Deliberation as an Adjustment Mechanism for Democratic Legitimacy — Epoche B2
Public Reason Tests the Argument, Not Whether It Was Heard A question the exclusion debate leaves untouched Most criticism of Rawls's public reason asks the same question [1] : is it too restrictive? Does it shut religious citizens out of political argument [2] , and can a liberal society afford to? The question has been worked over thoroughly, and Rawls's answer, in the form he settled on, is that comprehensive doctrines may be introduced into political discussion at any time, provided that in due course properly political reasons are supplied to support whatever was advocated. Whether that answer succeeds is not the subject here. This essay is about a deficit the exclusion debate cannot register, because it appears after admission has been granted. A citizen may be entitled to speak, may speak, and may be understood, and still be unable to make their reason count. Rawls's test of legitimacy is a test on the content of reasons; it asks whether what is offered is the sort of thing all citizens could reasonably be expected to endorse. It contains nothing that measures whether the offer was taken up, or who bore the cost of putting it into an acceptable form. James Bohman's Public Deliberation [3] : Pluralism, Complexity, and Democracy (1996) names the condition in which citizens are formally included and practically unable to influence outcomes: political poverty. My claim is that political poverty, not exclusion, is the defect that a legitimacy test built as Rawls builds his cannot detect, and that the case which shows this most cleanly is one where the doctrine was admitted and the citizens still lost the argument they were making. What the test measures Rawls's liberal principle of legitimacy ( Political Liberalism , Lecture IV) holds that the exercise of political power is fully proper only when it accords with a constitution whose essentials all citizens, as free and equal, might reasonably be expected to endorse in the light of principles acceptable to their common human reason. The duty of civility (Lecture VI) is the corresponding obligation on citizens: when fundamental questions are at stake, to be ready to explain how the policies they favour can be supported by political values. Notice what kind of test this is. It applies to a justification, considered as a piece of reasoning, and it can be run by anyone at any time on any argument. It is indifferent to who produced the argument. That indifference is deliberate and is one of the doctrine's virtues: a legitimacy standard that varied with the speaker's identity would be no standard. But it has a consequence Rawls does not draw. A political system can satisfy the test perfectly while a class of citizens contributes nothing to satisfying it — while their reasons are converted into acceptable form by others, on their behalf, and the conversion changes what was claimed. A case where the doctrine was admitted South Korea maintains conscription because its war has never formally ended. For decades, young men who refused military service on religious grounds were imprisoned, in numbers running to many hundreds a year; the overwhelming majority were Jehovah's Witnesses, whose objection rests on a scriptural prohibition against bearing arms. In 2018 the Constitutional Court held that the Military Service Act was unconstitutional in failing to provide any alternative form of service, and the Supreme Court acquitted an objector the same year. An alternative civilian service followed. This is a case of admission, not exclusion. Nobody prevented the objectors from stating their reason; they stated it repeatedly, at trial, over decades. Nor is it a case in which a comprehensive doctrine was barred from the forum. The doctrine was heard, discussed in the press, and eventually before the courts. What happened to the reason is the point. The claim that succeeded was not the claim the objectors were making. Their claim was that scripture forbids them to take up arms. The claim that won was that the state may not compel a citizen to act against conscience without offering an alternative — a claim about the freedom of conscience of individuals, which any citizen might make, and which is exactly the kind of political value Rawls's proviso calls for. The translation was performed by counsel and by the courts, and it was performed well. But it is a different claim. It does not say that the prohibition is true. It says that the objectors' sincerity is a fact the state must accommodate, which is a proposition the objectors could accept only as a description of their legal position, never as an account of why they refused. Rawls's test scores this outcome as a success, and by its own lights it is one. Political power was exercised in accordance with a principle all citizens could endorse. The objectors are no longer imprisoned. And yet the deliberative work was done for them, in an idiom that reframed their reason, and their capacity to participate in the reframing was close to nil — a small, doctrinally distinctive religious minority with no political representation and every incentive not to acquire any. Why the test cannot see it Nicholas Wolterstorff has pressed the general form of this complaint [4] : the restraint asks religious citizens to reason, in public, in a way that misdescribes how they actually reason, so that the price of admission is a misdescription of oneself. That objection is usually answered by pointing to the proviso — one may say what one thinks and add political reasons in due course — and the answer is adequate as far as it goes. The Korean case shows how far that is. The proviso governs what may be said. It says nothing about who can say it, whether anyone will respond, or what happens when a citizen cannot themselves produce the political reason their case requires. Bohman's category is built for exactly this gap. Political poverty, on his account, is not the absence of a right to speak but the absence of the capacity to init