in justification between citizens reasonably divided over many of their most important beliefs and commitments. Only if their constitution in its essentials satisfies reciprocity in justification will citizens have reason to regard coercive state action pursuant to and in accord with it as consistent with respect for their individual capacities for judgment and thus presumptively legitimate. To satisfy the demands of reciprocity in justification among citizens who regard themselves as free and equal, politically speaking, a constitution must be at least generically liberal, on Rawls view. Rawls identifies three things a generically liberal constitution will do. First, it will specify and assign individuals certain familiar rights or liberties and opportunities (for office, etc.). Second, it will assign the set of such rights and liberties and opportunities priority over other familiar claims on or by the body politic regarding the common good or perfectionist ends. Third, it will commit the body politic to securing for all citizens adequate all purpose means to make effective use of the rights, liberties and opportunities assigned them.22 The latter requirement need not, perhaps ought not, be part of a written Constitution on Rawls’s view. But as a fundamental matter of generic liberal justice, it remains a constitutional essential in the ‘‘small ‘c’’’ sense of constitution.23 To these three requirements of a generically liberal constitution we may add a fourth. A generically liberal constitution must commit itself, in at least the ‘‘small ‘c’’’ sense of constitution, to the fact of reasonable disagreement. That is, it must embody a commitment to full political respect for and between those reasonably divided over matters of moral, religious or philosophical doctrine, or over one of any number of possible (generically liberal) reasonable conceptions of justice. That this is Rawls’s view is perhaps most clearly revealed by his commitment to ‘‘neutrality of aim’’ as a fundamental norm essential to any generically liberal constitutional regime.24

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Citizens and officials committed to such a constitution will still reasonably disagree over a great deal when it comes to issues of political and social justice. They will disagree, for example, over the merits of particular conceptions of justice.25 Further, even those who share a particular well-defined liberal conception of justice will often reasonably divide over its articulation and development through particular laws and institutions. These ordinary political disagreements Rawls regarded as properly resolved through constitutional democratic procedures. That a generically liberal constitutional order requires some form of constitutional democracy follows more or less straightway from the generically liberal commitment to the priority of a system of equal, basic, and familiar liberties, including political liberties, over the other demands of justice. Rawls recognizes generally two kinds of regimes as consistent with his two principles of justice: a propertyowning democracy and a liberal democratic socialism.26 Democracy is, at least for Rawls here, to be understood constitutionally rather than procedurally. That is, in neither a property-owning democracy nor a liberal democratic socialist regime is democracy merely procedural. It is rather constitutional in the sense that it constitutionally commits the body politic to, and itself embodies, certain substantive positions on justice, namely those ingredient in generic liberalism (including, for example, affording persons resources adequate to the exercise of their political liberties).27 That political decisions be reached through democratic procedures is necessary but not sufficient for them to be legitimately enforced. Two other conditions must be met. First, the particular democratic decision procedure must be one that meets the demands of reciprocity. It must, at least in its general structure, embody terms publicly justifiable from a common human reason and shared and appropriate moral point of view. This is true of all constitutional essentials and the general structure of democratic processes is itself a constitutional essential.28 Second, the democratic process must include a commitment to the moral ideal of public reason. This ideal expresses the demands of reciprocity in justification on


citizens and officials in public political life. It cannot, of course, be fully incorporated directly into the institutional structure of democratic procedures. There is no way through law or institutional design to force fidelity to such an ideal. But it can be incorporated indirectly, via the ‘‘small ‘c’’’ constitution to which it belongs, as a moral (not legal) norm governing both citizens and officials in their political judgment and voting and the Supreme Court in its exercises of judicial review.29 The legitimacy of any coercive state action is always in part a function of fidelity on the part of citizens and officials to this moral norm. Where these two further conditions are met, Rawls reasons, democratic resolutions of reasonable political disagreements will almost always yield laws legitimately enforceable. Note here that it is not enough that some generic conception of democracy satisfy the demands of reciprocity when it comes to identifying a decision procedure for the resolution of reasonable political disagreements. Citizens need (and need to embed in their constitution) a concrete, determinate and workable decision procedure (not a generic commitment to some form or other of democracy) for resolving their reasonable political disagreements. And they need one a determinate democratic order that meets the demands of reciprocity; otherwise some will be able to resist as illegitimate (on Rawls’s own conception of legitimacy) the coercive enforcement of political resolutions democratically reached, regardless of whether all citizens honor the ideals of reciprocity and public reason in their voting. Rawls’s liberal principle of legitimacy requires, then, not just that a generically liberal constitutional order meet the demands of reciprocity, but also that the particular institutionally realized democratic decision procedure for resolving reasonable political disagreements do so as well. So, in addition to (a) the fact of reasonable pluralism itself and (b) generic liberalism, Rawls’s liberal principle of legitimacy requires citizens to be able to meet the demands of reciprocity in justification also with respect to (c) a determinate democratic decision procedure for resolving reasonable

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political disagreements. This is a tall order. Too tall, I fear. These are all matters over which citizens do now, and may for the foreseeable future be expected to, reasonably disagree. Or at least that is what I shall argue. If I am right, then it would appear that either Rawls’s liberal principle of legitimacy is in trouble, or legitimacy is just not something to be reasonably hoped for in pluralist democracies like the United States. Neither alternative is very attractive, though of the two the former is more attractive than the latter. For it is possible to reject Rawls’s liberal principle of legitimacy and still argue, from an alternative principle or conception of legitimacy, to the legitimacy or potential legitimacy of coercive state action in pluralist democracies like the United States.

4. REASONABLE DISAGREEMENT: DEEPER AND WIDER

Reasonable disagreements are, on Rawls’s account, disagreements rooted not in some identifiable, reproachable and correctable failure of rationality or reasonableness on the part of one party or another to the disagreement, but rather in one or another nonreproachable and ineliminable feature of or limit on the free and collective exercise of human reason, even by persons of high intelligence and manifest good will, e.g., Aquinas, Bentham and Kant. These features or limits on the free collective exercise of reason Rawls refers to as the burdens of judgment.30 Because of the burdens of judgment, reasonable disagreements, especially doctrinal disagreements, are to be expected in religion, morality and philosophy (and elsewhere) under conditions of freedom. Reasonable disagreements persist not because some individuals inevitably fail to reason soundly, but rather because the burdens of judgment are a permanent feature of and limit on the collective exercise of human reason, even when all individuals reason soundly.31 Since they may persist even when individuals reason soundly, they raise special problems for a political theory committed to an ideal of reciprocity in justification not raised by disagreements simpliciter.32


This crucial point merits some further elaboration. Many Catholics, Protestants, non-Christian theists, and atheists reasonably disagree over religious doctrine. What this means is that their doctrinal religious disagreements are rooted in the burdens of judgment rather than in some necessary failure of rationality or reasonableness on any of their parts. The burdens of judgment are burdens on the collective exercise of a common human reason. They explain the persistence of reasonable disagreements between those reasoning soundly within a common human reason. So while all cannot finally have the truth, all may reasonably affirm their religious doctrines from within a common human reason. Catholics may correctly say to themselves: ‘‘Not only is my doctrine true or correct, but it is one that any reasonably intelligent and purehearted non-Catholic could accept merely through sound reasoning from within a common human reason.’’ What Catholics may not correctly say to themselves is: ‘‘The only possible explanation for why any others disagree with me and reject Catholicism is that they are irrational or unreasonable or both.’’ Because they cannot say this, Rawls maintains, Catholics must refrain, out of respect for their fellow citizens’ capacities for individual judgment, from proposing or endorsing principles of justice or positions on fundamental political issues tied exclusively to Catholic religious doctrine. To not so refrain would be to express disrespect for others and to violate the ideal of reciprocity in justification. 4.1. Reasonable Second-Order Disagreements The problem is that the burdens of judgment make reasonable disagreement ineliminable with respect to far more than the questions of moral, religious and philosophical doctrine Rawls has in mind. Consider first the criteria we invoke when making distinctions between simple and reasonable disagreements. It may be noncontroversial to describe as simple a disagreement over the conclusion to a purportedly deductive argument when one party demonstrably fails to adhere to standard rules of deductive inference. But this is just because

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there is little disagreement at all over the standard rules of deductive inference. But suppose we have a disagreement over the conclusion to an obviously inductive argument.33 Here whether we describe the disagreement as simple or reasonable will depend on what we take to be the correct standards of inductive inference. But this is pretty clearly a matter over which people may and often do reasonably disagree. The burdens of judgment make possible, then, not only reasonable first-order or substantive disagreements, but also reasonable second-order or meta-disagreements about how exactly the line running between simple and reasonable disagreements itself ought to be drawn.34 This same point may be made, of course, with respect to other criteria Rawls invokes to mark the line between simple and reasonable disagreements. A disagreement is simple rather than reasonable, for example, when it is best explained by reference to a systematic bias or prejudice on the part of one party or a dogmatic refusal to consider relevant evidence. But persons of high intelligence and manifest good will may themselves reasonably disagree over when refused evidence is relevant, or when a refusal to consider relevant evidence is dogmatic, or when a particular chain of reasoning is infected by systematic bias or prejudice rather than, say, merely impolite generalizations or an overly cautious disposition. The point here is not to call into question the distinction between simple and reasonable disagreements. The point is just that the line marking the distinction is itself a matter of reasonable disagreement. Consider next the fact of reasonable pluralism. Rawls regards this fact as a permanent fact in any free and open society. But he allows that with respect to science, humans seem able through the free, public and collective exercise of their reason to overcome the burdens of judgment and arrive at well-reasoned doctrines, increasingly complex and complete, from which dissent is simply unreasonable. But this raises a question: If we can so overcome the burdens of judgment in the free, public and collective exercise of our reason in the domain of science or natural philosophy, why then


are things different with respect to morality, religion and other domains of philosophy? If Rawls’s fact of reasonable pluralism is to qualify as a fact immune to reasonable dissent, then there must be an answer to this question that no citizen could reasonably reject. To affirm the fact of reasonable pluralism as Rawls casts it, one must have in mind some plausible explanation of why the burdens of judgment generate reasonable disagreement with respect to moral, religious and philosophical doctrine, but not science. To have no plausible explanation of this is to fail fully to understand or affirm the fact of reasonable pluralism as Rawls casts it, leaving one with no clear basis for distinguishing between reasonable and simple disagreements. Rawls grounds this distinction in the burdens of judgment. But they do not by themselves underwrite the distinction as Rawls deploys it, since they are as applicable to doctrinal questions in science as in morality, religion, and philosophy, and yet do not in science generate the same level of intractable reasonable disagreement. So more must be said. Two kinds of answer are possible here, but each is problematic. The first insists that there are key differences between science, on the one hand, and morality, religion and philosophy, on the other, differences that make a difference when it comes to the ability of humans to overcome the burdens of judgment in the collective use of their reason in these various domains. While this is perhaps not implausible, it is hard to see how any account of such differences could itself stand beyond the reach of reasonable disagreement.35 The second kind of answer urges that there only appears to be a (but there really is no) great divide in how the burdens of judgment apply to science, on the one hand, and morality, religion and philosophy, on the other. But this means either that the fact of reasonable moral, religious and philosophical pluralism is not really (but only appears to be) a permanent fact under conditions of freedom (and would perhaps therefore be better described as a fact of modernity),36 or that science is not really (but only appears to be) generating

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doctrinal consensus not open to reasonable dissent. Both of these alternatives raise problems for Rawls’s view. According to the former, the fact of reasonable pluralism is a temporary and historically bounded rather than permanent fact of a free and open society. It is a fact about modernity rather than inevitable product of the free public exercise of human reason. According to the latter, doctrinal consensus in science is only apparent. It is the result not of scientists overcoming the burdens of judgment, but rather of their being driven by other burdens external to the reasoning process (e.g., institutional forces and incentives privileging consensus and thus consensus-generating methods of inquiry). Absent these additional burdens, science is as likely to terminate in intractable reasonable doctrinal disagreement as morality, religion or philosophy. Affirming either of these understandings of the fact of reasonable pluralism would require substantial revisions to other elements in Rawls’s theory. The former would limit the reach of his ideals of public reason and liberal state neutrality to a particular historical moment in a free and open society and to invite hope for the day when reasonable doctrinal disagreement is a thing of the past. The latter would exclude or potentially exclude a great deal of scientific doctrine from the content of public reason in any liberal democracy. It would appear, then, that there is no particular understanding of the fact of reasonable pluralism that is not likely to be reasonably rejected by some significant number of citizens. But it might be objected here that so long as citizens all affirm the fact of reasonable pluralism as Rawls understands it, it is beside the point whether they do so for one and the same reason or for any reason beyond the reach of reasonable disagreement. Of course, the chances of citizens affirming the same or nearly the same content named by the fact of reasonable pluralism while substantially disagreeing over its explanation would seem remote at best. Different explanations lead inevitably to different content. The fact of reasonable pluralism is permanent or it is only our temporary condition. It doesn’t reach to scientific doctrine or it does.


It reflects fundamental metaphysical or epistemological differences in our relationship to the natural world, on the one hand, and to ourselves, the world of values, and the divine, on the other, or it does not. For the fact of reasonable pluralism to play for Rawls the theoretical roles he assigns it, citizens must affirm roughly the same content when they affirm it. But this they’ll likely do only if they all affirm it for roughly the same reasons. Thus, Rawls owes us an account of what these reasons are and why it would be unreasonable for any citizen to reject them.37 But here he points only to the burdens of judgment. That may be the right way to start the story. But the story remains incomplete. A critic here might argue that it is unfair to criticize Rawls for not having an explanation of the fact of reasonable pluralism that no reasonable citizen could reasonably reject.38 After all, even if Rawls had such an explanation, it would remain possible to call for its explanation, and again on terms no reasonable citizen could reasonably reject, and so on indefinitely in an infinite regress. But the criticism of Rawls is not unfair. It is Rawls who affirms reciprocity in justification as a foundational moral norm for a liberal democratic people. And it is Rawls who regards that norm as fully satisfied only when citizens are able publicly to defend their constitutional order from a common human reason and shared moral point of view. Since Rawls set the standard himself, it is not unfair to point out that it is a standard that cannot be met. 4.2. Reasonable Disagreement and Generic Liberalism The fact of reasonable pluralism or disagreement is not the only area where Rawls problematically underestimates the extent of reasonable disagreement. His liberal principle of legitimacy depends also on citizens arriving at a reasoned overlapping political consensus over an at least generically liberal conception of justice. But is it really plausible to claim that from the shared moral point of view of citizens as free equals there can be no reasoned dissent from generic liberalism, that

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while citizens may reasonably dissent from this or that liberal conception of justice, they cannot reasonably dissent from or oppose the family of generically liberal conceptions?39 To be sure, not all dissent from generic liberalism is reasonable. Nazi dissent is not reasonable. It simply rejects the liberal democratic starting point of citizens as free equals. But what of Marxist, communitarian, libertarian and other apparently more reasonable forms of dissent? Insofar as Marxists, communitarians, libertarians and other such dissenters reject generic liberalism, Rawls is committed to regarding their dissent as unreasonable, even if not quite as unreasonable as Nazi dissent. The dissent of Marxists, communitarians, libertarians and the like is unreasonable not in the radical sense that each rejects the ideal of citizens as free equals, but rather in the sense that each makes a simple mistake at some point along the way to an adequate conception of justice. Marxists and communitarians mistakenly give priority to the good over the right. Libertarians mistakenly make transactions rather than the basic social structure the first subject of justice.40 Because these are simple mistakes, the dissent to which they lead is unreasonable and need not be accommodated. Of course, it still makes sense to distinguish unreasonable Nazi dissent from unreasonable libertarian dissent. The Nazi dissenter rejects generic liberalism wholesale and from the roots. The libertarian dissenter, on the other hand, is more like a prodigal son. It remains possible that through continued conversation and imminent critique he might be brought to see his simple mistake and easily be brought back into the fold of the generically liberal family.41 But how can it be that the disagreements between liberals and critics over the priority of the right over the good or over the basic social structure as the first subject of justice are simple rather than reasonable disagreements? These are precisely the sorts of disagreements one might expect, given the burdens of judgment, to saddle persons of high intelligence and manifest good will in political life. Hayek and Nozick are not simply mistaken to reject the basic social structure as the


first subject of justice. Their libertarian dissent cannot be dismissed as simply unreasonable. MacIntyre, Hauerwas, communitarians, Christian and liberal perfectionists, and Marxists are not simply mistaken to reject the priority of the right over the good and with it the priority of basic rights over other claims concerning the common good. Their dissent too cannot be dismissed as simply unreasonable. There is something powerfully counter-intuitive about Rawls’s view here. Isn’t it more plausible to regard the sorts of dissent just mentioned as arising out of reasonable disagreements? These disagreements may center on how to understand or interpret the moral ideal of free and equal citizens securing fraternity or solidarity through shared membership in a body politic that is just and good, or on how to understand historical and social scientific data relevant to any assessment of generic liberalism data bearing on the relationship between private ownership of the means of production and democratic freedom, or a state’s aspiration to a patterned theory of distributive justice and tendency to develop into an oppressive bureaucracy, or the effects of a culture of individual rights on the ability of individual persons to realize their own good. If these are the roots of libertarian, communitarian, Marxist and similar lines of dissent from generic liberalism, then it is hard to see how Rawls could regard these as anything other than expressions of reasonable dissent. Their origin lies in just the sort of disagreement likely to divide persons of manifest good will and high intelligence as they search for a shared conception of justice. But then generic liberalism is not beyond the reach of reasonable disagreement. 4.3. Democratic Institutions and Reasonable Disagreement Consider finally questions of democratic institutional design. Democratic institutions are required and justified, on Rawls’s view, both by the ideal of citizens as free equals sharing in final political authority over the basic structure of their society and by instrumental concerns to secure in regular and

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reliable ways just or nearly just outcomes through political decision-making processes. This seems right so long as we think of democratic institutions generically. But recall that what Rawls’s liberal principle of legitimacy requires is a reasoned consensus over a particular and determinate democratic constitutional order. This seems unlikely. Surely citizens may reasonably disagree over which determinate design for democratic institutions is most or even adequately faithful to the ideal of their sharing as free equals in final political authority over the basic structure of their body politic. How to design democratic institutions so as to capture this moral conception of citizenship is a matter that turns on both how one orders and develops highly abstract values and how one settles complex empirical questions, and thus a matter to which the burdens of judgment paradigmatically apply and with respect to which we ought to expect reasonable disagreement. Citizens who reject winner-take-all conceptions of democracy in favor of proportional representation, for example, may do so on the grounds that only the latter adequately embodies the ideal of citizens sharing as free equals in final political authority over their body politic. Or they may insist that winner-take-all conceptions are reasonable only if coupled with prohibitions on gerrymandering voting districts to diminish the electoral impact of minorities. Or, to invoke another example, those who demand publicly funded elections may reasonably think public funding of elections so essential to the institutional realization of democratic ideals, especially where wealth inequalities are massive, that they are prepared to reject any democratic order that does not include public funding of elections. Against all these critics of the status quo, of course, others will have their own arguments, many no doubt reasonable, in defense of the status quo.42 The result here is that even if we (ignore my argument regarding generic liberalism and) suppose with Rawls that generic liberalism and thus some commitment to generic democracy is beyond the reach of reasonable disagreement, the concrete determinate details of any particular democratic


order will themselves inevitably be objects of reasonable disagreement. It is tempting here just to claim that such disagreements ought themselves to be settled democratically, and that if they are so settled (assuming citizens faithful to the ideal of public reason), then the results the particular democratic regime that emerges as democratically favored may be legitimately enforced. But this is circular. The democratic resolution of reasonable disagreement preserves reciprocity in justification and thus liberal legitimacy only if the democratic process itself satisfies the same conditions. Where citizens reasonably disagree over the essential design of democratic institutions, there is no democratic process available to them for resolving those disagreements such that the result will meet the demands of reciprocity in justification and thus enjoy the moral credentials of liberal legitimacy. One way to break out of this circle might be to invoke transition costs as a metacriterion for selecting among competing reasonable democratic institutional designs. Thus, one might say that citizens reasonably divided over the merits of various democratic institutional designs ought nevertheless to agree that whatever design closest to the one already in effect is best, since the transition costs of moving to it would be the least. Unhappily, invoking such a metacriterion for settling reasonable disagreements over democratic institutional design cannot save the Rawlsian position here. To see this, consider, first, that so long as the status quo democratic institutional design is among the alternatives over which citizens are reasonably divided, the proposed metacriterion simply entrenches the status quo. Reasonable citizens will thus reject any appeal to this metacriterion as the sole or determinative criterion for selecting among reasonable alternative democratic institutional designs. For to accept it as such would be to render pointless the moral evaluation of reasonable democratic institutions, regardless of whether one had a better or more reasonable alternative. It follows that while reasonable citizens will certainly attend to transition costs as one metacriterion for selecting among reasonable alternative democratic institutional designs, they will attend

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to it as but one of several relevant criteria. One of these further relevant criteria must be the significance of the moral gain realized through any proposed revision or change to the status quo. But for any proposed revision or change, citizens will likely reasonably divide over not only the amount of the potential moral gain to be realized, but also its weight qua moral gain over and against whatever transition costs attend to its realization. Ignoring transition costs is probably unreasonable when thinking about matters of democratic institutional design. Taking them into account, however, is most unlikely to secure a reasoned consensus among citizens reasonably divided over the moral merits of various designs.43 The disagreements over the design of democratic institutions just discussed all concern the relationship between the ideal of citizens as free equals sharing in final political authority over the basic structure of their body politic, on the one hand, and the details of particular institutional arrangements, on the other. Of course, there are, on Rawls’s view, other reasons for democratic government. Democracy, Rawls maintains, is desirable also because of its superior tendency, if appropriately designed, to generate substantively just legislation. But here again citizens may reasonably disagree over which, if any, determinate design for democratic institutions will instrumentally serve their shared interest in securing substantively just outcomes through political processes. Consider the traditional epistemic case for traditional one-person, one-vote, majoritarian democratic procedures. This case, as has been known since Condorcet, depends on an empirical assumption that individual voters are, taken individually and independent of one another, more likely than not to get correct any particular substantive issue put to a vote. But whether this empirical assumption is satisfied or likely to be satisfied ever in the real world is just the sort of complex empirical question to which the burdens of judgment paradigmatically apply and with respect to which we ought to expect reasonable disagreement.44 If the available empirical evidence reasonably permits the conclusion that the average voter is more likely than not to get wrong any particular substantive issue put to a vote (or is rarely if ever the


sort of independent voter the Condorcet theorem presupposes), then the traditional epistemic case for one-person, one-vote, majoritarian democracy would appear to be subject to reasonable disagreement. Of course, we might try to salvage an epistemic argument for democracy by endorsing a system of plural voting with special qualification procedures for those whose votes count for more.45 But then we must confront the question of whether any system of plural voting is consistent with our underlying democratic ideal of citizens sharing as free equals in the final political authority over the structure of their social world. And this surely returns us to the domain of reasonable disagreement, though now as regards the proper conception of an abstract moral ideal rather than whether the empirical premises of the Condorcet theorem are satisfied. What I have endeavored to show in this section is that if we take seriously the fact of reasonable disagreement, as Rawls surely intends us to do, then Rawls’s liberal principle of legitimacy looks wildly utopian, in the pejorative sense. It requires a citizenry unified by a reasoned consensus over the fact of reasonable pluralism itself, over generic liberalism, and over a determinate democratic constitutional order. The possibility of any such citizenry, as I’ve suggested above, is simply wishful thinking, even under ideal conditions. We need, then, to confront anew the question of how it is that coercive political authority might be legitimate in a liberal democracy under conditions of reasonable pluralism or disagreement. But first we must consider a particular line of defense that may be invoked at this juncture on Rawls’s behalf by those with broadly Rawlsian sympathies.

5. RECIPROCITY: WEAK AND STRONG

Rawls intends his liberal principle of legitimacy to express the demands of reciprocity in political life for citizens who regard themselves as free equals, politically speaking. But there is an ambiguity in his discussions of reciprocity. Specifically, he

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suggests both a weak and a strong reading of reciprocity and its demands. Accordingly, one might speak of a weak and a strong version of the liberal principle of legitimacy.46 The weak reading of reciprocity requires that one be prepared only to justify to others the principles from and in accord with which one acts in terms others might reasonably accept from within a common human reason and appropriate shared moral point of view. On this reading, whether others from within a common human reason and appropriate shared moral point of view reject or even reasonably reject the principles from and in accord with which one acts is beside the point. All one need to know is that others could reasonably affirm one’s principles. This is a weak reading of reciprocity because under conditions of reasonable disagreement it requires very little of citizens in political life. Citizens reasonably disagree over an issue or doctrine when each reasonably affirms his or her position from within a common human reason and appropriate shared moral point of view yet dissensus persists. But if the parties to a reasonable disagreement each reasonably affirm their own position, then this weak reading of reciprocity requires very little of them vis a vis others. If Sally and Sue reasonably disagree over the constitutional acceptability of the death penalty, or abortion, or gay marriage, or proportional representation, or publicly funded elections, then each honors the demands of reciprocity simply by arguing and voting for her own position. If from a common human reason and moral point of view appropriate to free and equal citizens Sally reasonably affirms the proposition that the state must constitutionally recognize gay marriage if it recognizes heterosexual marriage, then it follows that Sue could reasonably affirm that same proposition. And so Sally satisfies the demands of reciprocity just insofar as she reasonably affirms her own view. If the liberal principle of legitimacy is read so as to embody only this weak reading of reciprocity, then it too demands very little. To be legitimate, coercive state action need only be pursuant to and in accord with a constitutional


order citizens could reasonably affirm from within a common human reason and appropriate shared moral point of view. Were it the case that many citizens in fact reasonably rejected the constitutional order of their body politic (or even the fact of reasonable pluralism itself, for that matter) that would be beside the point, at least insofar as legitimacy was concerned. So long as that order could reasonably be affirmed, state action might satisfy the liberal principle of legitimacy. Since nowhere in the previous section did I argue or give reasons for thinking that it is not possible reasonably to affirm the fact of reasonable pluralism, generic liberalism, and some determinate constitutional design, my criticism of Rawls’s liberal principle of legitimacy (assuming this weak reading of reciprocity) missed the mark. It missed the mark because the weak reading requires only that every citizen could reasonably affirm the essentials of the constitutional order, not that those essentials be immune from reasonable dissent. There is no shortage in Rawls’s work of textual and argumentative support for this view of reciprocity. Moreover, it fits well with debts Rawls may owe to Hart and Soper on legitimacy. H.L.A. Hart famously argued that genuine legal obligations, qua legal obligations, did not depend on the moral content of the relevant law or legal system, and arose instead out of a genuine rule-following practice effectively enforced by officials on citizens.47 That those subject to the law might reasonably reject the constitutional order was beside the point for Hart in terms of determining whether the law or legal obligation being enforced was genuine. Philip Soper undertakes, from Hartian premises, to establish what must be the case not simply for the law or legal obligation being enforced to be genuine, but rather for the citizen against whom it is being enforced to have at least a prima facie moral obligation to obey because it is a law or legal obligation (and correspondingly for the official to have at least prima facie moral authority to demand compliance).48 Soper argues that for this to be the case, the norms or rules internalized by officials and constituting their official rule-following activity must be norms or rules the officials themselves

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sincerely believe could in principle be affirmed by those subject to them and, accordingly, are prepared to defend before those subject to them (in terms of the common good and so on). Rawls cites Soper’s view favorably in this regard when setting out core features of his own view on legitimacy.49 What is important here is, first, that on neither Hart’s nor Soper’s view is legitimacy compromised by the fact that some or many citizens reasonably reject one or more of the essentials of their constitution, and second, that Rawls shares Soper’s view that a constitutional order must meet certain minimal moral criteria if the laws within it are to be enforceable through legitimate coercion. Notwithstanding the fact that this weak reading of reciprocity and liberal legitimacy is not wholly at odds with Rawls’s texts and arguments, there is nevertheless also textual and argumentative support for a stronger reading of reciprocity, one that requires of citizens that in political life they act from and in accord with principles others could not reasonably reject from within a common human reason and shared and appropriate moral point of view. This is a stronger reading of reciprocity because, to return to Sally and Sue above, it would require Sally to refrain from acting from and in accord with principles Sue reasonably rejects, even if Sally herself reasonably affirms them and thus sincerely believes that Sue too could reasonably affirm them. It seems likely that one reason Rawls sometimes writes in terms that suggest this stronger reading of reciprocity is that the weaker reading can seem morally deficient. Surely, reciprocity must demand more than that we act toward our fellow citizens in political life in accord with and from principles they could reasonably accept, if only they were presently to see the world as we do, call the hard questions and draw tenuous inferences just as we do, and thus share our doctrinal commitments, religious view, and the like. The ‘‘more’’ that reciprocity must demand, it may seem, is that we act toward our fellow citizens in political life in accord with and from principles they could reasonably affirm and could not reasonably reject as fellow citizens, as free equals, politically


speaking. After all, if we affirmed only the weaker reading of reciprocity, then assuming theists and atheists reasonably disagree over the existence of God, each would be free to advocate and vote for a constitutional order expressing directly his or her religious position. But surely the ideal of reciprocity does not or ought not leave each morally free in this regard. But if it does not or ought not leave each morally free in this regard, then that must be because reciprocity requires citizens to refrain from acting from and in accord with principles others could reasonably reject from within a common human reason and shared and appropriate moral point of view. After all, as Rawls says, a principle of legitimacy ought to require more than that those who are in power ‘‘can satisfy themselves in the light of their own convictions that they are acting properly.’’50 This is a Hartian view, and Rawls clearly rejects it. But note here that there is a difficulty with moving from the weak to the strong view of reciprocity and thus liberal legitimacy. And that is that while the counterfactual aspect of ‘‘could’’ renders the weak could reasonably affirm formulation of reciprocity virtually toothless (since so many things ‘‘could’’ reasonably be affirmed), it renders the strong reading virtually ruthless. That is, on the strong could not reasonably reject formulation, reciprocity demands more than that no citizen right now in fact reasonably reject the fundamental terms upon which I propose to interact in political life. It demands that no citizen could reasonably reject those terms now or at any future point in time. Suppose on some particular Sunday all American citizens were suddenly to see ‘‘The Light of Reason’’ and convert to Catholicism so that all Americans reasonably affirmed Catholicism. The fact would remain, on Rawls’s view, that any one of them could, on Monday or any later day, reasonably reject Catholicism. The mere fact of contingent consensus does not place Catholicism beyond the reach of reasonable disagreement. And so while all Americans might today reasonably affirm proposed terms of political interaction that presupposed or gave institutional embodiment to Catholicism, they could not in fact adopt

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such terms without violating the ideal of reciprocity, at least on the strong reading. For on that reading it is beside the point that everyone happens now reasonably to affirm Catholicism or a fully Catholic political doctrine. What is salient is the fact that anyone could reasonably reject either from within a common human reason and the shared moral point of view of free and equal citizenship. Thus, the strong reading of reciprocity entails liberal and religiously neutral political institutions regardless of the degree to which citizens reach a reasoned consensus over any particular religious view. This would seem to be Rawls’s substantive political view, and that it is suggests that Rawls is not unsympathetic to the strong reading of reciprocity. So, at first blush it would appear that Rawls offers both a weak and a strong reading of reciprocity and thus of the liberal principle of legitimacy. Now, plainly, if the weak reading of reciprocity and accordingly of liberal legitimacy is the correct reading, if not as an exegesis of Rawls’s view then on its own terms, then the fact that reasonable disagreement extends to the matters I’ve argued it extends to is not fatal to Rawls’s liberal principle of legitimacy. But there are, I think, good reasons to reject the weak reading both as an exegesis of Rawls’s own view and on its own terms as an account of reciprocity in judgment. Consider first the exegetical question. If Rawls’s view of reciprocity was really the weak view, then important features of his post-1980 work turn out not to be well-motivated philosophically. So long as Kantians, Millians, Thomists and others affirm their respective doctrines from a common human reason, weak reciprocity leaves all of them free to seek the democratic realization in law of their own doctrinal positions. Of course, the adherents to these various doctrines may wish to preserve civic peace rather than put the power of the state to use in service of their comprehensive doctrine. And they may therefore choose to leave well enough alone and refrain from resting their political proposals and votes exclusively on their comprehensive doctrines. But the point is that if we adopt the weak reading of reciprocity and liberal


legitimacy, then concerns over the legitimate use of state power would have no bearing on their choice. Legitimacy is secured just insofar as they reasonably affirm their own doctrine. This, of course, is exactly the view Rawls rejects. And it is presumably because he rejects it that his post-1980 work includes extensive discussions of the idea and ideal of public reason in addition to his arguments for the possibility of an overlapping consensus over justice as fairness. As a matter of exegesis, then, the weak reading is not an attractive reading of Rawls’s view. It is also not an attractive reading on its own merits. Rawls has always insisted, rightly, that in political matters justification is always addressed to the other, to those who disagree with us, and thus properly proceeds from some consensus or common ground.51 The weak reading of reciprocity arguably trivializes this commitment since the consensus or common ground from which justification to others is to proceed is not only counterfactual but permissive, its content given by what others could reasonably affirm, rather than by what they could not reasonably reject (and therefore in some sense must or ought to affirm). There is for Rawls a dilemma with respect to reciprocity. The strong reading, which captures that which is morally appealing in the notion that political justification is always addressed to the other and thus aims to proceed from consensus or common ground, renders the liberal principle of legitimacy wildly utopian, since citizens can and do reasonably disagree over the nature of reasonable pluralism, generic liberalism, and determinate democratic decision procedures. The weak reading, which Rawls’s language often suggests, leaves much in his post-1980 work philosophically unmotivated. And it renders the liberal principle of legitimacy not wildly utopian but instead a toothless tiger, its demands satisfied just as soon as citizens come to regard their own views as reasonable. Rawls’s liberal principle of legitimacy cannot be saved so long as it is understood to embody the demands of reciprocity in judgment under conditions of reasonable disagreement.

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One might at this point give up on legitimacy altogether and concede that a liberal democratic state is, normatively speaking, not capable of acting legitimately. Of course, it may still act justly. And that, one might insist, is enough. In the end, given reasonable disagreement over the demands of justice, liberal democratic commitments express no more than a kind of faith, a faith the faithful must be prepared, through coercive state action, to realize in the world. On this view, politics is simply a competitive struggle for the power to realize one’s preferred political faith. The idea or ideal of legitimate (rather than simply just, by one’s own lights) state action is a red-herring, an incoherent vestige of the naive and misguided Enlightenment utopianism that supposed that through reason alone men might find a consensual basis for organizing themselves into and acting as bodies politic. This is, I think, an unattractive option, though it has its proponents. Rather than embrace a politics of faith and power, a politics guided by only our convictions regarding justice rather than justice and legitimacy, it seems wise to inquire first in to whether legitimacy under conditions of reasonable pluralism might be retheorized. Since the root of the problem for Rawls’s position is the ideal of reciprocity in judgment, perhaps we ought to inquire into whether legitimacy might be retheorized with an alternative ideal of reciprocity serving as our moral and political North Star.

6. FROM LIBERAL TO DEMOCRATIC LEGITIMACY

Rawls regards fidelity to both his ideal of reciprocity and his liberal principle of legitimacy as essential if citizens are to express mutual respect to one another as free equals in political life and secure for themselves political autonomy as a body politic.52 He aims to show that under democratic and pluralist conditions a just social order might be realized, preserved and perfected through the legitimate use of coercive state action. A just social order so achieved would stand as a genuine expression of the collective self-determination or


freedom of democratic citizens one and all, an expression of their common human reason, rather than the force or will of some. Any tinkering with Rawls’s ideal of reciprocity in judgment is likely to force revisions, then, not only to his conception of liberal legitimacy, but also to his conceptions of political autonomy and civic respect. But tinker with this ideal we must. For it is by virtue of its commitment to reciprocity in justification that the liberal principle of legitimacy is rendered either ruthless or toothless by reasonable disagreement. What we need is an alternative conception of both reciprocity and legitimacy, one well-suited to conditions of reasonable pluralism and faithful to the democratic commitment to citizens sharing as free equals in final authority over the structure of their body politic, but one cut free of reciprocity in justification. I want to suggest now how we might proceed to generate such a conception from within Rawls’s overall view. In The Law of Peoples, Rawls offers from a liberal democratic point of view a generic conception of political legitimacy against which nonliberal and nondemocratic but nevertheless decent peoples might be shown to be wellordered and thus to possess legitimate domestic political authority.53 There are two basic elements to this generic conception.54 The first is that political legitimacy exists only insofar as political society is constituted as a genuine system of social cooperation among persons. The second is that political legitimacy exists only insofar as a political society is able to generate genuine (if prima facie) moral obligations in favor of obeying the law. When these two conditions are met, coercive domestic political authority may properly be regarded as legitimate, generically speaking. Liberal democratic peoples will reasonably tolerate, even acknowledge with respect, other nonliberal or nondemocratic bodies politic as systems of legitimate political authority, provided they meet these conditions. Of course, liberal democratic peoples will demand of their own bodies politic more than that these two conditions be met as a matter of their own internal legitimacy. But these two conditions will still be among those they impose on their

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own bodies politic, even if they also go on to impose further conditions. But what does it mean for these two conditions to be met? The first condition requires a political society constituted as a genuine scheme of social cooperation among persons. The first thing to notice here is that it does not require a genuine scheme of social cooperation among persons who understand themselves for normative purposes to be situated within that scheme as free and equal individual persons. Persons may understand themselves as always already members of particular social groups, and subject to particular obligations as such, and still constitute themselves politically as a genuine scheme of social cooperation, even if their relationship to the body politic within and through which they cooperate is then always mediated by their group membership and group-based obligations. Still, regardless of how they understand their relationship to the body politic within and through which they constitute a genuine scheme of social cooperation, they must constitute themselves politically as a genuine scheme of social cooperation. And cooperation is not mere coordination. It is purposeful, rule-governed, and mutually advantageous. To be able legitimately to deploy coercive force against its constitutive members, then, a body politic must be organized and act in certain ways. It must purposefully aim at the mutual advantage of its members. And, under anything like modern conditions, it must do so under and through the rule of law. People cooperate within a basic social structure constitutive of a body politic to secure for themselves certain advantages, rights or entitlements, as citizens or cooperators. And to enjoy these advantages, to enjoy any rights or entitlements at all as the fruits of their cooperation as a citizen or member of the body politic, they must enjoy the basic rights to subsistence, security and certain core liberties within or through the rule of law. Otherwise their claim on the cooperative surplus is contingent upon the whims and desires of others, which may change at any time, and their interaction within and through a basic social structure is something other


than a form of cooperation. No body politic can possess the capacity legitimately to coerce its members, then, if it fails to secure for them all basic subsistence, security and certain core liberty rights. These are the rights, following Henry Shue, essential to or ingredient in any and all rights whatsoever.55 Among the core liberties that must be secured if a body politic is to be able legitimately to coerce its members are basic rights of political participation, the right to petition one’s government, to register dissent, to demand and receive a justification for state action, and the like. These are, along with basic subsistence and security rights, essential, then, to any plausible, even if generic, conception of legitimate politicallegal authority. As just noted, to be able legitimately to deploy coercive force against its members, a body politic must constitute and govern itself as a cooperative undertaking through a system of law or the rule of law. This system or rule of law must be one able to generate genuine (if prima facie) moral obligations to obey the law. This is Rawls’s second general condition of generic political legitimacy. To generate such obligations, a legal system must contain, at least so long as human beings remain what they are, what H.L.A. Hart called the ‘‘minimum natural law content.’’56 And this minimum natural law content must be extended to all human members of the body politic.57 In this way a legitimate body politic affirms the moral status of all its members as persons, even if it denies its members the constitutional status of free and equal individual persons or citizens. This content, that contained within the minimum natural law content, will overlap to some degree with the basic subsistence, security and core liberty rights that must be secured if a body politic is to constitute itself as a genuine scheme of social cooperation. As a universal condition of legitimate political authority, this content may be expressed in terms of basic human rights. A legal system able to generate genuine (if prima facie) moral obligations to obey must also, more generally, honor the rule of law (and the basic human rights it entails). There can be no genuine moral obligation to obey the law as law in the absence

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of the rule of law. Without the rule of law, one may have a prudential reason to obey commands issued in the form of law, or a moral reason to obey laws by virtue of their content, but one cannot have a moral reason to obey a law as a law. The rule of law, then, is essential to legitimate political authority in two ways. It is necessary (at least under modern conditions) for a body politic to be constituted as a system of social cooperation. And it is necessary for those participating in that system of social cooperation to have (at least prima facie) genuine moral obligations to obey the law.58 There is yet a further requirement that must be met if citizens are to have (at least prima facie) genuine moral obligations to obey the law. The officials administering the legal system must show through their behavior that they have internalized its central norms or rules, especially the secondary norms or rules of legal validity. Hart identifies this as a requirement of any genuine legal system. But, as noted earlier, Rawls agrees with Soper that this Hartian requirement (that officials have internalized the secondary rules of legal validity) must be recast or expanded if laws or legal obligations are as such to impose (at least prima facie) moral duties or obligations to comply.59 Officials must internalize the relevant norms and rules such that they do not regard them as giving reasons to guide just their own conduct, but as reasons also to guide the conduct of those subject to the law. And this means that they must be prepared to justify themselves to citizens by citing those norms and rules as reasons for their judgments and actions, and to listen and reply to dissent and objection from citizens in good faith. Thus, following Soper, Rawls maintains that no body politic can claim the power to coerce members legitimately if there is no right on the part of citizens to the minimum natural law content of any legal system, to dissent and petition their government, to receive a public justification for government actions, and the like. These are among the basic human rights essential to political legitimacy. Where all the foregoing conditions (rooted in the ideals of social cooperation and a legal order able to generate bona


fide moral obligations) are met (and, we might add, provided officials are able to secure more or less general compliance with the law), a body politic may be able legitimately to coerce its members. On Rawls’s view, it is legitimacy so understood that liberal democratic peoples may justifiably demand of all peoples as a condition of their being recognized as full and genuine members in a just international society of peoples. Peoples or bodies politic need not constitute themselves as liberal democracies to merit such recognition. But they must constitute themselves as constitutional republics (for that is more or less what the foregoing conditions taken together require). Liberal democracies ought to recognize and tolerate nonliberal and/or nondemocratic, but otherwise generically legitimate (or, as Rawls says, ‘‘wellordered and decent’’) regimes (assuming there are some). That is one of Rawls’s key claims in The Law of Peoples. Note here that in their domestic affairs decent peoples do not honor reciprocity in justification. What they do honor is a reciprocity in interests as between persons understood, for political purposes, to stand before the body politic not as free equals but as always already situated by group membership and obligations. That is part of what Rawls means when he says that decent peoples are genuine systems of cooperation, even if they’re not organized as between citizens as free equals. Now, regardless of what one thinks of this commitment to international toleration, Rawls is surely correct here on two fronts. The first is that political legitimacy requires at least the foregoing, a reciprocity in interests as he sets out as the conditions of well-ordered decency. The second is that the foregoing is too thin a conception of political legitimacy for liberal democratic peoples to use in their own self-evaluation. Of themselves, they must surely demand more. Liberal democratic citizens have good reasons to demand of their own bodies politic fidelity to a richer and more distinctively democratic conception of political legitimacy, one that takes adequate account of the basic democratic commitment to the freedom and equality of each individual citizen, simply as an

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individual citizen, vis a vis the cooperative scheme that is the basic structure of their body politic. A liberal democratic conception of political legitimacy must reflect the fact that in a liberal democracy citizens share as free and equal individuals in the final political authority over the design of the basic social structure through which their body politic is constituted. Legitimate political authority, for liberal democratic citizens, is always the collective authority of citizens as free and equal individuals. The question, then, is what must be added to Rawls’s generic conception of legitimacy for wellordered decent peoples to generate from it such a conception appropriate to liberal democratic peoples. Here Rawls turns to his ideal of reciprocity in justification as the fundamental moral norm governing the relations of individual citizens as free equals. And this leads him to his liberal principle of legitimacy. But, as we’ve seen, that road terminates in the dead end of reasonable disagreement. What is needed, then, is an alternative understanding of the respect democratic citizens owe one another in political life, an understanding not rendered irrelevant by conditions of deep and wide reasonable disagreement. I propose an alternative democratic principle of legitimacy rooted in a commitment to a reciprocity of interests between citizens as free equals. On this alternative, a liberal democracy may legitimately coerce its members only when it does so pursuant to and in accord with a constitution the design and long term effect of which is to underwrite a system of reciprocally advantageous cooperation among citizens as free and equal individuals, individuals whose claims on the body politic are unmediated by any antecedent group-based membership (so that race, ethnicity, gender, religion, etc., in no way condition one’s claim as a citizen to an institutionalized mutually advantageous system of social cooperation). Such a constitution would of course have to allow for expressions of dissent and the like. But it would also have to allow for the mobilization of political parties, for universal adult suffrage and access to office, for regular periodic elections aimed at keeping the political process competitive and open, and much


else. No constitution lacking these features could plausibly be viewed as intended and likely to secure reciprocity of interests between citizens as free and equal individuals over the long term. But what other evidence would show a particular a liberal democratic order to be an instantiation of reciprocity of interest over the long term between citizens as free and equal individuals? The most compelling evidence would be a progressively expanding domain of civil rights and entitlements afforded to all citizens simply as citizens. Indeed, a liberal democracy for which no such evidence may be tendered is one about whose legitimacy we ought to have serious doubts. Certainly a democracy that over time generated a nonreciprocal distribution of most rights and entitlements, advancing the interests of some while setting back the interests of others, would be presumptively illegitimate. In any case, what legitimacy requires of a democracy is not that its constitution in its essentials pass some test of reciprocity in judgment and thereby qualify as immune to reasonable dissent. What legitimacy requires is rather that the constitution demonstrably and reliably over time secure a reciprocity of interests between citizens as free equals. Here the relevant baseline or benchmark is citizens in their status, and with their fundamental interests, as free equals within a common body politic. A democratic constitution that institutionalizes that status through a scheme of political participation rights and underwrites legislative processes through which citizens, qua citizens, realize reciprocity of interests is sufficiently just from the democratic perspective so as to support the conclusion that coercive state action pursuant to it is presumptively or almost always legitimate.60 Reciprocity of interests or advantage here is best measured in terms of the individual rights or entitlements citizens enjoy by virtue of their citizenship status alone. This is not because citizens cannot be advantaged in other ways. It is rather because rights or entitlements attached to citizenship status are the most secure and compelling evidence of reciprocity of interests between citizens as such. These individual rights or

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entitlements have normative priority (for the most part; even rights have limits in extremis) over other benefits citizens might enjoy in the form of enhanced national security (a corporate good citizens enjoy by virtue of membership in the body politic), improved GDP (an aggregate good citizens enjoy by virtue of their membership in the population over which that good is aggregated), or national parks and museums and the like (a collective or common good citizens enjoy by virtue of their sharing with all other citizens the same claim to it). We might say that this is what a democracy is for. A democratic body politic is a system of cooperation between free equals aimed at securing a reciprocity of interests through a system of civil or universal rights. That the United States is a legitimate democratic order, at least since the 19th Amendment in 1920, is now a matter easy enough to determine. With the New Deal the United States committed itself legislatively, and arguably constitutionally (though not in the written Constitution), to a basic social minimum as a matter of individual right. This is evidence in favor of the legitimacy of the American democratic constitutional order. At some point in the first half of the 20th century the United States committed itself legislatively, and again arguably constitutionally (again, though, not in the written Constitution) to public education for all. This right or entitlement is now being realized finally for persons with disabilities. This is further evidence in favor of the legitimacy of the American democratic constitutional order. Similar points may be made about the right to form unions, engage in collective bargaining, gain access to voter registration, and much else. The connection between a democratic constitution and a system of universal civil rights has been affirmed and deepened repeatedly, both legislatively and judicially, over the last 50 years. If in 25 years the United States commits itself legislatively or perhaps constitutionally (again, it need not be in the written Constitution to be a constitutional commitment) to an individual right to basic health care, then this too would count as yet further evidence in favor of the legitimacy of the American democratic constitutional order. All things


considered, notwithstanding reasonable disagreements over whether the current constitutional order is fully faithful to the ideal of citizens as free equals, or to the ideal of democracy itself, the evidence is overwhelming that the current constitutional order has generated for almost a century now a mutually advantageous system of individual rights and entitlements tied to citizenship status alone. Of course, there may be reasonable disagreement here. The evidence is no doubt complex. But, importantly, the fact of such disagreement, should any there be, is in itself irrelevant to the question of the legitimacy of the democratic order in the United States on the democratic conception of legitimacy I am suggesting here. That, of course, is not the case on Rawls’s liberal principle. Of course, if reasonable disagreements over the legitimacy of a particular constitutional order are, even on the democratic conception of legitimacy, widespread, persistent, and deeply divisive, then social stability may prove difficult to sustain. But social instability, whether rooted in reasonable disagreement or not, does not entail political illegitimacy. Nor, for that matter, is social stability legitimacy, as Rawls himself notes.61 It should not surprise that many state actions illegitimate on Rawls’s liberal principle of legitimacy will prove also illegitimate on this democratic alternative. After all, both principles have at their root a commitment to reciprocity between citizens taken as free and equal members of a single body politic. Nor should it surprise that for some state actions the two principles will yield different judgments regarding legitimacy. Consider the issue of proportional representation, a matter concerning constitutional essentials. On the strong reading of Rawls’s liberal principle of legitimacy, it’s hard to see how this issue could be settled in any way sufficient to underwrite legitimacy. The matter is just too highly contested. On the weak reading, of course, that it is so contested is beside the point. Surely proportional representation could be reasonably affirmed. Thus, there is no real legitimacy hurdle to clear. It’s enough that those who favor and are able to bring about proportional representation can say to

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themselves, correctly, that others could reasonably affirm the same. The alternative democratic principle of legitimacy proposed here is neither as ruthless as the strong reading of liberal legitimacy nor as toothless as the weak reading. On the democratic alternative, the question to be asked is whether proportional representation is necessary to insure, or at least consistent with, a constitutional order faithful to reciprocity of interests. That is a question that can be answered, at least tentatively, before its adoption by looking to other regimes where it is the norm and by examining various theoretical models of voting behavior and the like. And it is a question that can be answered after its adoption by simply looking to the legislative track record with respect to civil rights and entitlements. Democratic legitimacy is a matter determined by an historically and empirically informed review of the legislative output of a democracy in terms of civil rights and entitlements over time. If proportional representation turns out to be necessary to reciprocity of interests, then it is required by legitimacy. If it is consistent with but not necessary to reciprocity of interests, then it is consistent with legitimacy, permissible but not required. If it is incompatible, then a democratic regime that incorporates it is to that extent illegitimate. My own guess here is that it is consistent with but not necessary to reciprocity of interests. It is thus permissible but not required from the point of view of legitimacy. Of course, there may be yet still compelling reasons of justice to think it either necessary or desired. It may more fully or reliably institutionalize and deliver, say, the Rawlsian egalitarian conception of justice thought to best express the demands of distributive justice in a liberal democracy. Or it may more perfectly express the ideal of equal political participation. But if these are the reasons for advocating proportional representation, then the struggle for it is part of the struggle for justice, not part of a struggle against illegitimacy. And that is an important distinction. It may be objected here, however, that the fundamental interests of citizens as free and equal individual co-authors of


their common body politic is not itself a matter of fact. It is a moral matter over which citizens are themselves likely to disagree reasonably and which must be settled before a constitutional order may be measured against the standard of reciprocity of interests. It is true, of course, that the fundamental interests of citizens are to be specified in terms of a moral conception of democratic citizens as free and equal. But Rawls’s conception here is serviceable. Citizens are free and equal by virtue of their possessing to some requisite minimum degree the two basic moral powers. Their fundamental interests as democratic citizens, then, lie in the social conditions necessary or conducive to the development and exercise of those two powers. These interests, however, must be understood to arise out of and range over more than the power or capacity for judgment. To be sure, citizens have fundamental interests tied to their power or capacity for individual judgment regarding both the good and the right. But their fundamental interests as citizens include a good deal more. Citizens have fundamental interests in health, education, meaningful and socially affirmed work, self-expression in social life, civic friendship, loving and being loved, emancipation from false necessities regarding the social order of which they are one and all co-authors, and in much else. Citizens have fundamental interests in more than just those social conditions necessary to the development and exercise of their complex capacities for judgment alone. A legitimate democratic constitutional order should secure over time reciprocity of those interests generally, and not answer only to citizens’ interest in expressing and having their judgments respected. There is no better evidence that it does so than an expansive pattern of legislation yielding civil rights and entitlements. Fully sketching an alternative democratic conception of legitimacy is a task that lies beyond the scope of this paper. Much remains to be done. For example, I have not even addressed the question of what adopting such an alternative conception of legitimacy would mean for other aspects of Rawls’s view. It seems clear enough that it would force some changes. For example, an ideal of public reason expressing

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the demands of reciprocity in interests, rather than reciprocity in justification, is likely to differ in important respects. But these are matters that must wait for another day. I hope here to have at least set out in broad outline both the reasons for looking for an alternative democratic conception of legitimacy and some of the main elements likely to figure in any such account appealing to those with Rawlsian sympathies.

NOTES 1

John Rawls, A Theory of Justice, Harvard University Press, 1971, revised edition, 1996, p. 3. Hereafter TJ. All citations are to the 1996 revised edition. 2 John Rawls, Political Liberalism, Columbia University Press, 1993 (and 1996 paperback), p. 24, note 27, and elsewhere. Hereafter PL. All citations are to the 1996 paperback edition. 3 John Rawls, The Law of Peoples, Harvard University Press, 1999. Hereafter LoP. 4 For a useful analysis of various accounts of legitimacy as a moral property enjoyed by states and the relationship between legitimacy and other moral properties of states such as justice, see A.J. Simmons, ‘‘Justification and Legitimacy,’’ Ethics, v. 109, n. 4, pp. 739 771, 1999; and Allen Buchanan, ‘‘Political Legitimacy and Democracy,’’ Ethics, v. 112, n. 4, pp. 689 719, 2004. See also, Richard Flathman, ‘‘Legitimacy,’’ A Companion to Contemporary Political Philosophy, Robert Goodin and Philip Pettit, eds., Blackwell Publishers, 1993; and Alan Cromartie, ‘‘Legitimacy,’’ Political Concepts, Manchester University Press, Richard Bellamy and Andrew Mason, eds., 2003. 5 Thus Rawls says of legitimacy and justice: ‘‘A little reflections shows they are not the same. A legitimate king or queen may rule by just and effective government, but then they may not; and certainly not necessarily justly even though legitimately. [... ].A significant aspect of the idea of legitimacy is that it allows a certain leeway in how well sovereigns may rule and how far they may be tolerated. The same holds under a democratic regime. [... ] Thus, legitimacy is a weaker idea than justice and imposes weaker constraints on what can be done. [... T]hough there is of course an essential connection with justice.’’PL, pp. 427 428. 6 H.L.A. Hart would appear to suggest such a proceduralist-pedigree view in The Concept of Law, Oxford University Press, 1997. 7 PL, p. 429.

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Rawls does discuss the obligations of citizens to obey the law, first in terms of ‘fair play’ considerations and then in terms of a ‘natural duty of justice,’ as well as issues of civil disobedience. See TJ, Chapter 6. But he does not discuss the legitimacy of coercive state action. The term ‘‘legitimacy’’ does not appear in the index. 9 Comprehensive doctrines range over the full domain of value across the totality of the human condition. They thus extend well beyond, but typically also include, the narrower idea of conceptions of the good as that idea applies to individuals. On the nature of comprehensive doctrines, see PL, p. 13. 10 For one of Rawls’s later discussions of the fact of reasonable disagreement, see Justice as Fairness: A Restatement (hereafter JF), Harvard University Press, 2001, pp. 33 36. Rawls refers typically to ‘‘the fact of reasonable pluralism.’’ But I follow Charles Larmore’s suggestion that the fact to which Rawls refers is better named ‘‘the fact of reasonable disagreement.’’ See Charles Larmore, ‘‘Pluralism and Reasonable Disagreement.’’ Social Philosophy and Policy, v. 11, pp. 61 85, 1994. 11 See PL, pp. 64 65, and 144. 12 See, e.g., PL, pp. 3 4, and 136 137. 13 For a clear statement of Rawls’s own sense of this transition, see Samuel Freeman’s ‘‘Introduction’’ to the Cambridge Companion to Rawls, Cambridge University Press, 2003. See also Burton Dreben’s, ‘‘On Rawls and Political Liberalism,’’ in that same volume. 14 Well, perhaps not literally complete, since Rawls presents his LoP as the ideal of international relations appropriate to a liberal democratic body politic committed to political liberalism and to, or to aspiring to, justice as fairness. This, he says, completes his normative political theory of liberal democracy. 15 Among others: public reason, overlapping consensus, political constructivism, and freestanding justification. 16 PL, p. 137. See also JF, pp. 40 41. 17 Reciprocity, in turn, Rawls regards as rooted in the moral capacity to be reasonable, to seek and honor principles of conduct others could reasonably accept or could not reasonably reject. Rawls makes this explicit at various points. See, e.g., PL, p. xlvi. While Rawls does not say as much, the moral capacity to be reasonable is, ultimately, the capacity to live as a person or practical moral agent in a world within which there are, and in full recognition and respect of, other persons or practical moral agents. This is what Rawls presumably means when he says that the reasonable is public in a way that the rational is not. 18 See, PL, p. 50. See also JF, p. 77. 19 See, e.g., PL, p. xlvi. 20 PL, p. 429. 21 See, e.g., PL, pp. 36, 144.

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See, e.g., PL, pp. 6, 164 168. See, PL, pp. 228 230 and 338 339. 24 See, PL, pp. 190 194. 25 Indeed, they might disagree even over which of several generically liberal conceptions of justice is best. From PL on in his writing, Rawls maintains that it is only a generic liberalism that can meet the demands of reciprocity between citizens as free equals. For just one statement of the claim that reasonable disagreement extends to political values, see JF, p. 36. For a good overview of Rawls’s ideal of public reason see Charles Larmore’s ‘‘Public Reason,’’ in The Cambridge Companion to Rawls. For more critical discussion, see my ‘‘Rawls’s Wide View of Public Reason: Not Wide Enough,’’ Res Publica v. 6, pp. 4972, 2000. 26 See, e.g., JF, pp. 134 136. See also, TJ, pp. xiv xvi. 27 For discussion see JF, pp. 145 148. 28 See, PL, pp. 227 230. 29 On the relationship between legitimacy and public reason as a norm governing citizens when they make political judgments and vote on matters of basic justice and constitutional essentials, see PL, pp. 216 220. On the relationship between legitimacy and public reason as a norm governing the Supreme Court in its exercise of judicial review, see PL, pp. 231 240. The close connection between liberal legitimacy and public reason and reciprocity is, of course, a matter central to Rawls’s later work, and thus permeates PL and is also discussed at some length in JF. See, e.g., JF, pp. 89 94. 30 The burdens of judgment include the facts that no two persons ever have the same life experiences, that everyone’s reasoning is shaped by their life experience, that many abstract concepts admit of many defensible conceptions, that the empirical evidence relevant to assessing the truth of many claims is complex and difficult to evaluate, and that the balance or order of values relevant to many claims is likewise complex and difficult to establish. For a clear statement by Rawls of the burdens of judgment and their relationship to reasonable disagreement, see PL, pp. 54 58. 31 Simple disagreements are, in contrast to reasonable disagreements, rooted in some identifiable, reproachable and correctable failure of rationality or reasonableness, such as a failure of inference or logic, or a failure to avoid bias or prejudice, in one’s reasoning. 32 Of course, simple disagreements are to be expected and expected to persist as a permanent feature of a free and open society as well. But we need not invoke the burdens of judgment to explain them. While simple disagreements are no doubt a permanent feature of the human condition (so long as we remain fallible), they raise no special problems with respect to reciprocity or legitimacy for Rawls, since their existence is due to the failure by at least one party to deliberate in a reasoned way and to exer23


cise sound judgment. It bears mentioning here that the distinction between simple and reasonable disagreements is not a purely epistemic distinction, though it has epistemic dimensions. In the end, to identify a disagreement as reasonable is to express a certain moral stance toward another one regards as mistaken, perhaps deeply mistaken, in his or her beliefs or commitments. 33 And most arguments in political life are nondeductive. 34 Suppose Bob and Sally disagree over what conclusion follows inductively from a particular set of premises. Suppose further that Bob endorses stricter standards of inductive inference and Sally endorses looser standards. Bob and Sally will disagree, then, not just over the substantive conclusion they think follows inductively from a particular set of premises, they’ll disagree also over the nature of that disagreement. Indeed, they may disagree, even disagree reasonably if their disagreement over standards of inductive inference is reasonable, over whether their substantive disagreement is itself simple or reasonable. 35 And, it is not enough, of course, merely to insist dogmatically on some great divide between science and morality, religion and philosophy. 36 This sort of view would be welcomed by MacIntyre, Hauerwas and other critics of modernity. For a useful discussion of the anti-modern stance of such neotraditionalist religious thinkers, see Jeffrey Stout’s recent Democracy and Tradition, Princeton University Press, 2004, Chapter 5. 37 There are many persons disinclined to affirm the fact of reasonable pluralism in anything like the form Rawls casts it or to accommodate themselves to it in their thinking about a just social order. Rawls regards his disagreement with such persons as simple rather than reasonable. On his view, those who reject the fact of reasonable pluralism or refuse to accommodate themselves to it in political life do so unreasonably. Accordingly, it is no affront to the ideal of reciprocity in justification simply to ignore their judgments. Of course, if the fact of reasonable disagreement were itself something over which persons may reasonably disagree, then Rawls, being committed to reciprocity in justification, would have to avoid any necessary appeal to the fact of reasonable disagreement in his public justification of liberal principles of justice. 38 I am grateful for this point to an anonymous reviewer for this journal. 39 For a useful discussion of the difficulty Rawls faces in giving a noncircular account of why those who reject generic liberalism are unreasonable in so doing, see Marilyn Friedman, ‘‘John Rawls and the Political Coercion of Unreasonable People.’’ in The Idea of a Political Liberalism: Essays on Rawls, eds., V. Davion and C. Wolf, Rowman and Littlefield, 2000. 40 In response to a question from the audience at the conference at Santa Clara University celebrating the 25th anniversary of TJ’s publication,

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Rawls explicitly stated that he regarded libertarianism as an unreasonable doctrine because it did not take the basic social structure as the subject of justice. For Rawls’s statement of this defect of libertarianism, see PL, pp. 262 265, and JF, p. 16. For contrary remarks by Rawls the tone at least of which suggests that the libertarian liberal disagreement is a reasonable disagreement, see JF, p. 83. For an account and defense of Rawls’s position that libertarianism is simply an unreasonable doctrine, see Samuel Freeman, ‘‘Illiberal Libertarians: Why Libertarianism is Not a Liberal View.’’ Philosophy and Public Affairs, v. 30, n. 2, pp. 105 151, 2001. 41 The claim comes to this: Marxists, communitarians, libertarians and similar dissenters from generic liberalism are either unreasonable in their dissent or really closet generic liberals dissenting from only this or that determinate conception of generic liberal justice. This is the sort of ‘‘reconciliationist’’ view animating the work of James Sterba and Will Kymlicka. It’s the ‘‘in the end and after a full analysis, we’re all (or should be) good liberals after all’’ view. I find this ‘‘reconciliationist’’ orientation or commitment problematic. It seems to me, to cite just one example, that the disagreements between Nozick and Rawls or Rawls and G.A. Cohen are just the sort of disagreements we should regard as reasonable and unlikely to dissipate upon careful examination. These are persons of high intelligence and manifest good will and their disagreements ultimately derive from the great difficulty of saying in relatively concrete and determinate form and in light of often ambiguous empirical facts what we mean when we commit ourselves to the freedom and equality of citizens vis a vis their social world. 42 For an introduction to the range of reasonable disagreements that persist with respect to determinate democratic orders, and indeed democracy itself, see Robert Dahl’s Democracy and Its Critics, Yale University Press, 1989, especially Part IV. 43 It’s perhaps worth noting here that in the context of original position reasoning there are no determinate transition costs to appeal to since there is no antecedently given democratic order. We simply ask in abstracto which democratic institutional design is such that no reasonable citizen could reasonably reject it. 44 The same point might be made about more recent arguments for deliberative democracy. Whether democratic deliberation serves to improve the judgment of individual voters is an empirical matter over which social scientists and others presently reasonably disagree. For a discussion of these matters, see John O’Neill, ‘‘The Rhetoric of Deliberation: Some Problems in Kantian Theories of Deliberative Democracy,’’ Res Publica, v.8, n. 3, pp. 249 268, 2002. 45 Rawls considers and allows for the possibility of plural voting. See TJ, pp. 204 205.

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The ambiguity I have in mind and explicate in the text appears in statements of the liberal principle of legitimacy such as the following: ‘‘... when constitutional essentials and questions of basic justice are at stake, the exercise of coercive political power, the power of free and equal citizens as a collective body, is to be justifiable to all in terms of their free public reason.’’ JF, p. 141. For similar statements, see also, JF, pp. 41, 202, and PL, pp. 137, 217. In these statements it is unclear whether Rawls means to require only that citizens could reasonably affirm the relevant positions or more strongly that they could not reasonably reject them. This ambiguity appears also in ‘‘The Idea of Public Reason Revisited,’’ reprinted in both LoP and the Collected Papers, Samuel Freeman, ed., Harvard University Press, 1999; see, e.g., the statement at p. 578 in the Collected Papers. Indeed, the ambiguity appears as early as Rawls’s 1971 essay ‘‘Justice as Reciprocity.’’ See, e.g., Collected Papers, p. 208.The ambiguity is underscored by Rawls’s approving references to Scanlon’s view, which explicitly adopts the more demanding could not reasonably reject formulation of reciprocity. See, e.g., PL, p. 49, note 2, and p. 124. A less telling but still relevant reference to Scanlon’s view may be found also in JF, p. 7, note 6. Those inclined to read Rawls as adopting only the weaker could reasonably affirm formulation must explain away these approving references to Scanlon’s view. Yet, it must be acknowledged that Rawls uses the could reasonably affirm formulation very often. See, e.g., PL, 137, 216. As I suggest in the text of this essay, the textual ambiguity in Rawls’s work cannot be fully resolved by appeal to the structure of his arguments and overall position. For here too we find ambiguity with respect to the two alternative formulations of reciprocity. For example, when Rawls discusses public reason, it often unclear which of the two formulations of reciprocity he is working from. Sometimes Rawls speaks as if the ideal of public reason requires citizens in political activity to bracket or set aside commitments arrived at solely from reasons others could reasonably reject; sometimes he speaks as if it requires them only to assure themselves that others could reasonably affirm their reasons for their political commitments. Commentators are accordingly themselves divided over Rawls’s meaning. Rex Martin, for example, has insisted in several essays on the weaker reading as the correct reading. See, for example, his ‘‘Rawls’s New Theory of Justice,’’ Chicago-Kent Law Review, v. 69, pp. 737 762, 1994. Jeffrey Stout has, along with most others I think, adopted the stronger reading. See, e.g., his Democracy and Tradition, Princeton University Press, 2004, p. 10. 47 See H.L.A. Hart, The Concept of Law, 2nd edn, Oxford University Press, 1997. 48 See Philip Soper, A Theory of Law, Harvard University Press, 1984. 49 Rawls cites Soper favorably in LoP, pp. 66, 67, and 72, and in PL, p. 109. 50 JF, p. 186.

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See, e.g., JF, p. 27; PL, p. 22f; and TJ, pp. 16 17. This commitment to justification from common ground underwrites Rawls’s commitment to drawing on only weak assumptions regarding reasonableness in the original position argument. 52 Since the reason of citizens qua citizens just is the reason of a liberal democratic body politic as a corporate artificial moral agent, the latter may be regarded as acting autonomously (even when citizens reasonably disagree in their political judgments) provided citizens honor the ideal of reciprocity and the liberal principle of legitimacy and resolve their disagreements through constitutional democratic procedures themselves faithful to the ideal of reciprocity. For discussion, see my ‘‘Rawls’s Wide View of Public Reason: Not Wide Enough,’’ supra. 53 See LoP, especially Part II. For a sympathetic reconstruction of LoP, see my ‘‘Rawls on International Justice: A Defense, Political Theory, v. 32, 291 319, 2004. 54 See LoP, pp. 63 66. 55 See Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, 2nd edn, Princeton University Press, 1996, esp. Chs. 1 3. 56 See The Concept of Law, pp. 193 200. 57 To be sure, Hart does not argue that the minimum natural law content of any legal system likely to endure among human beings must necessarily be extended to all human beings within the body politic. On his view, it need only be extended to enough of them to make the legal system viable. Thus, for Hart, a slave-holding legal system may be a genuine legal system able to generate genuine legal obligations (though perhaps not moral obligations). See The Concept of Law, p. 200. Here it is important to keep in mind, before rejecting Hart’s view, that Hart did not set out to account for a moral obligation to obey for the law; he rather set out to account for the normative force of legal obligations as legal obligations. In any case, Rawls does not reject Hart’s view of law or legal obligation as such. Instead he argues that political or legal authority is not legitimate in the absence of ‘‘bona fide moral duties’’ to obey the law. See LoP, p. 66, note 5. And these duties cannot exist, Rawls and Soper agree, if what Hart called the ‘‘minimum natural law content’’ of any legal system is not extended to all subject to it. 58 Lon Fuller makes a similar point about the rule of law and purposeful social interaction in The Morality of Law, Yale University Press, 1964. 59 Rawls’s too-often overlooked references to Soper in LoP, p. 66, 67 and 72, and in PL, p. 109, bear mention here. 60 In Chapter 7 of his A System of Rights, Oxford University Press, 1997, Rex Martin argues for a view similar in its emphasis on civil rights legislation reciprocally advancing the interests of all to the view I am suggesting here. 61 Nor is instability illegitimacy.


Department of Philosophy University of Tennessee 801 McClung Tower Knoxville, TN, 37996 USA E-mail: [email protected]