PUBLIC REASON AND DELIBERATION
CHAPTER 4
RECIPROCITY AND ACCOUNTABILITY: CONTEMPORARY THEORIES OF
PUBLIC JUSTIFICATION
Justification
Public reason and deliberation are often discussed under the general category of
theories of public justification. This chapter offers a brief survey of ideas of public
justification and discusses some of the central disputes among defenders of public
justification.
An interest in justification is becoming a defining feature of contemporary
liberalism.1 This does not mean that liberals are in some sense more engaged in the
process of justification than they used to be or than other types of political philosophers.
For what is political philosophy but the activity of justification? If we understand
justification generally to mean the process whereby we seek to ground or defend claims,
principles, conclusions (and actions), then all political philosophy to the extent that it
engages in arguments, offers reasons and seeks to defend claims is engaged in
justification. To say that justification stands at the center of contemporary liberal theory
is to say something more than that liberal theorists are in the business of justifying liberal
principles. It is to say that liberal theory is self-consciously asking ‘what does it mean to
justify liberal principles?’ Even more particularly, liberals are asking ‘how ought we to
think about the justification of coercive law and public institutions under conditions of
pluralism?’ As we say in the last chapter, John Rawls and Jürgen Habermas inaugurated
the move towards a justification-centered model of liberalism when they (independent of
each other) introduced ‘all those affected’ as the addressees of justification. “Public
justification is not simply valid reasoning, but argument addressed to others” says
Rawls.2
John Simmons argues that this represents a major shift in the way political
philosophy understands justification: “Justification is now justification to a particular set
of persons, not justification ‘simpliciter’” (Simmons: 759).3 What this shift points to,
according to Simmons, is a fusion of two concepts held separate within traditional liberal
political philosophy. Justification and legitimacy fold into each other in contemporary
liberalism especially its Kantian version. This is to be contrasted to the more traditional
view, seen for example in Locke, where justification is an essentially philosophical or
epistemic enterprise seeking to get it right while legitimacy is a political concept seeking
to secure allegiance. Locke justified the state through the device of a contract which was
in turn supported by natural law theory. Legitimacy by contrast was established through
the consent of the governed. Today we see contract and consent being replaced by an
over-arching idea of ‘justification to the other’.4
The move away from justification simpliciter towards inter-subjective ideas of
justification is due in part to the accommodation of and respect for the deep pluralism
that characterizes most liberal societies. It is not that all liberals have abandoned ideas of
natural law or objective good (although many have and so the post-metaphysical nature
1
of much of liberal theory also contributes to the move away from justification
simpliciter), it is that there is a general acknowledgment that getting the argument right
does not confer any moral authority to impose that conclusion on people who do not
agree with the argument. In a philosophy seminar it might be enough to say to those who
fail to see the truth in your argument, ‘well you’re just wrong – too bad for you.’ But
when justifying the basic structure of the social and political order to fellow citizens,
‘you’re just wrong’ fails to treat others as equals in all sorts of ways that I discuss below.
Thus the move from objective justification to inter-subjective justification is the result of
subjecting liberal philosophy to liberal constraints.
What is being justified, to whom, and by whom?
All liberals believe that power and coercion require justification of some kind. A
large subset of liberals argue that power and coercion require public justification which
involves seeking, constructing and offering reasons that are acceptable to citizens.
‘Consent of the governed’ is replaced by ‘justified to all those affected’ as the touchstone
of legitimacy. The term public justification is now a term of art to signal membership in
this subset of liberal theory.5 The public of public justification refers first to the fact that
it is justification of public things, i.e., laws, constitutions, basic social structure; second,
to the fact that the addressee of the justification is a public at large characterized by
pluralism (this might be ideally conceived, or as an empirical entity, or something in
between); and finally, public refers to the idea that justification is presented in public or
by citizens acting publicly. Not all philosophers stress this last dimension of public.
Much depends on whether the conception of public justification contains a strong
obligation to engage in the public practice of justification or not. Furthermore, the
obligation to engage in the practice of public justification can be thought to fall on
citizens generally or on public officials especially or perhaps even exclusively. Within
public justification it is possible to make further distinctions regarding the ‘what’ of
justification. The spectrum runs from the justification of general positions or opinions
about public matters through the justification of individual laws and specific policy
recommendations to the justification of constitutional essentials and basic structure.
Philosophers are often not clear about which end of this spectrum they are focusing on
and this can cause some confusion. Some constraints on public justification, for example,
are more plausible as constraints on public officials defending constitutional essentials or
enacting legislation than on ordinary citizens defending their political positions in public
debate. We will return to this issue below.
Public reason and deliberation are deeply implicated in any idea of public
justification. They offer two slightly different angles from which to view public
justification. Public reason (understood generically and not as a specifically Rawlsian
concept) refers to the content of the reasons given within public justification. Here the
questions focus on the types reasons appropriate to public justification. The adjectives
most often used to describe public reasons are intelligible, accessible, acceptable, or
sharable. All these terms attempt to capture some special quality of a public reason that
sets it apart from a private reason. Deliberation usually refers to the process of reasongiving. Here the focus is often on the procedural constraints and inter-subjective
dynamics of public justification. The sorts of procedural characteristics that become
important are reciprocity, publicity, and inclusiveness.
2
Scholarly interest in public reason has produced a voluminous literature largely
focused on theories of liberal tolerance under conditions of pluralism.6 The two leading
trends in this debate are, first, a progressive expansion of the idea of public reason
beyond Rawls’s initial and highly influential articulation, and second, a focus (to the
exclusion of many other important questions) on the special problems posed by religious
reasons. I discuss both these trends below. Scholarly interest in deliberation has
produced a voluminous literature largely focused on democratic theory.7 Theories of
deliberative democracy take the idea of public justification and place it at the center of
theories of democratic decision-making. Thus all theories of deliberative democracy
contain some conception of public justification but not all views of public justification
entail a deliberative view of democracy or any specific view of democracy for that
matter.8 In this chapter I will not discuss democratic decision-making but concentrate on
the underlying conception of public justification that both theories of public reason as
well as theories of deliberative democracy rely on.
Although John Rawls is a central figure in the development of ideas of public
justification he is only one among a number of influences playing themselves out in this
debate .9 Jürgen Habermas has also been influential (Forst "The Basic Right to
Justification: Towards a Constructivist Conception of Human Rights; Benhabib) but one
can also identify a pragmatist strain that draws on Dewey and Pierce (Mysak; Talisse), a
view inspired by Hobbes (Gauthier), a republican idea of public justification (Pettit), a
post-colonial view (Ivison), a deliberative democracy strain (Cohen "Procedure and
Substance in Deliberative Democracy; Gutmann and Thompson) and many others.10
Thus, one of the features of the debate about public justification is that it has burst the
bounds of “political liberalism” and engages many strains within liberal democratic
theory. Public justification is the dominant focus of liberal theory. That focus includes
many different readings and claims about how we should be justifying coercive laws to
citizens.
Why Justification?
Despite disagreement about how to conceptualize the public justification
requirement there appears to be some agreement on why we should focus on justification
to others as the central conceptual tool in thinking through liberalism. Public justification
is often thought to embody and give concrete expression to liberal ideas of respect for the
freedom and equality of persons (Forst "The Rule of Reasons: Three Models of
Deliberative Democracy": 374; Gutmann and Thompson: 79; Cohen "Procedure and
Substance in Deliberative Democracy": 416; Eberle Religious Conviction in Liberal
Politics: 84-108). While respect stands at the center of all ideas of public justification,
some views stress respect for the equal freedom of individuals while others the rational
capacity of individuals. Gerald Gaus places freedom at the center: “if we are to respect
others as free and equal. Laws must be justified to them.”(Gaus and Vallier: 55). Charles
Larmore stresses that justification respects the rational capacity of persons: “(T)he
distinctive feature of persons is that they are beings capable of thinking and acting on the
basis of reasons. If we try to bring about conformity to a political principle simply by
threat, we will be treating people solely as means, as objects of coercion” (Larmore The
Morals of Modernity: 137).
3
What is the value added we get with justification that we do not get with the older
idea of consent? Why is consent now seen as inadequate? The first thing to say is that
justification to all those affected bears a strong family resemblance to consent.
Justification shifts the focus from consent simpliciter to the reasons for consent and this
in turn has a number of implications. First, as Jeremy Waldron tells us, the move from
voluntaristic to rationalist accounts of political legitimacy “corresponds to the distinction
between actual and hypothetical consent” (Waldron: 51).11 Actual consent is a
notoriously difficult criterion to meet (Estlund: 9). Furthermore, it is subject to all sorts of
possible pathologies and distortions connected to human psychology, desires and
manipulation. Thus the focus on reasons for consent rather than on the simple act of
consent introduces the possibility of imagining what people would consent to as well as
tying legitimacy to epistemic ideas of consent for good reasons.
Justification rather than consent introduces the possibility of a fully hypothetical
model of legitimacy, however, this is not to say that all or even most liberal theorists of
public justification opt for a fully hypothetical model of justification. Many theories of
public justification introduce some form of hybrid in which there is, on the one hand, an
hypothetical argument that might go something like this: ‘P is a policy for which there
are reasons that all could accept’. On the other hand, there is the insistence that some
form of actual process of public justification in which these reasons are aired, discussed
and put before the public take place. Even Kant, who very explicitly states that no actual
consent or ratification of laws is needed to establish that a law could be agreed to by a
whole people (Kant : 8:297), nevertheless insists that public debate and indeed a process
of public justification is necessary to achieve this outcome (Kant: 8:304). But for Kant a
public process of justification is endorsed as a means of getting the reasons right and not
as furnishing evidence of consent.
There is another dimension to justification that is absent in the idea of consent
simpliciter that is important to varying degrees within the literature. This has to do with
enlightenment ideals of transparency and autonomy. Waldron puts it nicely when he
notes that public justification is connected to the demand for the intelligibility of the
social order, “its workings and principles should be well-known and available for public
apprehension and scrutiny. People should know and understand the reasons for the basic
distribution of wealth, power, authority, and freedom. Society should not be shrouded in
mystery, and its workings should not have to depend on mythology, mystification, or a
‘noble lie’”(Waldron: 58). Here public justification is not understood as a rationalized
idea of consent so much as a process of accountability and disclosure that is a necessary
condition for citizens to exercise their autonomous judgment. Indeed, far from
embodying consent, this idea of public justification gives citizens the rational grounds to
criticize power or withhold consent. These two ways of looking at public justification, on
the one hand as a rationalized idea of consent and on the other as a public process of
accountability, run through the literature and are often not clearly distinguished although
it is a crucial distinction for sorting through and comparing theories.
From responsiveness to restraint
Approaches to public justification can focus more on process or on outcome.
Process centered theories tend to look at public justification through the lens of
democratic citizenship (justification as something citizens owe each other) while outcome
4
oriented approaches focus more directly on the question of legitimacy (justification as a
means of getting it right).12 Most theorists of public justification value justification for
both reasons but emphasis can be important to the type of theory one endorses in the end.
An emphasis on outcome, for example, is often connected with an essentially epistemic
view of justification while an emphasis on democratic citizenship sees public justification
more as a politico-moral mechanism to navigate pluralism. I will begin with views that
emphasize citizenship obligations.
What do citizens owe each other? Views run along a continuum from a weak idea
of accountability to a strong idea of a “duty of restraint” (Macedo "A Republic of
Reasons: Public Reason and the Constitution of the Public Sphere": 9). A principle of
accountability holds that citizens and officials must be willing to publically defend and
justify their claims and policy preferences. Here the idea is simply that we ought to be
able and willing to give an account to each other. “Fairness and respect require an honest
effort, on the part of citizens advocating a policy, to justify it to other reasonable citizens
who may be approaching the issue from different points of view” (Stout: 65). This has
also been called an “ethos of responsiveness”(Thaler). This very minimal idea does not
require that citizens necessarily offer accessible, acceptable or sharable reasons only that
they offer reasons. Stony silence, lies, “it’s a secret”, “go away”, or “none of your
business”, for example, are not appropriate responses to the question, “what is the reason
for this legislation?” Citizens show a minimum level of respect for each other by
honestly and sincerely responding to each other’s claims, demands and policy
endorsements. Furthermore, a principle of accountability or responsiveness establishes
an obligation on the part of power holders to give an account of power that can be
assessed, criticize and challenged if need be.13
But can anything count as a justification if we offer it as such? Can I offer the
phrase “because today is Tuesday” as a justification of my preference for policy A? Most
people would add an intelligibility requirement.14 On the surface this seems like
commonsense but already we are moving into controversial waters. What is to be
considered intelligible and what not can itself be problematic at the margins. An atheist
might claim that religious arguments are essentially nonsense and so analogous to
“because today is Tuesday”(Green: 659). Or even more problematic, indigenous peoples
might offer reasons that fall completely outside modern scientific understandings of the
world. Would it be appropriate to simply exclude them or their point of view from our
conceptions of public justification? Because of these problems, there are some theorists
who resist any substantive description of what citizens owe each other in public
justification even such minimal ones as intelligibility.
The group of theorist who have the most process based and also minimal
conception of public justification I place under the loose heading - borrowed from
Duncan Ivison – of post-colonial liberalism (Tully; Ivison). What they often have in
common is a rejection of the idea that we could conceive of public justification (even in
its hypothetical forms) minus power (Thaler). This rejection in turn is often based on
thinking about the place of aboriginal, indigenous and colonized people within a process
of public justification. Even such a minimal criterion as intelligibility can be seen as a
concept whose boundaries have been set by those with the power to set the terms of the
discourse. Because discourses are riddled with power, outcomes never have strong
claims to legitimacy and the concept of justification itself (for example, what is to be
5
considered intelligible) is also up for debate. What emerges then is an open ended process
of public accountability punctuated by temporary modus vivendi solutions to
disagreements (Tully: 147; Ivison: 111).
Although post-colonial thinkers would resist a substantive or hard and fast
intelligibility requirement, many liberals working within this paradigm would think that
intelligibility is actually a very weak requirement.15 Rawls, for example, does not think
that an intelligibility restriction is very helpful. He wonders if any sort of public
justification or respect is invoked by the fact that “Servitus could understand why Calvin
wanted to burn him at the Stake”(Rawls "The Idea of Public Reason Revisited": 138).
The thought here is that a liberal-democratic order requires more of citizens than that they
respond to each other and that they respond in intelligible ways. Many public justification
philosophers insist that reciprocity not simply responsiveness is the standard that citizens
should try to meet in public justification. Of course post-colonial thinkers like Tully
would claim that open-ended responsiveness contains form of reciprocity. Rather than
stipulating in advance the rules of reciprocity, as does Rawls, open-ended responsiveness
entertains the possibility that on the one hand, there might be forms of reciprocity that we
have never thought of, and on the other, that stipulating the rules of reciprocity in
advance might actually be a denial of reciprocity to those outside of the tradition. But the
counter argument is that the post-colonial view fails as a model of public justification
because nothing ever gets justified. Reciprocity as it is invoked by Rawls and others is
intended the restrict reasons - not open the door to any and all reasons - in order to
specify what is to count as a justified and so legitimate outcome.
Reciprocity and reasonableness
Rawls describes the criterion of reciprocity this way: “Our exercise of political
power is proper only when we sincerely believe that the reasons we would offer for our
political actions…are sufficient, and we also reasonably think that other citizens might
also reasonably accept those reasons”(Rawls "The Idea of Public Reason Revisited":
137). Similarly, Gutmann and Thompson note that reciprocity requires that citizens
“appeal to reasons or principles that can be shared by fellow citizens…moral reasoning is
in this way mutually acceptable” (Gutmann and Thompson: 55) So reciprocity introduces
a duty of restraint in public justification. Not everything or anything that we might
believe to be true or care about has a place within public justification. The idea here is
that any time any of us propose and defend a policy, law, or constitutional order we are
proposing and defending a form of coercion. Coercion is made legitimate through
seeking a common form of reasoning through which all citizens or all those affected can
sign on to the proposal (Nagel: 33). Because we cannot as an empirical matter canvas
every single person and also because actual responses of empirical persons can be
unreasonable (the traditional problems with consent), we ought to seek to fold others
people’s possible consent (or at least their interests, concerns and perspectives) into our
very reasoning: only appeal to reasons that you think might be acceptable to fellow
citizens understood as reasonable. So we do not have to imagine that our reasons must be
acceptable to every possible objection no matter how crazy or unreasonable. But how
exactly should we go about sorting reasons into the possibly acceptable and probably
unacceptable? And how should we specify reasonable beyond ‘not obviously crazy’?
Up until this point there is quite a lot of agreement in the literature that public
6
justification requires the adoption of a form of reasoning that takes other citizens
understood as free, equal and reasonable into account. So for example, arguing that
“some are worth less than others or that the interests of one group are to count for less
than those of others” (Cohen "Procedure and Substance in Deliberative Democracy":415)
is out from the start. But the real problems arise when philosophers begin to specify
guidelines for restricting reasons to ones that are sharable or that other citizens can sign
on to. Early articulations of these guidelines all leant towards some ideal of neutrality
(Rawls Political Liberalism; Nagel; Larmore "The Moral Basis of Political Liberalism").
Rawls set the terms of debate.
For Rawls, public justification should appeal to public reasons only. Public
reasons are political not metaphysical.16 By this he means that we should try as much as
possible to refrain from appealing to parts of our personal belief system that involve
controversial or simply unshared ideas of truth, the good life, ultimate values and so on.
Instead we should seek reasons that are freestanding from our comprehensive views to
the extent that we could imagine people who do not share our particular comprehensive
view possible endorsing them.
There was immediate debate about whether it was possible or desirable to
exclude comprehensive not to mention controversial ideas about truth and morality from
public debate about important matters. Especially vocal were defenders of religion in the
public sphere. Rawls’s original articulation clearly excluded religious reasons from the
class of potential public reasons. Indeed, for many liberals until quite recently, public
justification was thought to be synonymous with secular reasoning. The first and still
most powerful objection to the exclusion of religious reasons was that excluding them
effectively excluded religious believers from public justification as it was not always
possible, desirable or ethical for religiously minded citizens to check their beliefs at the
door when they entered the public sphere (Weithman; Wolterstorff). Rawls revised his
original conception of public reason, introducing what he called the wide view of public
reason (Rawls "The Idea of Public Reason Revisited"). Reasons drawn from
comprehensive views in general and religious views in particular could be introduced into
public justification (because to exclude them would be unfair to the holders of such
beliefs) but only under the proviso that properly public reasons (i. e., political and in
principle sharable) could be produced sometime down the line. The introduction of the
proviso has done little to quiet critics of the Rawlsian view. The debate has moved
beyond Rawls in significant ways. I will mention only two. The first is that, primarily in
response to questions posed by religious thinkers, there is a growing tendency to separate
public justification understood as a way in which citizen and elected officials talk to each
other about public issues and public justification as a criterion of legitimacy. Today, few
liberals insist that religion should be excluded from public debate or that those who
appeal to religious arguments must be ready to produce ‘bone fide’ public reasons when
called upon. Indeed, since the first objections against public reason on behalf of religion
were put forward, there has been a tremendous shift in thinking about religion and its
relationship to liberalism all across the spectrum. More than just a concern for public
justification has fueled this shift of course. But the result has been a rethinking of some
of the assumptions about secularism and the place of religion in the public sphere. But
this openness to religion in the public sphere often goes hand in hand with a conception
of legitimacy in which religion reasons are problematic. Most liberal theorists of public
7
justification (including religiously oriented ones) would still insist that religious reasons
can never be sufficient reasons for coercive law even though we should let citizens and
sometimes elected representative argue and publicly defend their political positions in
religious terms. A great deal of contemporary debate about religion and public
justification is devoted to trying to reconcile these two sides of public justification.17
The second trend coming out of a response to Rawls is a move away from
neutrality, sharability, and the exclusion of comprehensive world views as guidelines for
achieving reciprocity. A few thinkers have stood by this Rawlsian ideal, however.
Stephen Macedo is the torch bearer, one might say, for the unreconstructed Rawlsian
position. He insists that acceptable should be understood as sharable in a strong sense.
For Macedo public justification contains “the hope that members of large political
communities can converge on shared principles and a shared rationale, a public
framework of thought for reflecting upon and justifying common principles to one
another” (Macedo "A Republic of Reasons: Public Reason and the Constitution of the
Public Sphere": 9). Public justification understood as the search for shared public reasons
should act as force to counter the centrifugal tendencies of pluralism. Thus for Macedo,
public justification represents an aspiration to find common ground and not the claim that
we have some clear consensus right now to work from. While Macedo does not insist on
a blanket exclusion of religion, he is deeply suspicious of religion in the public sphere
(Macedo "In Defense of Liberal Public Reason: Are Slavery and Abortion Hard Cases?").
More common is the view that public justification ought to channel and give
expression to pluralism rather than seeking to counter balance pluralism. Macedo calls
the former position diversitarian and in this group he places theorists who endorse public
justification but are skeptical about the possibility of reasons all could accept. It turns out
the group is very diverse, large and I would argue getting larger.18 Chief among
diversitarians is Gerald Gaus. Gaus approaches public justification from an epistemic
perspective19 and asks ‘when is an individual justified in believing x?’ The answer is that
an individual is justified (or has conclusive reasons) in believing x when x fits with all
sorts of other things that she believes. Public justification is then understood as the
aggregate of conclusive reasons for all those affected. “L is a justified coercive law only
if each and every member of the public P has a conclusive reason(s) R to accept L as a
requirement” (Gaus and Vallier: 53). The most surprising feature of this view is that a
law may be justified without any public exchange of reasons or actual public justification.
On the epistemic view, there have to be such reasons, but individuals do not necessarily
have to consciously embrace or endorse such reasons. Individuals may be mistaken or
inconsistent about what reasons are conclusive for them given the other things they
believe. Thus framing justified laws is a philosophical/epistemological problem not a
political problem. On this view there is a convergence on an outcome but not on the
reasons: reasons are acceptable to each and every citizen but they are not shared. 20
While both Macedo and Gaus have staked out important and prominent positions
within the public justification literature, they are both outliers to some extent. Macedo’s
stress on consensus seems unrealistic and unfriendly to diversity; Gaus’s epistemic model
seems overly formal and oddly private lacking as it does any corresponding idea of the
public practice of justification. Today, most contributors to this debate fall somewhere
between these two alternatives. On the one hand ‘reasons all can accept’ is usually
understood as convergent reasons and not shared reasons and furthermore those
8
convergent reasons may very well reflect people’s deepest unsharable commitments. On
the other hand, a shared commitment to reasonableness and reciprocity should govern a
collective process justification. Reasonableness and reciprocity are often given loose
context dependent definitions.
Deliberative models of public justification
Rainer First/Gutmann and Thompson/et al
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---. The Morals of Modernity. Cambridge: Cambridge University Press, 1996. Print.
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Waldron, Jeremy. "Theoretical Foundations of Liberalism." Liberal Rights. Ed. Walden,
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Here are examples of similar assessments. “The idea of public justification is the key idea in
contemporary liberal-democratic political theory” Fred D'Agostino, Public Justification, 2007.
“Justificatory Liberalism is perhaps the dominant brand of political liberal political theory today” Kevin
Vallier, "Against Justificatory Liberalism's Accessibility Requirement," Journal of Moral Philosophy
(2010).: 1.“The moral core of this (liberal) order is a commitment to public justification.” Stephen Macedo,
"Liberalism and Public Justification," Liberal Virtues, Citizenship Virtues, and Community in Liberal
Constitutionalism, ed. Stephen Macedo (Oxford: Oxford University Press, 1990).: 40-41. “(P)ublic
deliberation and justification - has become increasingly prominent in contemporary political philosophy…It
is frequently said to lie at the heart of liberalism.” Gerard J. Postema, "Public Practical Reason: Political
Practice," Theory and Practice, ed. Ian and Judith Wagner DeCew Shapiro, vol. XXXVII, Nomos (New
York: New York University Press, 1995).:345. “Liberalism rests on a certain view about the justification
of social arrangements.” Jeremy Waldron, "Theoretical Foundations of Liberalism," Liberal Rights, ed.
Jeremy Walden (Cambridge: Cambridge University Press, 1993).: 36. “Contemporary Liberals, as I
understand them, have a special commitment to public justification.” Duncan Ivison, Postcolonial
Liberalism (Cambridge: Cambridge University Press, 2002).:14. “Today liberal political theory is
increasingly dominated by the question of justification.” Mark E Button, Contract, Culture, and
1
11
Citizenship: Transformative Liberalism from Hobbes to Rawls (University Park, Penn: The Pennsylvania
State Press, 2008).: 37. “The norm of public justification…has been a focal point of recent liberal political
theory generally” Christopher J. Eberle, "Religion and Liberal Democracy," Blackwell Guide to Social and
Political Philosophy, ed. Robert L. Simon (Malden Mass: Blackwell, 2002).: 294
2
John Rawls, "The Idea of Public Reason Revisited," The Law of Peoples, ed. John Rawls (Cambridge:
Harvard University Press, 1999).: 155. This view of justification was already present in A Theory of
Justice. See especially p. 581. Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse
Theory of Law and Democracy (Cambridge: MIT Press, 1996).
3
For similar distinctions see Anthony Laden (philosophical justification vs. political justification) and
Christopher Eberle (rational justification vs. public justification). Anthony Simon Laden, "The Justice of
Justification," Habermas and Rawls: Disputing the Political, eds. Fabian Freyenhagen and James Gordon
Finlayson (London: Routledge, 2010). Christopher J. Eberle, Religious Conviction in Liberal Politics
(Cambridge: Cambridge University Press, 2002).: 63-66
4
For a reading of the whole liberal tradition through the lens of justification, see Gerald Gaus,
Contemporary Theories of Liberalism (Thousand Oaks: Sage, 2003).
5
Justification has also become central to liberal moral philosophy which seeks to offer a general account of
right action as well as legitimate law. See especially T. M. Scanlon, What We Owe to Each Other
(Cambridge, Mass: Harvard University press, 1998). In this essay I focus primarily on the justification of
coercive law and not right action.
6
It is hard to know where to start. For some general overviews see: Gerard J. Postema, "Public Practical
Reason: An Archeology," Social Philosophy and Policy 12 (1995). Paul J. Weithman (ed.), Reasonable
Pluralism (New York: Garland, 1999). Fred D'Agostino, Free Public Reason: Making It up as We Go
(Oxford: Oxford University Press, 1996).
7
Again it is hard to know where to start. For some general overviews see Joshua Cohen, "Deliberative
Democracy," Deliberation, Participation and Democracy: Can the People Govern?, ed. Shawn W.
Rosenberg (New York: Palgrave Macmillan, 2007), Simone Chambers, "Deliberative Democratic Theory,"
Annual Review of Political Science 6 (2003). James Bohman, "Survey Article: The Coming of Age of
Deliberative Democracy," The Journal of Political Philosophy 6.4 (1998).
8
Jeremy Waldron, for example, places public justification at the center of his conception of liberalism but
endorses a majoritarian view of democracy that stands opposed to many aspects of deliberative democracy.
And Gaus endorses a very strong idea of public justification but believes that citizen deliberation is not the
best way to actually achieve justification.
9
Examples of theorist who could be said to work within a Rawlsian framework are Stephan Macedo,
Anthony Laden and Samuel Freeman. See especially Stephen Macedo, "In Defense of Liberal Public
Reason: Are Slavery and Abortion Hard Cases?," Natural Law and Public Reason, ed. Robert P. George
and Christopher Wolfe (Washington, D.C.: Georgetown University Press, 2000). Anthony Simon Laden,
Reasonable Radical: Deliberative Liberalism and the Politics of Identity (Ithaca: Cornell University Press,
2001), Samuel Freeman, ""Public Reason and Political Justification"," Justice and the Social Contract:
Essays on Rawlsian Political Philosophy, ed. Samuel Freeman (Oxford: Oxford University Press, 2007).
10
There is a Natural Law conception of public reason and public justification but as it does not fall within
the liberal conception, I leave it out of the list. See especially Robert George (ed.) and Wolfe (ed.)
Christopher, Natural Law and Public Reason (Washington D.C.: George University Press, 2000).
11
Hypothetical consent is also sometimes called normative consent. See David Estlund, Democratic
Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008).: 10
12
In addition to legitimacy and citizenship, Bohman and Richardson note that justification is also valued as
a model of authority and of course philosophical justification on its own. See James Bohman and Henry
Richardson, "Liberalism, Deliberative Democracy And "Reasons All Can Accept"," Journal of Political
Philosophy 17.3 (2009).
13
It is tempting to call this a principle of publicity because at its core is the simple requirement of making
reasons and justifications public. The term ‘publicity principle,’ however is over used and over burdened
and so I do not appeal to it in this context.
14
This is as far, for example, as Jeremy Waldron goes. See Waldron, "Theoretical Foundations of
Liberalism.": 44. Although he places public justification at the very core of a liberal order he does not
think that the process itself is likely to result in a convergence on mutually acceptable reasons.
12
15
I do not wish to imply that post-colonial liberals think that nonsense has a place within public
justification. They do think that justifications need to make sense. They simply resist defining in advance
what that might mean -leaving it open to participants to struggle with that question. The thought here is
there might be non-western ways to justify claims that should not be ruled out from the beginning.
16
Rawls’s discussion of public reason is rich and complex and I can only touch on it very superficially
here. For an in depth discussion see Anthony Simon Laden, "The House That Jack Built: Thirty Years of
Reading Rawls," Ethics 113 (2003), Freeman, ""Public Reason and Political Justification"." Also see the
special issue of the Fordham Law Review (April 2004, 72:5) and a special issue of Philosophy & Social
Criticism (September 2004, 30: 5-6) devoted to Rawls and public reason.
17
For a good discussion of these issue see the special issue of Philosophy & Social Criticism (September
2009, 35:1-2) on religion and the public sphere
18
Macedo includes Jeremy Waldron, Christopher Eberle, Jeffrey Stout and Gerald Gaus. I would add most
theorist of deliberative democracy with the exception of Habermas.
19
Two other philosophers who take an explicitly epistemic view are David Estlund and Robert Talisse.
Estlund, Democratic Authority: A Philosophical Framework, Robert B. Talisse, Democracy and Moral
Conflict (Cambridge: Cambrisge University Press, 2009).
20
Drawing on social choice theory, Gaus and Vallier add that broad public deliberation is
counterproductive to public justification because most citizens do not, as an empirical fact, have the
epistemic capacity to weigh and assess other people’s claims. Gerald Gaus and Kevin Vallier, "The Roles
of Religious Conviction in a Publicly Justified Polity," Philosophy and Social Criticism 35.1-2 (2009).: 6569
13