John Rawls was a critic of libertarianism. This much is well known. What is less well known is Rawls’s criticism of libertarianism in Political Liberalism (which I’m rereading in preparation for a seminar I’m teaching this fall). The only direct discussion can be found in Lecture VII, “The Basic Structure as Subject,” section 3, “Libertarianism Has No Special Role for the Basic Structure.”

I. The Basic Structure of Society

First some background. Rawls thinks that the subject of justice is a society’s basic structure, which he defines as follows:

By the basic structure I mean a society’s main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next (11).

A number of philosophers (among them Robert Nozick in ASU, Ch.7, Sec.II, “Macro and Micro” and G.A. Cohen in Rescuing Justice and Equality, Ch.3) have criticized Rawls for holding that principles of justice apply first and foremost to a society’s basic institutional structure rather than to the behavior of individuals. I will not pursue that line of criticism. My point is to familiarize you with the point that for Rawls the first (but not the only) subject of justice is a society’s political organization as a whole.

II. Libertarianism Has No Special Role for the Basic Structure

Rawls’s stated problem with libertarianism is that it has no role for the basic structure. After briefly describing Nozick’s position, he complains that the Nozickian sees the state “just like any other private association” (264) as the state arises in the same way as other associations. And even if the state has a unique origin and serves unique purposes, it still bears the same relation to individuals as any private corporation. As a result,

There is in general no uniform public law that applies equally to all persons, but rather a network of private agreements (264).

Rawls concludes from this that,

While the libertarian view makes important use of the notion of agreement, it is not a social contract theory at all; for a social contract theory envisages the original compact as establishing a common public law which defines and regulates political authority and applies to everyone as citizen. But political authority and citizenship are to be understood through the conception of the social contract itself. By viewing the state as a private association the libertarian doctrine rejects the fundamental ideas of the contract theory…. (255).

This passage is brief and a bit obscure. Now, the purpose of this criticism is to help illustrate the sense in which Rawls’s view employs the idea of the basic structure. But there is a criticism here, and I hope to make some sense of it before rebutting it. While many strands of libertarianism deny that there is or should be such a thing as a publicly recognized system of law that applies equally to all persons in the sense that persons in a society form a body politic, libertarian political theory as such need not. Instead, a libertarian political liberal reinterprets the body politic as a spontaneous order, in a sense I will explain below.

III: But What Is the Problem?

Let’s assume for the moment that principles of justice apply first and foremost to a society’s basic structure. That is, principles of justice evaluate and structure the economic, legal and political orders as a complex whole by determining which institutional rules should govern them. No libertarian heavily influenced by Mises, Hayek, Friedman or Buchanan need get off the boat here (though she is welcome to join Rothbard, Nozick and Rand in doing so).

If so, then the apparent problem with (Nozick-Rothbard) libertarianism is that it does not apply principles of justice to the basic structure. That is, the theory is too “micro” since it applies justice only to individual interactions. But that is plainly not Rawls’s main concern about libertarianism. His real concern is that libertarians cannot grasp the true social relationship between the individual and the political order (the state, for Rawls). The relationship between citizen and state cannot be proprietary. Instead, it is in some sense deeper. Following Rousseau and Kant, Rawls thinks that the implicit political ideals of a liberal democratic culture imply that the people relate to the state as a corporate, sovereign body. The people form a body politic. 

IV: What’s a Body Politic? Why Should We Want One?

Libertarians are bound to find this idea perplexing. But if you want to get the idea, just think about corporate organization. Rawls thinks the proper relationship between person and state is not the relationship between consumer and corporation but between board member and corporation. Citizens and the rules which govern them constitute the corporation. They form (albeit contractually) a corporate body.

Why conceive of the relationship between the state and the individual in this way? The answer is Rousseau’s – we’re looking for a form of social organization that both orders social life and expresses the will of the people. The political order preserves the freedom of the people by only imposing laws on the people that they have individual reason to endorse (which I read as the first formulation of the idea of public justification). The reason that person and state have a properly public relation is that such a relation is required for people to be genuine masters over the political order and so use the political order to express their freedom and promote the common good.

The obvious libertarian reply is that people can be genuine masters over the political order via the market and can use contracts to express their freedom and promote the common good. But Rawlsians think that libertarians miss the point. The Rawls-inspired political philosopher is most concerned with how the rules of political order acquire genuine moral authority, that is, why people should accept as moral the demands of the political order when such demands seem prima facie incompatible with the natural freedom and equality of persons. For the Rawlsian, following Rousseau and Kant, they could only have such a reason if they rationally impose the system of public law on themselves. They can only be both free and subject to the law if they self-legislate the law.

V: Libertarians Cannot Abolish The Body Politic By Abolishing the State

So here’s Rawls’s critique in a nutshell, I think: libertarianism is an inadequate political doctrine because it cannot solve the problem of the social contract – justifying the authority of the political order as an expression of the freedom and equality of persons – because it postulates the wrong relation between person and state.

Another obvious libertarian reply presents itself: Who cares about giving the political order authority? That’s bad! But this reply fails to recognize the even a market anarchist property order needs political authority in the sense that it must provide persons with reasons to comply with the property claims made by individuals. Thus, the question of political authority arises even in the absence of the state, a point the social contract theorists understood so well and that traditional libertarians understand so poorly.

It just won’t do to exclaim “Non-aggression principle!” when two people have a property dispute (please watch the Youtube video at the link). To be fair, all libertarians recognize that people will dispute the proper interpretation of private property rights in a free society. And they recognize the need for – at the very least – a polycentric, spontaneous order of arbiters to solve these problems. But the libertarian focus on such disputes is so narrow.

The great social contract theorists taught us that people have all sorts of moral and political disputes, not merely about the content and application of libertarian property rights. If we need (at least polycentric, consensual) arbiters to lay down authoritative interpretations of libertarian property rights, surely we also need arbiters to lay down authoritative interpretations of political and even more demands themselves!

Please, please, please don’t think that I am equating an arbiter with the nation-state. In my view, we need publicly justified arbiters but they can take many, conflicting forms. Courts, priests, spontaneously evolved social norms, signposts, traffic lights, insurance companies and friends can all serve as arbiters. My point is just that the traditional libertarian misses the need for such arbiters to create an authoritative moral system of norms.

The social contract theorists realized that declaring your interpretation of the moral law and acting accordingly was not enough to respect others as free and equal. If people really wish to treat others as equals, they must recognize others as exegetical equals, as equally entitled to interpret the content of the moral law. Even if some people are cognitively better interpreters, they have no natural authority to obligate others to comply with their judgments. Consequently, since all have an interest in having such disputes resolved in a respectful way, they are committed by their own moral views to submit their judgments to others in order to resolve a wide array of their disputes.

VI: Back to Rawls

Rawls faults libertarianism for failing to account for the need for authoritative moral and political arbiters when people disagree about what is right and good in life. Rawls thought that the best way to solve this problem is people to (rationally, not actually) constitute themselves as a public body which laws down laws for itself as a liberal democratic nation-state. We need some kind of publicly authorized state to have a publicly recognized set of rules that each person has reason to endorse if we are to solve the real, ubiquitous problem of how to justify political and moral authority in a world of free and equal people who reasonably disagree.

VII: The Libertarian Body Politic is a Spontaneous Order

I think Rawls was basically right about Nozick, Rothbard and their followers. For what its worth, I think the same criticism applies to Rand and even libertarian utilitarians. Utilitarians simply fail to grapple with the problem of moral authority because they do not recognize how fundamental it is to the content of morality (that’s why we should be contractualists).

But libertarians can easily respond to Rawls’s criticism by offering an alternative interpretation of the idea of the body politic as a supra-state (or anti-state) spontaneous order.

To see this, consider what it means for the public to recognize a common system of rules that applies to them all equally. Must they all engage in this process in the actual world, at once? No Rawlsian thinks so. The principles adopted by the body politic are those that make the best sense of our shared considered judgments, not ones that the actually adopt.

The problem I have with Rawls is that he thinks the body politic must be build around a nation-state’s constitutional essentials that embody a single liberal conception of justice (the most reasonable of which is his Justice as Fairness). But even Rawls admits that there are valid liberal conceptions of justice that differ from his. So long as a liberal conception protects basic liberties, gives them special priority over other considerations and provides sufficient all-purpose means it counts as a reasonable liberal conception that can be the object of an overlapping consensus. We can answer political philosophy’s fundamental question with a liberal political conception that is quite different from Rawls’s preferred view. We don’t need two principles, we don’t need an original position, we only need public recognition of a system of interlocking social institutions that institutionalize liberal political commitments. And such institutionalization can arise in a polycentric, emergent and consensusal fashion.

VIII: A Liberal Anarchist Body Politic – The Limit Case

Let me be (mildly) more concrete for a moment. Imagine a polycentric order, one where there is no nation-state that monopolizes the legislative, executive and adjudicative functions of government. Instead, this social order protects liberal basic rights and liberties via an interlocking and sometimes conflicting system of consensual public courts, some for-profit and some non-profit. Due to the lower transactions costs facilitated by a uniform legal code, a more or less public and uniform system of law emerges from the polycentric legal order. The law is publicly justified – each person has reason to endorse the laws to which she is subject, even though no legislature exists. Further, the law reflects the moral judgment of the body politic that certain liberal rights are to be protected and given effective priority over other social concerns. The effective power of the market order ensures the protection of these rights as effectively as a prone-to-abuse democratic nation-state.

Second, while no nation-state guarantees access to all-purpose means to ensure the worth of the basic liberties, the market system provides such extraordinary wealth that between markets and non-profits, everyone has reliable, effective all-purpose means available. Further, the moral order of this society is structured such that if some people fall below a decent minimum, protection agencies will slightly raise their prices in order to fund a UBI as a joint act of public good will.

I do not claim that such a society is politically feasible. For the Rawlsian, a political ideal has normative force so long as it is possible for the society to exist given the laws of political sociology and economics and that it can be stable for the right reasons. I assume that mainstream political liberals will deny that the society I describe can be stable for the right reasons, but only on the basis of their (in my view contentious) interpretations of social science.

IX: A Libertarian Society Has a Special Role for the Basic Structure

My point is simply that this largely market anarchist society has a special role for the basic structure. It has achieved an overlapping consensus on a liberal political conception that, while it protects thick economic liberties, satisfies Rawls’s conditions for a liberal political conception. The people as a body politic sustain a system of public law that protects basic liberties and ensures their worth, even though it employs less direct and more decentralized and consensual methods of provision. But surely the method of provision is not enough to undermine whether a society’s basic structure is well ordered, so long as the method if successful.

Rawls is right that traditional libertarian political theory has no special role for the basic structure in the sense that it postulates the wrong (private) relation between person and state. But I think he is wrong to think that libertarian political institutions cannot sustain the relevant public relation between person and state. The body politic can make judgments, sustain the public system of law and generate an overlapping consensus on a liberal political conception of justice through free, spontaneous order processes.

In sum, libertarians are right about which system of law is justified, and Rawls was largely right about how such a system of law must be justified.

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  • Martin

    Kevin,

    I think this is an interesting point you made here:


    But if you want to get the idea, just think about corporate organization. Rawls thinks the proper relationship between person and state is not the relationship between consumer and corporation but between board member and corporation. Citizens and the rules which govern them constitute the corporation. They form (albeit contractually) a corporate body.”

    There is a view in the corporate l&e literature that basically states that the decision-making power of the corporation rests with the board of directors. From Buchanan & Tullock, however we know that there is a trade-off between decision making costs and external costs. The more people or greater fraction of the total have to agree in a decision making the larger the costs to make a decision. Similarly, the more people or the greater fraction have to agree in a decision making process the fewer people will be disadvantaged by having to bear the costs for others.

    Now if we apply this logic to what Rawls is saying we can quickly come to the conclusion that Rawls talks about the structure of society of a tribe. In society consisting of millions of individuals the costs of having everyone on the board are prohibitively high relative to the external costs that could be imposed upon others. A better relationship within this analogy would be that everyone is a shareholder and a few are on the board and the question becomes one of constraining the board.

    One way of doing this, I think, is through competition for shareholders among the different corporations or as you said:

    “we only need public recognition of a system of interlocking social institutions that institutionalize liberal political commitments. And such institutionalization can arise in a polycentric, emergent and consensusal fashion.”

    • RickDiMare

      “A better relationship within this analogy would be that everyone is a shareholder and a few are on the board and the question becomes one of constraining the board.”

      I think you’ve got it right here. When looking at the structure of the U.S. government, we see that that it is truly built on the corporate platform, one that is fully public however, where there are no private shareholders and no marketable stock.

      U.S. citizens are in fact the owners/shareholders, who elect the board of directors (Congress), which body is constrained by the President and executive branch, as well as by the judicial branch.

      But the social contract with citizens/shareholders is also created by our link to the monetary system, over which the “people owned” Congress has ultimate legal control (though you’d never know it by how much influence the privately-owned Federal Reserve Corp. presently exerts over Congress).

    • http://www.facebook.com/les.nearhood Les Kyle Nearhood

      There is one other, older way to contain the potential of the board, that is to elect the board by a random lottery of the shareholders.

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    “even a market anarchist property order needs political
    authority in the sense that it must provide persons with reasons to
    comply with the property claims made by individuals”

    I think there are two errors there. But first a point of clarification. You must be talking about subjective reasons (i.e., reasons that the people in question themselves recognise as reasons), rather than objective reasons (i.e. true reasons that would be know by a being with perfect knowledge). Why? Because an objective reason is a reason for me only so far as I accept it as such.

    The first error is that having a (subjective) reason to comply with property claims has nothing essentially to do with political authority. We all have such reasons to comply with existing property claims: the disadvantages of not doing so.

    You may object that you meant to say: overriding moral reasons (of the subjective kind), not just any old reasons (of the subjective kind). But that would be the second error. For, we are ignorant and fallible, and we always will be. We can never achieve ‘justified’ knowledge of what the right institutional structure is. The best we can do is to improve whatever institutional structures we have. Life is learning and, in particular, it is moral learning. Whatever institutional structure we have, it is always open to us to try to improve it. And for as long as there is progress, there will always be people who have overriding moral reasons (of the subjective kind) for condemning the existing institutional structure.

    The attempt to establish ‘moral authority’ or ‘public justification’ for a particular institutional structure is not only doomed to failure; it would be appropriate only for a stagnant and closed society.

    • Kevin Vallier

      Public justification theorists only claim that relations of moral and political authority only obtain between persons when they have (what you call subjective, but most call public and some call internal) reasons. It does not take a stand on whether there are (what you call objective, but most call private and some call external) reasons as such. In my view, the best way to explain the truth of public justification theories is that we have objective moral reason to comply with a system of publicly justified moral authority because in doing so our natures as social beings are completed because we are reconciled with our fellow community members. So I think we have subjective and objective reasons for action.

      So with that said, I’m not sure I understand your other claims. Public justification theorists say that if property claims have authority, then we must have subjective reason to comply with them. That is, there must be subjective reasons to ground the duties we have to comply with such claims made by others. So pj theorists seem to take the view opposite of what you describe.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

        I am afraid I find your response baffling. I think perhaps the main problem is the mystifying use of the term ‘reasons.’ So let me try to state the issues without that obfuscating piece of philosopher’s jargon.

        We might be able to agree on this. There are various possible sets of social/moral rules. Some of these are better than others. What makes one set better than another is that, if it were implemented, people would have a better chance of achieving fulfilment. The best set of rules (in that sense of ‘best’) is the true one: the rules in that set are morally legitimate. Everyone therefore (objectively) has a duty to adhere to those rules.

        But I think we disagree on this. I say: we don’t know what that set of rules is and we will never know for sure. The best we can do is to improve our knowledge of which sets of social/moral rules are better than others. We do that by starting with the rules we have and trying to improve them. You, on the other hand, want to say that we can develop an a priori proof (a ‘public justification’) of which set of rules is the best. I think that is a non-starter. First because justification is simply impossible: the attempt is either circular or leads to an infinite regress. Second, because the sort of argument you use depends upon an authoritarian conception of rationality, according to which there are some moral principles such that anyone who denies them is being irrational (“we must have subjective reason to comply with them”).

        We also disagree on this. I say that the process of improving our knowledge of which sets of moral rules are better or worse is never-ending. However much we learn, there is always more to learn. There is such a thing as moral enlightenment, moral progress; and achieving it requires not only intellectual enquiry but also ‘experiments in living.’ You, on the other hand, think that we (or, rather, you) already know what the best system of social/moral rules is, namely the one ‘established’ by your a priori argument. That puts the block on any further moral progress; and that i find morally, as well as theoretically, objectionable.

  • Vern Imrich

    I think you gloss over a more important point in this exchange: “Rawls-inspired political philosopher is most concerned with how the rules of political order acquire genuine moral authority why people should accept as moral the demands of the political order…” And the counter of “Who cares about giving the political order authority? …even a market anarchist property order needs political authority in the sense that it must provide persons with reasons to comply with the property claims made by individuals.”

    There’s a huge difference between “authority” and “moral authority.” A libertarian reply is not “who cares about giving authority” but rather “who cares about giving moral authority?” Regardless of how authority arises, it is better to think of authority as something that just “is,” like a rock or a tree or gravity.

    It may be uncomfortable, but it keeps us honest to think of authority as
    amoral. The Social Contract is best thought of as a Social Peace Treaty. We abide the terms, we don’t agree to the terms in any moral contract sense (whether these terms are with the state or to a network of private entities, or to just one other arbiter in a dispute resolution). What your example video shows, is that there is no way to create ANY terms with authority that could be “agreed” to in a moral sense of contract – the morality of a contract can only defined AFTER (or within) a framework enforced by authority. So any attempt at moral justification of authority a’ priori would be circular.

    That’s why it’s so important to distinguish any authority mechanism from everything else where morality and fairness do apply. When we start to think that the same moral obligations we apply in free contracts somehow can also be applied to Authority we get into trouble. Authority is only really dangerous when we give it moral high ground.

    • MARK_D_FRIEDMAN

      Right, and well said.

  • http://independent.academia.edu/DannyFrederick Danny Frederick

    Here are some supplementary points.

    “The obvious libertarian reply is that people can be genuine masters over the political order via the market”

    That reply strikes me as far from obvious. In fact it strikes me as perverse. People are not masters over the social order via the market. The market ensures that none of us are masters over anything much. We have a very small span of control and our plans can be upset at any time by market perturbations (a sudden price rise or a change of fashion, for instance).

    “The Rawls-inspired political philosopher is most concerned with how the rules of political order acquire genuine moral authority”

    There can be no such thing as genuine moral authority. Anyone who claims to be such is a humbug. The ‘rules of political order’ are as they are, in some ways good, in other ways bad. Our challenge is to try to improve them. And that is always our challenge

    “They can only be both free and subject to the law if they self-legislate the law”

    But that is impossible except for small groups, and difficult even then.

    “libertarianism is an inadequate political doctrine because it cannot solve the problem of the social contract”

    Every political doctrine is inadequate by that standard.

    “we need (at least polycentric, consensual) arbiters to lay down authoritative interpretations of libertarian property rights”

    We don’t. We just need to find someone such that we can agree to abide by his judgement, even though we recognise beforehand that we might not agree with the judgement he makes. We agree to abide by it even though we concede that he might get it wrong. We might even just flip a coin.

    “the traditional libertarian misses the need for such arbiters to create an authoritative moral system of norms”

    The traditional libertarian is right: there is no such need.

    “Due to the lower transactions costs facilitated by a uniform legal code,
    a more or less public and uniform system of law emerges from the
    polycentric legal order”

    Wouldn’t people prefer to pay the higher transaction costs to get a legal code that suits them and their ilk? In general, markets work because they offer differentiated products (at premium prices) rather than a cheap-and-nasty ‘one-size fits all.’

    “protection agencies will slightly raise their prices in order to fund a UBI as a joint act of public good will”

    The customers of those protection agencies would probably switch to another agency, and rightly so.

    On a more conciliatory note, I think you are right that market anarchists have a place for ‘the basic structure’ and that they rate different possible basic structures as better or worse. They prefer open markets to socialism, for instance. But they should, and often do, see the basic structure as evolving and as open to improvement in response to changed circumstances, better knowledge and moral enlightenment. No one created the whole of the basic structure: it (or an earlier version of it) created us. None of us agreed to it all, though some might have agreed with some changes that have been made or that otherwise occurred. But none of us is bound to acknowledge its moral authority because it is always open to us try replacing any part of it with something better. In a free society, there will be competing entrepreneurs trying to do precisely that. And their customers need not (probably will not) think that the particular modification of the inherited structure that they have purchased is ‘morally justified’ or in any way ideal: it is just the most suitable (for them) of the options available.

    • http://www.facebook.com/les.nearhood Les Kyle Nearhood

      Good Reply Mr. Frederick, I find myself in agreement with most of your points.

    • Kevin Vallier

      “There can be no such thing as genuine moral authority.” First, this is just false. Suppose you promise me not to call me names. If you call me names, I have the moral authority to blame you for breaking your promise. That is, you have a duty to comply with my demand not to break your promise.

      Second, I think your attitude reflects a common sentiment not only among libertarians but among many autonomy-loving political theorists – that moral and political authority cannot coexist with freedom. One reason I think Rousseau is the bee’s knees is because he saw how to refute such a position, at least in the abstract. Probably my next post will cover, in more detail, why moral authority is important and how it is established.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

        There is an ambiguity here, Kevin. There seem to be three senses of ‘moral authority’ in play.

        1. Any property-owner has the moral authority to exchange his property for something else. We all have moral authority, in that sense.

        2. A moral authority is a person who knows (infallibly) the truth (or some of it) about moral matters.

        3. A rule has moral authority if it is legitimate, i.e., if it is a true moral rule.

        When you said, “The Rawls-inspired political philosopher is most concerned with how the
        rules of political order acquire genuine moral authority” it seems you are using ‘moral authority’ in the latter two senses. The Rawls-inspired political philosopher is concerned to justify a set of rules. That means he wants to do two things: to claim that they are legitimate (and thus have moral authority in the third sense) and to demonstrate their truth (and thus to authorise them in the second sense).

        I am not denying the existence of moral authority in senses 1 and 3; only in sense 2. But I did not make that clear in my message and I may, to some extent, have misinterpreted you.

        I understand the attitude that moral and
        political authority cannot coexist with freedom. But if ‘moral authority’ is meant in senses 1 or 3, the attitude is wrong. Freedom presupposes moral authority in the these senses. People must have the authority (sense 1) to make many decisions for themselves in order to be free. And if people have such moral authority, then the rules which demarcate it have authority (sense 3). But it does not follow that anyone is a moral authority in sense 2.

        I think you need to be careful of these different senses of moral authority, especially since positivistically-influenced philosophers (of whom Rawls is one) perpetuate a tradition of conflating senses 2 and 3. I think this may be part of Mark’s point (below).

        I look forward to your next post.

  • Joseph R. Stromberg

    Bakunin said that in the matter of shoe repair, he accepted the ‘authority’ of the shoemaker. Spanish jurist Alvaro d’Ors wrote that if a competent drama critic disrupts a play by shouting how bad it is, he is still the authority. The policeman who takes him out of the theater represents power. Both are correct in this instance.

    Power where it exists, ought to take the advice of authority. Authority (on d’Ors’s argument) ought never to have power as such. Of course this doesn’t always work out. Power claims to have (or be) authority and persons with authority (yes, moral authority) are tempted by power. Popes keep telling the Americans not to blow up the Middle East, and the Americans keep ignoring that advice. (And poor George Weigel tears his hair.)

    In the US political system there simply is no authority. The Supreme Court pretends to that role, but is really just a very small super-legislature.

    Social contract theory takes the fact that states exist and provides a nice rationalization about how they might have come to be, apparently in hopes of drawing up a list of good deeds that states ought to perform. I’m not sure this is any more helpful than those normative discussions (liberal, Randian, Catholic, etc.) of the state that begin, ‘The purpose of the state is to do X, Y, and Z.’ Often little attention is paid to whether or not states actually do these things, are very good at them, etc.

    As Felix Morley wrote, where concrete social contracts are actually found, the theorists tend to ignore them. Among other examples, he had in mind an agreement between thirteen already-existing political societies under discussion in the late 1780s. If the theorists even look into this case, they prefer to imagine that a bunch of *individuals* accidentally living in those political societies stand behind the document. This seems quite absurd, but it is at the heart of the American nationalist argument.

    Kathleen Nott has some unkind remarks about social contracts always amounting to a ‘pig-in-a-poke,’ Rawls’s included. Even so, Kevin has written a very intriguing piece. If he can produce a rationale for near-anarchist republicanism, I may sign up. (I would have said anarcho-republicanism, but we already have a lot of annoying neologisms.)

    I take the liberty of once again mentioning MacIntyre.

    • Kevin Vallier

      Joe, thanks for your comment. By authority, I mean a relation between persons, not an actual person. For John to have moral authority over Reba is for some subset of his dictates to impose obligations on Reba. On a public reason view, John has moral authority over Reba just when she has sufficient reason of her own to comply with the norm which his moral demand enjoins. It may well be that the process of public justification ultimately denies authority to those in power. In fact, I think it will almost certainly do so.

      As for social contract theories, I read them somewhat differently than what you describe. They’re not about describing a social process by which a state (or some other political order) comes about but about describing the terms in which coercive authority can be impartially justified. You can see some of that here: http://plato.stanford.edu/entries/contractarianism-contemporary/

      • Hume22

        Kevin, while I understand the conception of “moral authority” you use here, I wonder if confusion is generated by Gaus’ theory of social morality as a prescriptive practice. Does anything turn on the acceptance/rejection of prescriptive accounts of social morality? I think that people get confused by the use of “authority” in these discussions because they implicitly reject the prescriptive interpretation of moral practices, even if they accept your account of the concept of authority in the political realm (I find the Ladenson conception of legitimate political authority implausible).

  • MARK_D_FRIEDMAN

    Kevin,
    Building upon previous comments by Danny and Vern, it seems to me that the doctrine of “public justification” is inconsistent with the existence of an objective morality, i.e. the view (roughly) that there are facts about morality in the same way that there are facts about the physical universe. As shown in the history of both sceince and ethics, people can get these facts wrong for a very long time. Thus, at any point there may be very few moralists or scientists (perhaps only one) who have certain facts right (or at least possess the closest approximation to the truth).

    As I understand the concept of public justification it requires individuals to submit to the moral authority of some outside entity (the state, polycentric arbitrators, etc.), even when they are convinced that this opinion, even if held by the vast majority, is wrong. In other words, persons are required not just to obey such decisions on practical grounds (“somebody must decide or we will have a bad form of anarchy”), but to actually concede that their moral views are erroneous because they are so far outside the mainstream that they cannot be publicly justified. But since we have just noted that there are occasions where a single individual may be right (e.g. Pasteur, Einstein) and the rest of the world wrong. Your view of political morality therefore has (I think) the implication that people may legitimately be coerced to act wrongly.
    I believe this fact renders “public justification” totally implausible for those who acknowledge an objective morality, but it may seem correct to those who don’t. Am I wrong?

    • http://www.facebook.com/les.nearhood Les Kyle Nearhood

      The problem arises as to what is the objective morality, who gets to define it, and will the public agree to it.

    • Kevin Vallier

      (1) a public justification requirement actually supposes objective moral norms, in my view, largely because the requirement’s binding force is best explained by the fact that contractualism is true as a moral theory.

      (2) If people have personal defeaters for the demands made by others, then public justification theorists say that person can act on her own private judgment. That’s one of the cool things about such theories – if in your honest, informed, rational judgment you should not comply with John’s moral demand to X, then you are under no obligation to comply his John’s demand. If anything, the real threat of public justification is moral anarchy – a world where persons have no duty to comply with each other’s dictates.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

        It seems to me that your (1) and (2) contradict each other.

        According to (1): some moral norms are objectively true. Suppose that this is one of them: John has the right that you do not punch him on the nose. Then it is an objective fact that John has the right that you do not punch him on the nose. From which it follows that it is an objective fact that you have the duty to refrain from punching John on the nose.

        According to (2): if in your honest, informed, rational judgment you should punch John on the nose, then you have no duty to refrain from punching John on the nose. Let us suppose that in your honest, informed, rational judgment you should punch John on the nose. Then you have no duty to refrain from punching John on the nose.

        But the last sentence of the previous paragraph contradicts the last sentence of the paragraph before it. You can avoid this contradiction, it seems, only by maintaining that your honest, informed, rational judgment cannot be mistaken. But that seems megalomaniacal.

        So, what you say is either self-contradictory or megalomaniacal. Presumably, I have not understood you?

      • MARK_D_FRIEDMAN

        (1) I do not believe that contractualism recognizes objective moral norms as I defined them, i.e. that moral facts exist in the same way that scientific facts exist (which I believe is a very common understanding of “objectivity”). After all, you can have unanimous agreement on morality, yet everyone can be very wrong, just like we were all wrong about the cause of disease until Pasteur. However, if you wish to speak to only the thin sliver of people who embrace contractualism, then go for it.

        (2) I don’t think this responds to my point. If I am the only one in possession of the moral truth (or at least the closest approximation of it), by definition nobody else will think that I have a defeater. In fact, the majority will think me crazy. Someone or something must decide what is a “defeater.” That someone or something may be wrong, and then a person acting justly will legitimately (under your theory) be coerced. Include me out of that, please.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Mark, I don’t have Kevin’s expertise in this subject, so I wouldn’t guarantee that he would sign on to this analysis and analogy, but here’s a stab at answering your question.

      I don’t think the idea of public justification is incompatible with the existence of an objective morality. What it says is not that there is no objective morality, but that your *claim to know* what objective morality entails does not (in itself) license you to use coercion against others.

      Consider a religious analogy. Suppose that, objectively, God exists. And suppose that God really does speak to you, and tell you what He Wills. But he doesn’t tell anybody else. So now you know The Truth. Are you now entitled to go around coercing others on the basis of what God has told you? The principle of public justification will say no. You think you know The Truth. And as it turns out, you really do. But that fact by itself does not give you license to override the claims of others, who also think they know The Truth. Your *just happening* to be right is not enough. In order to legitimately coerce others, your coercion needs to be justifiable to them, and private messages from God aren’t capable of providing that justification. In the absence of justification, it will be illegitimate for you to do what is morally right.

      Is that paradoxical? Not really. Move from the interpersonal case to the intrapersonal one. Suppose you’re deciding how you should act. You have imperfect information, so you make your judgment on the basis of the evidence available to you. Because that evidence is incomplete, you’re led to an objectively wrong answer. It’s nevertheless possible that the (wrong) answer that you arrive at is the one that you rationally ought to perform, given your knowledge. It can be rational to act wrongly, and irrational to act rightly. This seems to me quite parallel to the interpersonal case in which it can be in certain cases legitimate to act wrongly, and illegitimate to act rightly.

      • http://independent.academia.edu/DannyFrederick Danny Frederick

        “In order to legitimately coerce others, your coercion needs to be
        justifiable to them…In the absence of justification, it will
        be illegitimate for you to do what is morally right.”

        The trouble is, this threatens to make it impossible to do what is morally right, because there will always be someone who doubts whether it is morally right.

        • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

          That will depend on what it means to say that your coercion has to “be justifiable” to them. I take it that the most theories of justificatory liberalism, and certainly the one to which Kevin is attracted, will say that coercion can in many cases “be justifiable” to some agent without that agent actually believing that it is justifiable. So justification involves something more than just pointing out that there is some external reason that applies to an agent, but something less than showing that something follows from whatever their subjective motivational set happens to be.

          • MARK_D_FRIEDMAN

            Thanks for the explanation, Matt. But, what you say here is (I think) exactly the problem I identified. As you say, under the “public justification” theory of political morality an innocent agent (one not employing violence, etc.) can be coerced “without that agent actually believing that it is justifiable.” But what if that agent is the only person (or a small minority) that has the moral facts right (or at least the closest approximation of them). This sole individual or small minority will not be able to articulate a “defeater” recognized by the vast majority because by hypothesis almost everyone else sincerely belives they are not just wrong, but beyond the pale. Thus “public justification” holds that it is morally permissible to coerce person(s) who are acting rightly. I continue to find this utterly implausible–although as I said above, people who believe that morality is a mere social convention, expression of subjective feeling, etc. will not have this objection.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            Yeah, I gather that much. But you must agree: that needs spelling out before we can see that it makes sense. It seems obvious that we can define ‘justification’ in such a way as to make it true; but we need more than a merely factitious sense of the word if the claim is to be of interest. I seriously doubt that any interesting claim of that sort is defensible.

  • http://www.facebook.com/les.nearhood Les Kyle Nearhood

    There is a whole lot here that I am probably not informed enough to understand. But it seems to me that The idea of a social contract in in no way alien to a libertarian structure. Perhaps for anarcho-libertarians, but not for most Libertarian thought. Nor is it obvious to me that the relationship between citizen and state should be deeper than those of other structures. Elevating the abstract idea of “the folk” when one is really talking about the state, has been the seed for much mischief in the past.

  • Joseph R. Stromberg

    Kevin,

    Granting that
    authority is relational, I’ve never seen much reason to believe that it inheres
    in the state. (I’m not imputing such a view to anyone here.) A state *might*
    act authoritatively (and justly), but we wouldn’t want to assume such a thing.
    If authority is *outside* the state, we will want to decide who they are who
    speak with authority. (I have some ideas on this but will leave them to one side.)

    Yes, the linked
    article is a good descriptive summary of the state of affairs in social
    contract theory, but I still have some problems with SCT as such. One has to do
    with processes. We get up one day and some well-meaning fellows come around and
    say: ‘Hurrah! We have instituted the perfect system. We think we have done this
    justly and we think the internal rules of the system are themselves just.
    *Therefore* any results of this system will also be just. The process justifies its output.’ And the machine
    goes of itself.

    (I am not suggesting
    that your ‘*process* of public justification’ is necessarily one of the
    instituted processes about which I am complaining. I don’t know enough about it.
    I take your view to be compatible perhaps with the notion that politics [of
    some sort] will still exist even under the closest possible approximation to
    statelessness. Gary Chartier would probably agree here.)

    Willliam F. Buckley,
    Jr. in his (brief) creative period, used to make fun of fifties liberals who
    argued that elections and democracy yield just outcomes [not with complete
    sincerity: American liberals had turned against the people in several stages:
    the 1870s, the Progressive Era, in 1939-1941, and in the early Cold War]. For a
    long time, I thought that another process (The Market) justified all its
    results. Now I’m not so sure.

    I admit to being
    influenced by the kind of Rousseau revisionism pioneered by Bertrand de
    Jouvenel. A key point runs as follows: If there is somewhere, in some bounded
    society, a form of self-government (complete with founding geniuses – or not),
    whose details we can ignore for now, there are still problems of scale. Beyond
    a certain point, ‘representation’ rears its ugly head (about 500 of them at our
    ‘national’ level) and self-government ceases to mean very much. Rousseau said
    that first the representatives seize hold of the system, but in the long run
    the executive reaps all the gains — hence the present American elective
    monarchy-dictatorship-whatever (see Posner and Vermeule (2011), who endorse presidential
    supremacy).

    But all that is just
    practical stuff. As far as the doubt of many libertarians ‘that moral
    and political authority cannot coexist with freedom,’ it would be interesting
    to see how you think Rousseau solved it. I would agree that moral authority has
    to underlie freedom; on political authority I am skeptical but willing to hear
    an argument.

    Libertarians tend to run away from the much-abused idea of
    the Common Good (because of the abuses). The best they can do is to propose
    some kind of additive substitute for it. This won’t do. This is one reason that
    some kind of minimalist republicanism has its attractions. (Alas, liberal and
    leftist embrace of republicanism breaks down as soon as they realize that an
    actually existing republic might not want the entire distressed population of
    another continent to move into their little city state. But immigration is
    never argued without name-calling, so I leave it lying on the floor.)

    Best

  • Hume22

    The more and more I re-read the mid-to-later Rawls, the more I become frustrated with almost everything he has to say, perhaps because I think his entire project of Kantian and “Political Constructivism” seems to be a farce, a long and bloated non sequitur. This is a feeling that I cannot seem to shake, It seems to me that everything important hangs on what is “fair”, and of course Rawls simply asserts what is “fair”, and this has nothing at all to do with constructivism, whether Kantian or Political (not to mention his question-begging presupposition that society is “closed”, non-voluntary, and self-sufficient). I think he is disingenuous (or completely ignorant/disconnected from reality) when he asserts that these ideas are implicit in the public political culture of constitutional (supposedly) democratic regimes.

  • vivek iyer

    ‘Rawls was largely right about how such a system of law must be justified’. But laws can work even if they are totally opaque but stochastically predictable. How can a stochastic process be part of Public Justification discourse? But since, as a matter of experience, Laws attract adherents, jurisdictions and mechanisms of enforcement even when the decision procedure is known to be purely stochastic- even if the underlying probabililty distribution is not known- clearly Public Justification is some sort of frill or add on which has nothing to do with ‘basic structure’.
    It exists only for the benefit of people who dabble in it- few if any of whom have any power, persuasive force, or even opinions or arguments relevant to real world issues. The thing started off as a Credentialized Academic Availability Cascade- often instrumentalized for the specific purpose of Preference Falsification- and is now spreading into the no less ineffectual and futile world of the paperback Pundit and blogospheric bloviator.
    This post, unlike some I’ve seen on places like Crooked Timber, is a model of clarity and I personally found it educational. Still, I don’t get why PJP is getting an easy ride. It’s a fundamentally ridiculous proposition.

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