PUBLIC JUSTIFICATION AND DEMOCRATIC ADJUDICATION

2007

Philosophical Perspectives, 2000

2019

2012

This paper deals with the connection between law and morality. Such a connection is relevant for political theory, since demonstrating that law necessarily implies a claim to justice would require fundamental rights to be considered the horizon of any legal system, instead of being considered as dependent on the axiological context of liberal democracies. The paper approaches the controversy starting from an overview of the work of the German philosopher Robert Alexy, in particular his attempt to establish an analytical link between law and morality, and to this end considers law as a speech act with a claim to correctness. It then examines the critique put forward by Joseph Raz, that points out the lack of objectivity of this claim to correctness. In order to establish a moral foundation for law, the paper argues that it is necessary to take account of Karl-Otto Apel's attempt to establish the transcendental foundation of language, as well as of Habermas' critique of that attempt. In conclusion, it is argued that the debate about a possible link between law and morality sheds new light on contemporary debates on liberal justification in political theory.

The paper discusses two ways to understand political liberalism. On the one hand, political liberalism may rely on the existence of an overlapping consensus among all reasonable comprehensive views present in our society. On the other hand, we may ground political liberalism on the moral value of equal respect for everyone. The dilemma between a factual identification of an overlapping consensus and a normative appeal to moral values arises at two levels. First, when we fill the content of our political conception of justice. And second, when we require impartiality to fill that content. In the former case, we may argue for a particular conception of justice through normative argument with moral premises, or our political conception of justice might be the area where all reasonable comprehensive views overlap. Similarly, we require that citizens offer impartial public reasons because this is what people holding different comprehensive views do think appropriate , or because they should consider it so. The author argues that we should define our political conception of justice through impartial normative argument, and that we should ground the demand of impartiality on the moral value of equal respect.

Journal of Political Philosophy, 2011

Why should one person obey another? Why (to ask the question from the first-person perspective) ought I to submit to another and follow her judgment rather than my own? In modern political thought, which denies that some are born rulers and others are born to be ruled, the most prominent answer has been: “Because I have consented to her authority.” By making authority conditional on the subjects’ consent, political philosophers have sought to reconcile authority’s hierarchical structure with the equal moral standing of governor and governed. Yet such consent accounts of authority have long been deemed problematic on a number of grounds, not the least of which is that few citizens have given their consent to the state under whose laws they live. So unless we are willing to deny the state’s authority over those who have not consented, or revert to the pre-modern assumption of a natural political hierarchy, we must find another way of reconciling authority with our standing as free and equal moral agents. In recent political and legal philosophy, the most influential solution to this problem has been Joseph Raz’s service conception of authority, according to which legitimate authority, while it does not require the consent of the governed, must exist for their sake, or serve them. The normal way to justify someone’s authority, on the service conception, is to show that, by treating her directives as binding, the subjects are likely better to conform to reasons that apply to them anyway. The service conception has, however, recently been criticized (by, among others, Thomas Christiano, Scott Hershovitz, and Jeremy Waldron) for being insufficiently attuned to the significance that procedural, and in particular democratic, features of political and legal institutions have for the justification of their authority. If these ‘democratic critics’ are right, then two commitments that many in the liberal-democratic tradition may find independently attractive turn out to be in tension: the liberal idea that authority is normally legitimate only insofar as it serves its subjects, and the democratic idea that legitimate authority can (and regularly does) rest on fair procedures. In this article I argue that the critics’ arguments rest on a misunderstanding of the service conception; yet their worries point the way to an under-appreciated and interesting view of democracy as an authoritative arbitration procedure. After introducing the service conception’s view of justified authority, I briefly distinguish a broad and a narrow interpretation of it, and suggest that we should embrace the latter to make sense of the idea that political authority serves its subjects (Section I). Next I turn to the objection raised by the democratic critics: the service conception, they say, cannot make room for the intrinsic fairness of democratic procedures because it is preoccupied with the quality of outcomes (Section II). But, I argue, the objection rests on an illicit identification of two different kinds of outcomes: the outcome of the decision-making procedure on the one hand, the outcome or result of treating that first outcome as authoritative on the other. Distinguishing between these is crucial for an adequate understanding of democracy’s authority. While the service conception is indeed organized around the latter, this does not commit it to an exclusive concern with the former; yet it is a singular commitment to the former that is problematic from a democratic point of view (Section III). To bring home this point, I sketch a model of authority as arbitration that is frequently overlooked in recent discussions of authority even though it is centrally concerned with procedural (and ultimately democratic) values and fits squarely into the service conception of authority (Section IV).

Philosophy in Review, 2011

Ratio Juris, 2001

Many liberals cannot help distrusting deliberative democracy theory. In their view, the theory offers no sufficient guarantee that the outcomes of democratic deliberation will be respectful of individual interests generating what they conceive as basic moral rights. The purpose of this text is to provide one argument showing that liberal rights are sufficiently protected within deliberative democracy theory. The argument does not rest on the idea of moral rights or material justice. It rests on the conditions of legitimate law deliberative democracy theory presupposes, namely, the conditions that make concrete the idea of legitimacy as “actual public justification.”

Journal of Political Philosophy, 2012

R ECENT philosophical discussion of the idea of public reason has focused mainly on two issues, namely, the plausibility of its standard of political justification and the feasibility and fairness of its demands on religious citizens. An even more basic question about public reason has, by comparison, received far less attention. How, and to what degree, are requirements of public reason binding on citizens? In short, what kind of moral requirements are they? Call this the question of public reason' s moral status. Rawls's writings offer almost no substantive guidance on the question of public reason's moral status beyond the repeated suggestion that requirements of public reason are duties of some sort-part of the so-called "duty of civility." 1 Rawls also makes the rather obvious point that the duty of civility is moral rather than legal, and so not enforceable by state power. But several more interesting questions and ambiguities remain. A first question is whether all of the requirements of public reason are aspects of the duty of civility. The initial definition of this duty in Political Liberalism states that citizens and officials should remain fair-minded in their deliberation and be able to explain their political advocacy and choice in terms of the political values of public reason. 2 Thus this initial definition does not refer to public reason's requirement of restraint. Yet it would seem from other passages in the text that the restraint requirement is supposed to have the same moral status as public reason's requirements of deliberation and political justification. 3 A second set of questions concerns the significance of the duty of civility, once its content is adequately specified. How much normative weight does the idea of public reason carry? How is its significance or weight affected by injustices and other nonideal social realities that are all too familiar features of existing liberal democracies? *Thanks especially to Micah Schwartzman and Bernard G. Prusak for helpful comments and criticisms. Instructive feedback was also provided by the Journal's referees and an audience at the 2010 International Social Philosophy Conference in Toronto. 1 John Rawls, Political Liberalism, expanded ed. (New York: Columbia University Press, 2005), especially pp. 217-8 and 444-5. 2 Ibid., p. 217. 3 Ibid., p. 219, citing the duty of civility and rejecting the view that citizens may vote solely on the basis of their comprehensive doctrines.