I really enjoyed Kevin’s recent discussion of the ‘contraception mandate,’ particularly because his posts highlight a deep and important divide in political philosophy that I think merits attention. Kevin sketches the following view about whether a law is justified:
“(The) principle of public justification (PPJ) …holds that a coercive law L is only justified if members of the public have sufficient reason to endorse L …(PPJ) is typically combined with the claim that freely reasoning individuals will tend to disagree rather than agree about life’s most important questions.”
As Kevin points out, Rawls and Gaus also affirm this principle. For simplicity, I will call this view political liberalism, though I recognize that there is disagreement within this camp and not all people who affirm it endorse Rawls’s view full-stop.
Political liberals hold that it is only permissible to coercively enforce a policy if those subjected to the policy have reasons to accept it given their public culture or commitments that they already affirm in their own religions or conceptions of the good. Of course we don’t need to consider everyone’s reasons, because some people just want to impose their religions or conceptions of the good on everyone else, those people aren’t looking for mutually acceptable rules that we can all live with. These people are called unreasonable (where this is meant as a technical term, but maybe also as a dig).
Importantly then, political liberals are not making an epistemic claim. That is, the idea is not that it’s hard to figure out the right policy so we should be especially wary of implementing policies that are deeply offensive to people. Political liberals do not think that the wisdom of the crowd is particularly likely to hit upon the right theory of justice. Nor is the idea that we should respect disagreement because the cost of enforcing a just policy is simply too high (though I think this is what motivated Rawls fwiw). Instead, the idea is that facts about the right policy depend on what reasonable people actually accept or reject.
While I truly admire all these philosophers’ work, I am not a political liberal. For one thing, I find Richard Arneson’s responses (PDF) persuasive. Responding to Gaus, Arneson points out that however we conceive of ‘reasonable citizens’ political liberals run into trouble:
- If we consider what policies an idealized, fully informed, reasonable, and rational person would accept, then the problem of disagreement disappears because such agents would all rightly perceive the principles that are in fact best supported by reasons.
- If we do not require full information, reasonableness, and rationality, the same considerations that entitle policymakers to discount the views of the grossly misinformed and unreasonable (wherever we draw this line) also tell in favor of discounting the views of reasonable citizens who are mistaken about what justice requires.
And so the politically liberal middle-ground between full idealization and actually consulting everyone seems untenable.
At this point the reply from political liberals tends to be that it is itself unreasonable to discount the problem of disagreement and go with (1). We all think we know the truth about what justice requires, they allege, but it’s wrong to impose that truth on people who disagree. If it’s unreasonable to choose a just policy over an unjust policy though others disagree, then I guess I am defending unreasonableness. Yet intuitively, this objection only succeeds against people who are in fact wrong about what justice requires. Since we aren’t all wrong, (or if we are, some are more right than others,) some of us are justified in behaving ‘unreasonably.’ To take a bizarre example from Gaus’s own work, it would not have been wrong to coercively prohibit genocidal warfare among Alaskan Eskimos even if, as Gaus claims, none of the Eskimos themselves in any way affirmed that genocide is wrong. Because of course, genocide is in fact wrong.
Further, as my friend Ryan Davis has recently argued (PDF), siding with the reasonable-but-mistaken against the just is still a form of taking sides. Political liberalism trades the ‘tyranny’ of the moral law for the tyranny of a mistaken-but-reasonable mob. Ryan writes:
“It is common for those individuals who control the organs of political power to insist that with their power comes an entitlement to coerce others, even to coerce others unjustly—so long as they stay within certain limits. All too often, there is little we can do to stop them. And even when we can stop them, the costs of doing so are often unbearable. We may not be able to put an end to injustice itself, but we can at least expose it for what it is.”
Any time we accept anything less than justice out of respect for ‘reasonable disagreement’ we accept the coercive enforcement of an unjust policy.
Finally, I think that this account of reasons gets the direction of fit wrong between reasons and truth. Political liberals seem to think that a principle of justice depends on whether people think they have reasons to affirm or comply with it. Instead, I think that people should comply with a principle of justice if it is best supported by moral reasons. This doesn’t commit me to denying internalism about reasons or anything like that. It just commits me to the plausible view that we have better reasons to comply with certain principles. If a policy really is just, then that is a reason to adopt that policy whatever people might mistakenly think.
Now, notice that this didn’t get us very far. We still disagree about justice and I haven’t said anything here about what the true theory of justice requires. All I’ve tried to show is that whatever the truth is about justice, disagreement doesn’t undermine those truths. If justice requires a minimal state, the fact that a lot of people would find that disagreeable is no strike against the minimal state. If justice required communism, though I doubt it- same story.
So when we ask whether a policy is permissible, instead of asking whether any reasonable people might disagree, we should ask whether the policy is the right one. For example, the problem with the contraception mandate is not that a lot of reasonable Catholics think it’s wrong to use or provide contraception. If the mandate is unjust it is because either a) Catholics are right and it actually is wrong to provide and use contraception or b) employer-provided health care is unjust for some other reason, e.g. it violates liberty of contract. I think (b) is true, but then contraception is not unique in this respect.
To sum up, when we question the justice of any given policy, instead of pointing to people who loudly disagree, we should instead ask whether the policy is best supported by reasons.