Reinterpreting Rawlsian Public Reason for Deliberative Democracy — Epoche B2
Public reason stops exactly where most coercion begins The doctrine and the line it draws In Political Liberalism John Rawls sets out a duty that citizens owe one another when they decide political questions [1] . Because a free society will contain many reasonable but incompatible religious and philosophical doctrines, and because none of them can be made the official basis of the state without coercing those who reject it, citizens are to justify their political positions by appeal to reasons the others could also accept [2] . This is public reason, and Rawls develops it in the sixth lecture of that book. The duty does not apply to everything. Rawls limits it to what he calls constitutional essentials and matters of basic justice: the structure of government and the political process, the equal basic rights and liberties, and the principles governing the basic structure of society. Below that line — tax schedules, environmental regulation, agricultural subsidy, licensing, drug policy, most of what a legislature actually does — the requirement is not in force. Rawls says so directly, and he kept the restriction in "The Idea of Public Reason Revisited" (1997), the essay in which he otherwise widened the doctrine considerably. This essay argues that the line cannot be drawn where Rawls draws it, because the consideration that generates the duty does not stop there. The duty is generated by coercion. Ordinary legislation coerces. So either public reason extends downwards, roughly as Amy Gutmann and Dennis Thompson argue it should [3] , or the duty rests on something other than what Rawls says it rests on. A Rawlsian can deny this, and the last two sections say how. Three reasons Rawls gives for the line Rawls does not draw the boundary arbitrarily, and the reasons are worth separating. The first is urgency. Constitutional essentials are of a different order of importance; a society that gets them wrong is not merely badly governed but unjust in its foundations. The second is identifiability. Whether the equal basic liberties are secured is something citizens can check. Whether a particular subsidy is just is a question on which reasonable people will not even agree about what would count as an answer. The third is the prospect of agreement. Rawls thinks agreement on constitutional essentials is attainable in a way that agreement on the whole of legislation is not, and that a doctrine which demanded the latter would be demanding something that cannot be had. The duty is generated by coercion, not by importance Now set those reasons beside Rawls's own account of why the duty exists at all. The liberal principle of legitimacy, stated in the fourth lecture, holds that the exercise of political power is proper only when it accords with a constitution whose essentials all citizens as free and equal may reasonably be expected to endorse. The criterion of reciprocity, which Rawls treats as the heart of public reason, requires that when I propose terms of cooperation I sincerely think you could accept them consistently with your standing as my equal. What triggers both is the fact that political power is coercive and that the people coerced are equals. That is the whole engine. And it runs at every level of legislation. A statute fixing the level at which a family loses its housing benefit is backed by the same police and the same courts as a constitutional guarantee. It is not less coercive for being less fundamental. If reciprocity is owed because I am about to have force used on you in my name, then I owe it on Tuesday's licensing bill as much as on the bill of rights. The three reasons Rawls gives do not close this gap, and it is worth seeing precisely why. Urgency shows that constitutional essentials matter more; it does not show that reciprocity ceases below them. Identifiability shows that compliance is harder to verify in ordinary legislation; a duty that is hard to verify is not thereby not a duty. The prospect of agreement is a prediction about what deliberation can achieve, and if it is right it tells us the duty will often go unfulfilled — which is a fact about our failures, not a boundary of the obligation. None of the three is of the right shape. They are reasons for expecting less, not reasons for owing less. The territory below the line Gutmann and Thompson press exactly this — in Democracy and Disagreement (1996 [4] ), where the terms are introduced, and again in Why Deliberative Democracy? (2004) — and their target is what they call middle democracy: the ordinary legislative and administrative decisions that constitute most citizens' actual experience of being governed. Their principle of reciprocity is not confined to a class of foundational questions; it applies wherever binding collective decisions are made. They accept a consequence Rawls resists, namely that moral reasons drawn from a citizen's wider convictions may enter political argument provided they are offered in a form the other side could weigh, and they add a further requirement Rawls has no equivalent of: the economy of moral disagreement, which asks citizens to defend their positions in whatever way concedes as much as possible to the views they are rejecting. Jürgen Habermas arrives at a comparable place from a different direction [5] . In Between Facts and Norms the test for a valid norm is whether all those affected could accept it in a discourse; the test is not indexed to a special class of constitutional questions, and the deliberative flow he describes runs from the informal public sphere through to particular legislation. Habermas and Gutmann and Thompson disagree about much, but neither has the structure Rawls has here, in which a justificatory duty switches off partway down the statute book. A case that sits on the line Indonesia furnishes a case that shows how odd the boundary can be. The first principle of the Pancasila, written into the preamble of the 1945 Constitution and echoed in its article on rel