On public assertion

Since 2006 or so, I have thought that the idea of a knowledge as constitutive norm of assertion is a mistake, and have at various points offered various reasons for saying so. Some depend on my views about the nature of ‘truth’, on ‘belief’ and ‘intuition’, philosophical pedagogy, and other things. The upshot, I guess, is that Moore’s paradox — “P, but I don’t know that P” — is indeed permissible to assert when the contents of P are apt without being truth-apt (e.g., indefinite predicates and other forms of factually defective discourse). Since critiques of the knowledge norm have been explored capably by others, there is no point in my continuing to grind that axe here.

Recently, though, part of me has worried that our current epistemic crisis in politics is a real-world consequence of denying that knowledge is constitutive of assertion. It would be an awful shame if any of these points somehow blessed the hearts of populist liars and career-long bullshitters. A similar worry need not extend to the sphere of politics, though, as some have wondered whether published works in philosophy should obey something like a knowledge or sincere belief norm.

So, it might help to make a crucial distinction. Indeed, I do think knowledge constitutes something: namely, it constitutes the context of *public assertion* — i.e., following Arendt, the context where people are treated as provisional equals, where interlocutors have presumptive reasons to take each other seriously as givers and takers of reasons (e.g., during peer disagreement). That gives rise to our deep conviction that Moore’s paradox is intolerable in Orwellian spaces.

The diagnosis, then, isn’t that our epistemic crisis can’t be properly seen as coming out of a disagreement about a rarefied paradox. It comes out of the fact that public discourse has collapsed, and there are no institutions that incentivize us to look at each other as if we share a common cause. And that seems not only far more plausible than a worry about philosophy of language, it connects much directly and obviously with the facts about material class inequalities which are so obviously central to our current slide into fascism.

Potted summary: Hannah Arendt, The Human Condition

Now seems to be a good time to write about Hannah Arendt on the public-private distinction, as far as she puts it in ‘The Human Condition‘ (1958, 2e., University of Chicago Press). These are meant as reading notes, and meant to be faithful to the aims of the text. That said, I include a few comments in parentheses and italics where I think a little color commentary might help.

Legal arborism

One of the blawgers at Double Aspect, Leonid Sirota, asks if “living tree” constitutional theories can explain the grounds and consequences of their views in the context of jurisprudence in Canada. (Sirota and his co-bloggers seem to occupy an interesting intellectual space, being McGill educated, working abroad, but whose philosophical jurisprudence seems mainly influenced by the American tradition.) Laid against that background, he asks a bevy of questions, and invites some answers. I’ll give it a shot.

(Style note: because I’m tired of writing “living tree doctrine advocates” and its long-winded cognates, I’ll call this position legal arborism. And, full disclosure: my sense of the views of legal arborism in Canada are deeply influenced by a course I audited with Wil Waluchow at McMaster, and so are tilted in favor of his own living tree constitutionalism. His kindness, patience, and scholarly acumen have influenced me a great deal.)

To give you an idea of my own perspective, allow me to say a few words about my intellectual background. My research focus is on informal promulgation, or the publicity of law (understood as a phenomenon deserving of explanation by collective social epistemology). On the one hand, my views on the written/unwritten distinction, at least at the level of discernment or court interpretation, are something of a mixed bag; I don’t know if I would consider myself a legal arborist, if only because I am wary of having my intellectual life bewitched by the power of a metaphor. So, because I am a philosophical eccentric in this and other ways, I do not think I am a thoroughly disciplined advocate of the “living tree” doctrine, and my answers will likely be inadequate. That said, I see an awful lot of merit in the arborist’s point of view of common-law — so much so that I would be far more sympathetic to the legal arborist’s general conception of law than the depiction of law provided by originalists. So, I’m with the Ents.

“1) Do you think that the linguistic meaning of the constitutional text changes over time after its entrenchment?”

This is a complex question. The question presumes that there is a distinction between linguistic and application meaning, or sentence vs. use meaning — usually captured by the distinction between semantics and pragmatics. But, as a commenter on that thread notes, many of us would dispute the application/linguistic meaning distinction, insofar as it is supposed to help us sort between two piles of content ascriptions that lawyers and judges would care about (i.e., concerning different kinds of legal effects, the constructive and the merely interpretive). And by ‘us’, I do not just mean legal arborists. I mean, ‘us’, as in virtually everyone who works in philosophy of language who was educated in the last half-century. Indeed, in my view, the best originalists don’t even follow through with the pragmatics/semantics distinction in their considered accounts. So, e.g., I’ve noted before that — aspirations to the contrary — Lawrence Solum’s “semantic” originalism is nothing of the kind, since it asks us to enrich communicative content (meaning, strict entailments) with cooperative implicatures when such are required by the method of triangulation. Solum calls it a semantic theory, but he is mis-stating (indeed, understating!) the powers of the actual theory that he advocates.

But this is easily fixed; a better presentation of the originalist argument is possible. Such an argument would either have to admit the pointlessness of appeals to textual purity, and confess that it invites relatively obvious widenings of the scope of the “semantic” theory (to include near-side pragmatics); or, it would have to advocate a Copernican revolution in semantic theory, forcing it to include extra-semantic elements; or, it would have to articulate the aims and motives behind the triangulationist method in extra-semantic terms, e.g., in terms of the political value of publicity. (FWIW, I think that in the long run the third option is the smarter move, though it would take an essay to state why.)

“2) Do you think that governing bodies should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?”

I think, to this question, the answer is an incorrigible ‘yes’, provided that we identify the right linguistic context that is responsible for the change in content. So, notice that there’s a difference between communicative content that changes because of a corresponding change in background conditions which affect the interpretation of statute or caselaw (i.e., related to global changes in perspective and fact), and a change in content that is merely determined by the intentions of the Court with respect to the proper aims of statute or caselaw.

Suppose, for the sake of argument, that the latter is faulty on broadly conservative grounds — because “activist judges”, etc, etc. Fine. It is nevertheless true to say that in the former context, an apparent change in linguistic meaning is both legitimate and hard to deny, even when we go about mere interpretation of what is said in the text. So, e.g., to take Waluchow’s example — in the infamous Persons case, the meaning of “person” is radically different in 1945 as opposed to 1845 because many substantial background assumptions have changed (e.g., about property ownership, theories of sexual psychology, etc.). Our global background conditions make it absurd to read “persons” as meaning “men” alone and pretend to be doing it in good faith. So, it is not just that the Privy Council found the caselaw disagreeable or unjust according to their personal moral convictions. It is that there has been a change in stable meaning, owing a change in the background of interpretation.

The best version of the originalist intuition rests on the idea that true expressions are stable, or built to last. So, there is at least one important difference between “2+2=4” and “The duck-rabbit illusion depicts a rabbit”: you can count on being able to get away with asserting (and assenting to) ‘two and two make four’ tomorrow, but you can’t count on being able to even assert or assent to “The duck-rabbit illusion depicts a rabbit” in the next breath, since a Gestalt shift can take it all away. The presumption of future ‘stickiness’, the idea that legal rules are going to be a going concern, is a truth-maker in law. Which is to say that legal truth implies stability, at both the level of meaning and the level of politics, and this stability across contexts helps to satisfy the need for presumptive guidance to private actors.

There are two kinds of things you have to say about the originalist’s attempt at assuring stability in this way. First, it must be noted, and emphasized, that cross-contextual meaning is itself deeply and richly dependent upon an array of assumptions or givens which give it content. This is true for both partial expressions and sentences. The very idea of a “quark” is unintelligible in the context of an epistemic community that lacks a rich set of judgments about the behavior of particle physics. The sentence, “I want to cut the sun” (John Searle’s example) is sufficiently strange as to be almost unintelligible, given that there are no feasible means (open to our current imagination) that would make that sentence true. Cross-contextual content depends on a network of beliefs, judgments, and capabilities, and any change in these implicit background conditions can lead to explicit changes in meaning. That just seems to be a fact about how meaning works. Significance wanders.

Second, where they get off track, at the level of politics, is the sense that the only factor which provides that stability is strict fidelity to fixed intentions of original speakers. But what they are actually seeking is equilibrium, and a sufficiently large change in context very well might demand a new equilibrium.

To see why the originalist approach to stability is misguided, let’s consider a parable. Suppose someone were to say: “I must build my home on solid ground.” That seems like a reasonable thing to say. Now suppose they encounter a man who has built a boat, and lives their life at sea. “That’s silly, you get knocked around a lot,” says the man who built their home on solid ground. Then a hurricane comes and washes the house away, while the boat (though battered) survives. Question: whose home was more stable? Answer: it depends on your context and background assumptions. The house on land was stable in one context, but the house on the sea was stable in another. With the predicted rise of the sea, the rule, ‘build your home on solid ground’, is not going to provide anything like the need for presumptive guidance to private actors.

Aquinas and the limelight (III)

This post is about Thomas Aquinas’s comprehensive legal and juridical theory, as it relates to constitutive charters and public reason. It is part of a series loosely based on my reading of Rawls’s The Idea of Public Reason [discussed here and here]. Aquinas’s legal theory is based on public-facing associative reasons, and ultimately I would like to explore the possibility that any account of legal publicity must be at least public-facing. But even if you don’t care about that stuff, the exercise in comparing and contrasting Aquinas and Rawls is worth doing for its own sake. So let’s get on with it.

For exegetical convenience, it would be instructive to talk about non-Rawlsian accounts of justice in terms that are broadly commensurate with the Rawlsian point of view, since Rawls is both more familiar and more perspicuous, and therefore easier to defend in good faith. So, for the sake of argument, I would like to imagine how a modern-day Thomist might think about justice if they set themselves to imitate Rawlsian ways of speaking, which means bringing his theological convictions to heel. I articulate a conception of Thomism that is based on notes from my reading of the first two volumes of the Summa Theologicae. Yet this conception only inspired by Aquinas, since his theological convictions are indefensible from a scientifically literate point of view, and therefore uninteresting. So, because my reading willfully departs from Aquinas’s own views, I will self-consciously invent an object of comparative analysis that is inspired by Aquinas, but which jettisons his metaphysical views. I refer to it this composite view as Nomism, advocated by the imaginary Nomas Baquinas, a bizarro fusion of myself and Thomas Aquinas. That does not make the exegesis immune to criticism, since if our man Baquinas strays too far from the real Aquinas, then the exercise will have been a waste of time. But I hope you’ll permit the indulgence.

Oh, and to be clear — not only I am not a Thomist, I am not even a Nomist. I, personally, am only trying to see how well that one instance of a comprehensive theories of justice, and public-facing associative reasons, might fare in accounting for legal publicity in appropriate contexts. That’s the (relatively nerdy) axe I have to grind. It is not, however, meant to be a strawperson. The Nomistic view has a set of disadvantages and advantages that distinguish it from the Rawlsian one. The point of contrasting them is to enlarge our cultural imagination, at a time when inter-civilizational justice is in high demand and mature justicial intellectual programmes are in short supply.

*

Everyone agrees that the idea of ‘justice as fairness’ does not capture the full scope of a theory of justice. And by ‘everyone’, I mean, everyone including Rawls, who stressed the point very early on in his Theory of Justice. But suppose we take insufficiency of scope as an essential defect in the idea of justice as fairness. Why might we prefer a theory that covers a wider range of issues?

Like all issues in conceptual analysis, our convictions about the acceptability of a characterization of a concept has got to do with the inferences worth caring about, as far as they bear on the usage of a term (embedded in sentences). One thing worth worrying about is that Rawls has gotten the wrong unit of analysis. Perhaps the proper unit of analysis for a theory of institutional justice — the ‘basic structure of society’ — is a civilization, considered as best advice for sovereign rule, and not merely the social, economic, and political apparatus of a Westphalian nation-state, as Rawls takes it in his Theory of Justice. In that case, a theory of justice should be compared to Rawls’s Law of Peoples. Call that the macroscopic objection. But we might also think that the development of moral agency is one of the basic institutions that we need to account for in a theory of justice, just in case we think that the self is at least partly a social construction. In that case, the constituency of a civilization is not found in citizens, but in the reasons and intentions that compel them to act in social contexts. In which case, the scope of analysis would be much larger than either the Law of Peoples or the Theory of Justice, extending to a theory of law, morality, and meta-ethics. That is the microscopic objection.

Why would anyone adopt a view of such a wide scope? What’s the point of being a hedgehog on steroids? Doesn’t a comprehensive account of this kind detract from the narrow focus of a theory of justice? (The reason ‘why not’ is, I suppose, obvious. I can’t help but comment that one might need to look no further for a reason to look for alternatives to comprehensive doctrines than by observing the prohibitive length of the Summa.)

Well, there are programmatic reasons to think that perhaps the wider view is best. For one thing, it looks as though comprehensive theories are more directly capable of handling wide reflective equilibrium as a means of justification. (Granted, this is a cheap shot — ‘direct’ does not necessarily mean ‘better’.) But for another thing, we might be convinced that justice is a living thing, like a seed, which is planted in one’s own convictions and capable of growing and flourishing to the point where it becomes a model of civil life. One does not understand the form of the nature of the tree without being able to understand where it came from, and how it can and must be nurtured to survive. On this view, the constitution of a thing can be found in its genealogical facts. To provide a political theory of justice that is structured around public reason, we would need to treat those diachronic questions as being of secondary concern. But if we think that the very idea of justice is inextricable from the flow of history, then the Rawlsian synchronic approach might strike us as wrongheaded.

Anyway, if we think these requirements of scope are well-motivated, then we could say that we are seeking a theory of justice based, not just on the ideal of justice as fairness, but on a broader ideal fit for larger social circumstances — that is, on justice as goodness, i.e., where goodness is rationally beneficial, useful, and pleasant. That is the Nomistic view, for whom the idea that justice is a disposition to do right by all. Considered in the context of contemporary theories of justice, this conviction is both unexpected and unexpectedly rewarding in its consequences. But considered as a restriction of law, it is potentially disquieting, if not totalitarian, constraint on personal conduct.

**

On my retelling, Rawls’s political theory has five notable features. (1) It uses a device of representation, the original position, which functions as a procedural effectuation of the values of freedom and equality among citizens. (2) Original citizens are presumed to be sincerely interested in securing a reasonable state of cooperation — that is their strategic orientation. The output of the original position is a hypothetical contract with certain rules: (3) concerning the ideal structure of government, and (4) the demands of institutional justice. (5) The demands of institutional justice will relate both to conceptions of both the rule of law and legal validity.

1. Device of representation. I would like to say that Baquinas’s device of representation is not the original position, but something more like the position from eternity. The thought-experiment looks like this. Suppose that you were the ultimate sovereign over a whole universe, and you wished to generate the greatest potential goodness for the people who will come to populate it. Suppose, though, that the life-situation that the citizens in your universe come to experience will be fully determined by your understanding of yourself. Imagine, in other words, that you are in the narcissistic position that Kant asks us to be in with his first formulation of the categorical imperative — that you ask whether the maxims of your intentions, when generalized, could become laws of nature. How should you think about yourself, if you were placed in the position of ultimate benefactor or master role model? Aquinas suggests that you should be rather nice to yourself — that is, you ought to have an absolutely loving intent, a love for your powers of creativity, and a love for constant activity and motion. If you, a perfect being, held yourself in any lower esteem than as a perfect being, then your universe would not be conducive of the good — the people within it would have no sense of reason, or would not appreciate what is useful, or would be in an unrelenting state of misery, without that Northern Star to aspire towards. In our terms, Baquinas argues that we should adopt an optimistic political attitude.
   
2. Strategic orientation to action. Since we are assuming that goodness is necessarily rational, we should want our citizens to exercise their agency through reason, and hence to govern themselves rationally as best they can. What counts as ‘best’, though, is already conditioned by the setup. First and foremost, Baquinas suggests that the most rational option is the one that encourages generally good consequences, and seeks to minimize bad consequences. And, second, direction towards the good demands the preservation of life, and the need to seek good according to reason. The upshot, throughout, is to act charitably. These are the ways that agents behaving in an optimistic mood will behave, and expect others to behave, insofar as they participate in the position from eternity through the possession of reason. However, we should also encourage a degree of stoicism, since excessive solicitude creates misery through hypervigilance.
3. Ideal government. Baquinas thinks ideal governments should be ordered as a patriarchy. The sovereign should do their best to prize the flourishing of the sublime arts, the sciences, and the trades — essentially, the apex vocations which make a life worth living, and which make the day-to-day survival of a community possible. In this sense, political economy and distributive justice are of first concern to an ideal government. The task of the upper classes is to come to a consensus on — and then to publicize — a plan for collective action that maintains and enforces service to the community and also the requirements of charity. The second tier of government involves the means of maintaining life and order — judicial and legislative systems, health care systems, and police and military. These offices should exist and function only to the extent that they produce a society where all people are free to pursue and attain excellence. And, in the third tier, the government should take care of enriching its citizens — it should be ordered in terms of municipal associations, a scholarly community, and a system of education, all geared towards making more virtuous people. These lower tiers of government should be directed towards the preservation of a just system of rule. Because the proprieties of government are patriarchical, the system is one of associative reason.
4. Institutional justice. There are two kinds of justice — distributive and commutative. In this scheme, distributive justice demands respect for dignity, i.e., the relative contribution of a person to the community. This is broken into two kinds — duties to the sovereign, and duties to the community as a whole. By ‘dignity’, Baquinas means deference to the apex vocations, and especially, the masters of the sublime arts. Respect for dignity is given expression in a criminal code with a handful of seven basic imperatives: respect and obey the sovereign, pay your taxes, don’t harm people, don’t steal and destroy the property of others, don’t break trust, take care of your own thoughts, and pay your debts. Meanwhile, commutative justice is directed towards a principle of reciprocity, which requires, e.g., a duty of reparations and the golden rule. In all of these contexts, private reason does not have much of a place.
   
5. Legal validity and rule of law. Bad rulers can exist under the following conditions: if they fail to act charitably, order themselves in a strict class system, do it prudentially, and with a system of laws based on dignity and reciprocity. Disobeying the orders issued by tyrants is not strictly speaking breaking the law, since human law is an expression of the right, and an attempt to do well by justice, and only legitimate to the extent that it protects us against imprudence and injustice. So, ultimate legal validity of law is found in the higher law. To be sure, in normal contexts, insurrection against the rulers is illegitimate, since all authorities are at least a little bit good. Still, citizens can determine for themselves if emergencies exist requiring lawful insurrection, since is law mainly about rules that fit normal conditions.

***

On the first point, we can notice that neither Rawls or Baquinas are foundationally liberal, since neither of them permit free choice in political mood or attitude. There is nothing in their respective devices of representation that encodes the ability for original participants to choose their attitude. That said, Rawls permits relatively wider latitude: for him, the only requirement is that we not be in what in the last post I called the ‘pessimistic’ political attitude, i.e., for whom it is presumed that we have neither collective solutions nor any means of knowing them. Meanwhile, Baquinas is decidedly less liberal, as he makes optimism mandatory.

Second, Baquinas endorses a teleological theory of the right. It is similar in some respects to consequentialism, since all just actions is to increase the stock of good and reduce the bad. It is not quite act-consequentialism, though, for two reasons — first, because at some points he suggests that the right and the good are intertwined, or mutually adjusting, in the sense that sometimes the right is derived from the good, and sometimes the good from the right. Second, because virtuous practical action is stoic, and so directed towards satisficing, not optimizing, reasoning. In contrast, Rawls’s theory of justice is based around contractualist ideals, not consequences. Hence, his device of representation is directed towards the formulation of policies adopted by original citizens, and is concocted for the sake of securing a society based on freedom and equality that they can own, and results in scheme of justice where the demand for the right of equal liberty is lexically ordered above consequentialist considerations related to distributive justice.

The strongest points of difference concern their approaches to ideal government and institutional justice, as far as these relate to public and private reason. For Rawls, all offices are potentially open to any member of the public. The open status of governmental offices issues more or less directly from Rawls’s commitment to public reason, or common reason for the commons, where all have free and equal opportunity to participate. For Baquinas, the point of government is paternalistic, with stations at the top devoted to the masters of right and good. Their form of reasoning is public-facing, since their reasons are meant to bring order our public institutions, and expressly need to be promuglated. But this view of reason is nevertheless a form of associative reason, since it is not conducted by the commons or in common view. The sciences, trades, and sublime arts are not offices open to all.

What are their attitudes towards private reason? In the previous post, I noted that Rawls asserts there is no such thing. But he was mistaken. So, a stronger version of Rawlsian politics would argue that private reason has no justificatory role in developing a democratic constitution, even though it is vital to our understanding of liberty. Meanwhile, though Baquinas believes that both free choice and liberty of conscience are necessary presuppositions in moral inquiry, this freedom does not have a central place in his political theory, since the liberty that is implied is not reflected in either natural right or in ideal government. Further, Baquinas suggests that private reason ought to be tolerated, but only as a matter of prudence, since a government that pokes too much into the free conscience is one that is doing work inefficiently.

Legal validity and rule of law. Also for Rawls, while there is a wide range of reasonable disagreement among subjects, some overlapping consensus can still be found over the right and the good, and which will direct government action at any particular moment. Citizens have a duty to civil obedience that fits broadly into this conception. Rawls referred to his position as ‘dualism’, which is a fascinatingly opaque descriptor. I am not sure a normative ‘dualism’ is fully consistent with his considered opinions, however, since the ordinary law is subordinate to the higher law. In contrast, for Baquinas, the only overlapping consensus we need should be found in the upper classes — the technocrats who are looking out for the public good. The job of subjects is to obey for the right reasons. If, however, subjects found themselves in agreement that the vanguard is a form of tyranny, then the right to rule would shift accordingly. That reflects the Nomistic natural law, where definite moral duties conclusively override the dictates of the rulers, and the dictates of the rulers derive their authority from the moral law. Which is all just to say that, on this point, there is may not be a lot of blue sky between Rawls and Baquinas.

A critique of public reason (II)

In the previous post I discussed the idea of public reason. In this one I offer a few modest rebukes. Though critical in aim, it is in the same political tradition, a sympathetic attempt to curate conditions for the flourishing of democracy. The post has three parts: first I say why public reason seems on the ropes to us today; and second, a reminder that since public reason was inclusive, not fanatical, it can help to meet the challenges of anomic life in our century. Third, I offer three notes on the relation between public reason and publicity. I suggest that, though Rawls can deal with these three complaints when taken as a corporate whole, the three points together leave a trail of breadcrumbs that point to a compelling objection to his conception of political justice.

*

Contemporary democratic debate is sharply polarized, and these divisions can be explained in a ‘whiz-bang’ vernacular. Mainstream political discourse is held in thrall by punchy defects — junk values, hot takes, echo chambers, alternative facts, fake news.

A diagnosis of our bimodal status is hard to avoid and easy to come by. People of conscience have both the means and motivation to revisit injustices previously hidden from public view. We now have the critical resources to think about the systematic effects of speech. They come in many flavors: individual bids to sneaky collective acts (e.g., dogwhistles), offenses with tacit collective force (e.g., micro-aggression), or plain old mindfucking (e.g., gaslighting). Social justice tempts us to take a stance of hypervigilance, where brinksmanship is the strategy most fit for political discourse. And with great vigilance comes great dissensus, as hard bargains delay the renegotiation of a social contract. Meanwhile, people without conscience have enormous power and wealth, having consolidated their holdings into the hands of the collective few. The enemies of freedom and equality have nowhere to hide, so operate in public and with impunity. And while they will eventually get their due, the lurking threat of global warming may undo us.

Which is all to say it is difficult for us to see the point of liberal justice. For much of the liberal imagination is directed to remedy injustices in a life of reasonable civic association. Some small bit of it — not much — is directed at the process of bargaining along the way. This is, I think, is not the fault of the liberal contractualist ideal. But it does feel that public reason is an adjunct to institutional justice, a peripheral platitude. At worst, a critic can say, political liberalism helped to distract us from public facts on common ground. It is worth asking whether the critic has got it right.

**

Public reasons are by and for the public good, and publicized. For Rawls, democratic institutions of governance are based on public reasons. As seen, Rawls argues that a reasonable person — that is, a responsible and responsive person — should participate in civic life by putting public reasons first. In contrast, non-public reasons characteristically belong to social associations of all sorts; they are by and for special interests or organizations, and/or done for the good of such interests (and/or offered behind closed doors). We said these reasons are public-facing, and potentially publicized, but are not public reasons.

It’s worth noting that Rawls is not a fanatic about public reason. That is, the mature Rawls thinks associative reasons are not excluded from conversation, regarding the constitutive requirements of a democratic form of government. For Rawls, following Solum, is aware that many advocates of public reason have associative — even religious — motives. He does not deny that comprehensive doctrines play a role in negotiating a social contract. Yet the important point is that associative reasons play second-fiddle to public ones. Comprehensive doctrines matter only if they provide motivation and support for public reason. So it trivially follows there are two kinds of associative reason: the public-facing and the private-facing. (He might not use those terms, but I think he would agree to the distinction.) In that idiom, we can say our political moment is explained in part by the rise of self-indulgent associative reason.

***

There are a bunch of places where you can take issue with the Rawlsian political programme. You can criticize the conception of justice on libertarian or communitarian grounds, or you can criticize the approach to political representation on republican ones, or you can criticize the ideal-theoretic aspects of the programme. Some socialists have impugned it for its lack of a class analysis, and some feminists have taken issue with the elimination of the family from the basic structure of society. All these points are cogent, and all of them have potential limitations. But, since I am grinding my own axes, I would like to highlight three complaints, as they are distinctively related to the ideal of publicity and associative reason.

1. Rawls says that political societies are communities ordered by reason in order to secure terms of cooperation. Ostensibly, those terms of cooperation are ones called ‘fair’. But you have to be an an agreeable political mood to agree with his formulation. That is, you’ve got to say there are good answers to collective problems, and/or that we are in a position to act on those good answers. So, for instance, someone in the pessimistic mood might think of political societies as the rule of alpha predators, whose rule is unrelated to reasoned claims of fair cooperation. Since those assumptions are needed to sustain a collective political will, it is always pertinent in politics to invite pessimists to be more reasonable. But anyway, this objection is not fatal, as there is no reason to think that Rawls’s liberalism is any worse off than anyone else in the face of pessimism. Even survivalists assume they can survive somehow; even libertarians need to trust the sanctity of voluntary contracts. Pessimism is political nihilism, and it does not discriminate between liberals anyone else.
2. Rawls assumes that all nonpublic reasons are associative. But there is a third category — the category of private reasons. Rawls says “there is no such thing as private reason” (220 fn.7). If we put aside Wittgenstein’s nostrums about private rules. I do not know what he must mean, as he does not motivate that denunciation. Here is why. Suppose we were to follow Sissela Bok, in saying privacy is a personal claim of protected access to information. If so, then it sure looks to me like you can claim that you have special access to proprietary information, while potentially leaving your reasons unarticulated in public. The demand for candor is never ever comprehensive. e.g., when asked by government, “Are you gay?”, you can decline to answer the question, and also legitimately denounce it having been asked — and, most importantly for present purposes, you can legitimately leave your further reasons for exercising that discretion unarticulated if you so choose. That does not mean that no public reasons could be articulated, i.e., as it is unfair and inappropriate to force someone to out themselves. Nor does it mean that a political society can survive on the basis of private reasons alone. It is only to say that, yes indeed, there are such things as private reasons, just in case some of my reasons ever conceivably belong only to me. That being obvious, it is likely Rawls meant something else by private reason, but I do not know what it is, so leave the complaint at that.
3. Rawls believes that the modern constitutional Court is exemplar of an institution of public reason. The Court is obliged to fit its rulings into the “higher law” of the political system — that is, to fair terms of cooperation — and in that sense the Court is more democratic than executive and legislature. But does it on peculiar legal grounds. So, Rawls’s expression, ‘higher law’, is a Thomistic turn of phrase, and it makes Rawls (himself raised Catholic) seem like he is a natural lawyer. Were that true, it would be disquieting for us with positivist sympathies. Luckily, though, this is not necessitated by the text, since Rawls could equally well be saying that there is an unwritten constitution (perhaps secondary rules of recognition), and this is not the same thing as natural law. Moreover, he explicitly calls himself a ‘dualist‘ about judicial review, which I read to mean, he straddles the line between unwritten and written law. The difference, it seems, is that the written constitution is expressed as a system of public reason interpreted through ordinary court procedures and interpreted as conventional expressions of the constitutional enactment as amended, while unwritten laws are interpretations done in due course that are at the very least public-facing associative reasons, if not fully public ones.

Taken in isolation, these criticisms only limit and constrain, if not augment, his overall view. (1) Yes, political liberalism cannot be defended to the pessimist, because the embers of conscience and solidarity cannot blaze in such sodden wood. But that is a persisting problem in politics from every angle and ideology. (2) Private reasons are vitally important in many contexts, and in public they are indistinguishable from fiat. Yet we can explicitly state in public reason there is a right to self-govern. So, we can accommodate and honor private reason from a public point of view. (3) The idea of legal dualism in judicial review is interesting, and plausible, and shared by others — but it looks to be a detail worth clarifying for legal philosophers, not itself an irremediable defect.

It is only when the critiques are considered as a set, that we get a potentially cogent objection to Rawlsian justice. Suppose (as one might say) private reason is constitutive of political liberty. If so, then our device of representation — the original position, for Rawls — should properly encode that ideal in its procedure. But perhaps political liberty does not have a place in the original position — at least, not in the way that equality is encoded in it, as a set of rules that are endorsed equally under equal ignorance. At present, the only sense that original citizens are free is they make a choice without coercion. But suppose, to truly honor the ideal of freedom, original citizens be given a choice in mood. It follows that we would need to consider whether reasonable people can decide to be pessimists — and then we should demonstrate that even originally positioned pessimists will follow A Theory of Justice. If one could make that argument, then that is all well and good; but if not, Rawlsian theory would need to consider how seriously it thinks of liberty as an ideal.

Publicity, associative reasons, and legal systems (I)

John Rawls was the best kind of programmatic philosopher. This was not a guy whose output could be reduced to a single thought-experiment or evocative illustration; you can’t appreciate him as a philosopher unless you can see his systematic design. But that’s got a downside. The thing is, when you’re a programmatic philosopher, a lot of your output can be difficult for others to follow. Everyone understands a view best when they can see contrasts, objections, and alternatives, yet the programmatic philosopher’s prose is often impassively self-referential. So, for instance, when Rawls talks about reason, then you’d better be alert to the special ways that he defines the terms elsewhere; and woe be to the reader who thinks they can deduce the meaning of any single one of these concepts {“reasonable”, “public reason”, “acceptable”} from the others. (Meaning: intellectually accountable, common reason for the commons, and accords with convictions under wide equilibrium, respectively.)

So, I think it’s easiest to appreciate the best parts of Rawls’ theory of justice once we accept his broader political vernacular, but also to extend his analytical tools in ways which let us articulate conceptions of political justice that he does not accept. I have an ulterior motive for wanting to contrast his approach to justice to others, since I am interested in how theory of justice relates to general jurisprudence and legal theory as such, which means I’m obliged to do a compare-and-contrast exercise between different incommensurate moral and legal theories.

So here’s the shtick. I assume you’ve basically got the idea of Rawls’s theory of justice under your belt. Now, in the next few posts I’m going to tell a dogmatic story about how legal systems are best understood in terms of non-public reasons. To do that, I’ll use Rawls’s seminal “The Idea of Public Reason” (in Political Liberalism) as reference point. The story unfolds in three chapters. First, in this post, I’m first going to offer a sympathetic rereading of Rawls’s idea of public reason in a way that makes the most sense of the idea of publicity. My aim is to do justice to the attenuated sense in which associative reasons are publicized. In the next post I’ll compare Rawls’s theory of justice to a charitable rereading of Thomism. Then I’ll conclude by offering a few idiosyncratic complaints about the Rawlsian outlook.

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Public reason is the expression of a modern liberal political conception of justice, and since liberalism is a relatively new political phenomenon, public reason is a newcomer on the historical scene. In contrast, associative (“social”) reason is as old as rocks, and an enduring feature of societies, i.e., communities structured by status. Because associative reason is more common, it is easier to understand public reason in contrast to it, rather than vice-versa. Associative reason is the clearer concept of the two, easier to grasp as the historical rule than as the exception. (I will use the term ‘associative reason’ here, which is my own term, not his. Instead, Rawls prefers the term ‘social’ or ‘nonpublic’ reason. I do not join him in his usage because the very idea definition of the social is contestable, and his formulation of ‘nonpublic’ reason is something I will take issue with later.)

As I have argued elsewhere, the most plausible mainstream theories of law in the Western canon have all held that law is necessarily promulgated to be law. Publicity is a criterion for legal validity. Suppose that’s so. It follows that, if associative reason is a legal universal, then we should expect it to be public in some sense or other. And indeed it is universal, in the minimal sense that every reason to adopt a policy that is open to view in public discourse is at least an associative reason as opposed to a private reason. A potential for contradiction lurks here, since associative reason is not ‘public reason’ by definition, but is public. But the air of paradox is resolved by noticing the equivocation at work in the word ‘public’. Associative reasons are not public in Rawls’s sense of ‘public reason’, since Rawls’s use of the phrase concentrates only on reasons that are public qua public — i.e., those reasons for policy that are aimed at achieving a reasonable overlapping consensus among the free and equal citizenry. That is why Rawls thinks that associative reasons do not play a just role in legitimate democratic institutions — they are not public in the maximal sense of being common reason for the commons. In this, Rawls is articulating a model of legitimacy as consent of the governed analogous to other well-known social contract theorists — e.g., Rousseau’s sense that civic participation should be aimed at the general will.

I hope you’ll let me rehearse the idea of public reason one more time, because it’s especially important to a guy like me who cares about the importance of publicity to legal theory. Rawls tells us that the aim of public reason is to establish the constitutive features of a democratic system, especially those features related to political and legal standing of free and equal citizens. His way of speaking entails that public reason is public in the pure sense of being reasons directed at the commons, and not in the mere sense of just being public-facing, i.e., mere attempts to resolve collective action problems. In Rawls’s theory of justice, a public reason is an attempt to arrange our plans in a way that is conceived of through the original position — i.e., a device of representation where hypothetical future participants of a society establish the principles of the political order they would like to live in despite being ignorant of their own rank and status in the future order. It is not just reason open to view, but reason that happens in the commons for the commons.

Yet, although we can distinguish between publicity and public reason, we should not ignore the relationship between the two concepts. For Rawls — and for many of us — strong, justifiable rationales are a part of public reason. This is a point that Rawls makes explicitly in his astute formulation of the publicity condition elsewhere in Political Liberalism (Ch.2, s.4). (If we are feeling especially Whiggish, we might even go so far as to say that the teleological point of publicity is to, eventually, recommend that we adopt public reason as a model of legitimacy, and hence that honoring the ideal of publicity in tyrannies shall eventually bend politics towards the cause of democracy, though these speculations are not ones that I am eager to endorse.)

A final word, ending the setup of the discussion of public and associative reason. When we are thinking about political affairs, we are generally interested in two major topics, which are the requirements of practical justice and epistemic justice. Practical justice is made up of a statement of (a) basic rights in principle (i.e., an articulation of the sense in which citizens are free and equal), and (b) the assurance of means to use those rights in practice (i.e., equity and matters of distributive justice). Public reason is political in the sense that it is directed at the basic structure of society, i.e., the society’s main social, political, and economic institutions, conceived of as a single system of cooperation. Epistemic justice sets guidelines for inquiry, e.g., rules of evidence and process at trial and by police. Because these considerations mark off constitutional essentials, they must be justifiable to all citizens with different ideas about how to live the good life.

Well, suppose that’s all good. It certainly seems like an intuitive characterization of justice, as it correctly characterizes the operations of legal systems as we know them as creatures directed to the cause of justice.

It follows that, if the question of what public reason requires of us is pursued sincerely — i.e., by checking off hypothetical opinions of real people in hypothetical situations — then the sense that the basic constitution of the regime is justified will depend on facts we can refer to about how people think about the implicit contract that binds them. Since those facts are known or intuitively knowable, they are accessible; and since they are accessible, they are publicized. In which case, public reason will get away with satisfying the publicity condition “on the cheap”. In contrast, if a legal regime goes about publicity through associative reason, then it will require an activist spirit, swimming upstream against the currents of a community’s considered sense of fair play.