RECIPROCITY AND REASONABLE DISAGREEMENT: FROM LIBERAL...

DAVID A. REIDY

RECIPROCITY AND REASONABLE DISAGREEMENT:FROM LIBERAL TO DEMOCRATIC LEGITIMACY

ABSTRACT. At the center of Rawls’s work post-1980 is the question ofhow legitimate coercive state action is possible in a liberal democracy underconditions of reasonable disagreement. And at the heart of Rawls’s answerto this question is his liberal principle of legitimacy. In this paper I arguethat once we attend carefully to the depth and range of reasonable dis-agreement, Rawls’s liberal principle of legitimacy turns out to be eitherwildly utopian or simply toothless, depending on how one reads the ideal ofreciprocity it is meant to embody. To remedy this defect in Rawls’s theory,I undertake to develop the outlines of a democratic conception of legiti-macy, drawing first on Rawls’s generic conception of legitimacy in The Lawof Peoples and second on a revised understanding of reciprocity between freeand equal citizens. On this revised understanding, what free and equal cit-izens owe one another is not reciprocity in judgment, but reciprocity ofinterests.

1. INTRODUCTION

In A Theory of Justice (TJ) Rawls theorizes justice as ‘‘thefirst virtue of social institutions.’’1 And while he undertakesin that work to assess whether his proposed theory of jus-tice might prove stable in the right way over time onceinstitutionally embodied, he never undertakes to assess

David A. Reidy, J.D. (Indiana University-Bloomington), Ph.D. (Philosophy,University of Kansas) is Assistant Professor of Philosophy at the University of

Tennessee. He works in political philosophy and philosophy of law. He has pub-lished essays in journals such as Political Theory, Journal of Social Philosophy, ResPublica, Southern Journal of Philosophy, Public Affairs Quarterly, Polis, Journal of

Value Inquiry, Kantian Review, Economics and Philosophy, Legal Studies Forum, aswell as in various anthologies. He is the co-editor (with Mortimer Sellers) of Uni-versal Human Rights: Moral Order in a Divided World (Rowman and Littlefield,

2005) and (with Rex Martin) of A Realistic Utopia: Essays on Rawls’s ‘The Law ofPeoples’ (Blackwell, forthcoming 2005).

Philosophical Studies (2006) � Springer 2006DOI 10.1007/s11098-005-2216-6

whether in a society committed to his theory of justicecoercive political authority might be legitimately deployedin the name of justice. This latter inquiry is at the heart ofRawls’s work post-1980, culminating in Political Liberalism(PL). It is pushed center-stage, on Rawls’s own account,by the ‘‘fact of reasonable pluralism.’’2 In his post-1980work, Rawls aims to show that coercive political authoritymay be legitimately deployed in the name of justice evenunder conditions of reasonable pluralism. Rawls’s liberalprinciple of legitimacy expresses the conditions that mustbe met for it to be so deployed.

What I want to argue here is that the fact of reasonablepluralism, the very fact that led Rawls to theorize in closedetail the legitimacy of coercive political authority within aliberal state, undermines the plausibility of his liberal princi-ple of legitimacy, the principle meant to govern the legitimacyof coercive political authority in a liberal state. I begin with afew words about Rawls’s liberal principle of legitimacy andits relationship to the moral ideal of reciprocity which itembodies. I next present three special areas of deep, intracta-ble and reasonable disagreement within liberal polities. Theseareas of reasonable disagreement are special because the lib-eral principle of legitimacy depends on their resting beyondthe boundaries of reasonable disagreement. Together, theyprovide the basis for an initial case against the liberal princi-ple of legitimacy on the grounds that it is wildly utopian. Ofcourse, if the liberal principle of legitimacy is wildly utopian,then much, perhaps most, coercive state action in liberal poli-ties will be illegitimate on Rawls’s own view, both now andinto the future.

Since that is not an attractive conclusion to reach forthose with generically Rawlsian sympathies, I turn next toa potential defense of Rawls’s position. The discussion herecenters on an ambiguity in Rawls’s understanding of theideal of reciprocity, and accordingly his liberal principle oflegitimacy. The defense of Rawls’s position I examinemaintains that only if one adopts a particularly strongreading of reciprocity, and thus the liberal principle of

DAVID A. REIDY

legitimacy, does the latter turn out to be vulnerable to theobjection that it is wildly utopian, presupposing reasonedconsensus where there is, and likely will always be, onlyreasonable disagreement. On a weak reading of reciprocity,Rawls’s view is not similarly vulnerable. I reject this line ofdefense because there are good exegetical and philosophicalreasons for either attributing the strong reading to Rawlsor at least rejecting the claim that the weak reading alonecaptures his view. In any case, the weak reading is, Ithink, apart from whether it is Rawls’s view, unattractiveas an account of the moral ideal of reciprocity Rawlsmeans to invoke, or, in any case, less attractive than thestrong reading. The trouble for Rawls’s liberal principle oflegitimacy, then, is that it is undermined just exactly to theextent that we adopt the strong reading of reciprocity. Andthere are good reasons to adopt that reading, at least overand against the weaker alternative.

The upshot, I maintain, is that Rawls’s liberal principleof legitimacy is in trouble. It simply can’t withstand a care-ful analysis of reciprocity and reasonable disagreement. Butit doesn’t follow that one must set Rawls’s work to theside to theorize political legitimacy under conditions of rea-sonable pluralism. I argue that by drawing from other ele-ments within Rawls’s own work we might proceed towardan alternative and less problematic principle of legitimacy. Isuggest that we couple the generic account of legitimacyRawls offers in The Law of Peoples3 with an alternative,let us call it democratic rather than liberal, conception ofreciprocity between free and equal citizens under conditionsof reasonable pluralism. To distinguish this alternative fromRawls’s own liberal principle, I refer to it as a ‘‘democraticprinciple of legitimacy.’’ I do not mean to lay claim hereto anything more than articulating an alternative accountof legitimacy appropriate for a pluralist liberal democracythe elements of which are in some sense already present inRawls’s own thinking. That his thinking permits the articu-lation of such an alternative is, no doubt, a sign of itsenduring fecundity.

RECIPROCITY AND REASONABLE DISAGREEMENT

2. RECIPROCITY AND THE LIBERAL PRINCIPLE OF

LEGITIMACY

While there is little agreement among political philosophersregarding the demands of justice and legitimacy, there is nev-ertheless broad agreement that justice and legitimacy refer totwo different values a body politic ought to realize.4 Substan-tively unjust laws may be legitimately enforced within a par-ticular state. And a state sometimes may legitimately enforceits whole legal system notwithstanding the fact that it con-tains some number of substantively unjust laws or otherwisefalls short of justice taken as a whole.5 And, reversing mat-ters, legitimate coercive political authority must claim foritself more than substantive justice. A substantively just rulenot properly enacted or otherwise made law may not be legit-imately enforced. And substantively just laws may be legiti-mately enforced only within their proper jurisdiction; the lawsof Sweden, for example, cannot be legitimately enforced inthe United States.

In the ideal, of course, state action ought to be both legiti-mate and just. Legitimate state action ought always to aspireto and at least approximate full compliance with the demandsof justice. And coercive state action for the sake of justiceought always be legitimate state action.

But legitimacy and justice are not fully independent valuesfor Rawls. Rawls rejects not only Weberian accounts of legit-imacy, which appeal to the mere fact of acquiescence to coer-cion by a population, but also purely proceduralist accountsthat reduce legitimacy to procedural pedigree alone (mannerof enactment, etc.).6 The fact is, Rawls says, ‘‘[l]aws cannotbe too unjust if they are to be legitimate,’’ the merits of theirpedigree notwithstanding.7 Thus, while legitimate state actionmay be unjust to some degree, it must not be unjust by virtueof violating certain basic or bedrock standards of justice.

In TJ Rawls did not explicitly address the legitimacy of thecoercive authority deployed by a state faithful to his twoprinciples of justice.8 He focused there on setting out anddefending his two principles of justice, first simply as

DAVID A. REIDY

principles, but then as institutionally embodied, under theassumption that, once institutionally embodied, citizenswould share in a general consensus as to the merits of theprinciples as well as their philosophical and moral justifica-tion. Within this context, the legitimacy of coercive state ac-tion does not arise as a central concern. By the early 1980’s,however, Rawls came to see that in any society faithful to histwo principles, indeed in any free and open society, citizenswill forever reasonably disagree over comprehensive moral,religious and philosophical doctrines, as well as theories ofjustice.9 No longer able reasonably to assume the sort of gen-eral consensus he thought likely to be ushered in by the insti-tutional embodiment of his two principles, Rawls foundissues of legitimacy increasingly central to his project.

This is the fact of reasonable pluralism or reasonable dis-agreement.10 It is, Rawls insists in his later work, a factunreasonable to deny.11 It raised for Rawls a new question:How is legitimate state action possible in a society governedby the principles of justice as fairness when the citizens ofsuch a society inevitably and reasonably disagree over bothmoral, religious and philosophical doctrine and the merits ofjustice as fairness as a theory of justice? It would seem that insuch a society citizens would have no common ground fromwhich to collectively accept as legitimate any particular rule-governed political-legal order charged with securing justice asfairness or any other determinate conception of justice.12 Thisis the legitimacy problem. If freedom leads to reasonable dis-agreement over matters of religious, philosophical and moraldoctrine, as well as over theories of justice, how is legitimatecoercive state action possible in a free society? Or better, howis it possible for a free people to come publicly to regard aslegitimate their own state, even as they remain divided overtheories of justice as well as the moral, religious, and philo-sophical doctrines that typically undergird them?

As this question moved center-stage in Rawls’s thinking,the focus of his work in liberal political theory shifted fromjustice to legitimacy.13 Rawls gave his fullest response to thisquestion regarding the legitimacy of a liberal democratic


order in PL. Indeed, it would not be misleading to say that‘‘political liberalism’’ refers to Rawls’s theory of legitimacy,while ‘‘justice as fairness’’ refers to his theory of justice. Thetwo are intended, of course, to work together, expressing acoherent and complete political ideal for any body politic themembers of which regard themselves, politically speaking, asfree equals.14 But as a theory of legitimacy, political liberal-ism cannot and does not presuppose the singular correctnessof justice as fairness as a theory of justice (though, of course,Rawls remained cautiously confident that justice as fairnesswas the correct view, or more correct than available alterna-tives).

PL introduces several new ideas to Rawls’s overall politicaltheory.15 But the most important of these, other than the factof reasonable pluralism or disagreement itself, is Rawls’s lib-eral principle of legitimacy. This principle holds, to cite oneformulation, that ‘‘our exercise of political power is fullyproper only when exercised in accordance with a constitutionthe essentials of which all citizens as free and equal may rea-sonably be expected to endorse in the light of principles andideals acceptable to their common human reason.’’16 Thisprinciple, like justice as fairness itself (Rawls’s substantiveconception of justice), is rooted, on Rawls’s view, in the idealof reciprocity.17

Rawls uses ‘‘reciprocity’’ in two ways. The first we mightcall reciprocity of advantage. When persons interact with rec-iprocity the terms of their interaction are situated ‘‘betweenimpartiality, which is altruistic [because it entails the possibil-ity of self-sacrifice], and mutual advantage [which may be se-cured regardless of initial starting points or baselines forassessing advantage] (additions mine).’’18 Persons interactwith reciprocity when the terms of their interaction securemutual benefit from a starting point or baseline that isacceptable to each from a shared and appropriate moral pointof view. Reciprocity of advantage, then, is a particular appli-cation of a second and more fundamental sense of ‘‘reciproc-ity.’’ This we might call reciprocity in justification.Reciprocity in justification requires persons, when interacting

DAVID A. REIDY

with others, to limit the principles from and in accord withwhich they act to principles they are prepared in good faith tojustify to others from a shared and appropriate moral point ofview.19 Reciprocity of advantage simply expresses thedemands of reciprocity in justification when the relevantinteraction is cooperative.

What Rawls’s liberal principle of legitimacy says, then, isthat coercive political authority is legitimate when exercisedpursuant to and in accord with a constitution the essentialsof which satisfy the demands of reciprocity in justification,where the relevant common or shared and appropriate moralpoint of view is that of citizens as free equals, politicallyspeaking. It is here that Rawls builds substantive demands ofjustice into his conception of legitimacy. Legitimacy, ofcourse, requires that coercive state action be properly pedi-greed by virtue of its arising out of (and remaining in accordwith) established procedures. But it requires more than that.It requires also that those procedures themselves satisfy, intheir essentials at least, reciprocity in justification. And reci-procity in justification, here, Rawls insists, is not a merelyprocedural notion. It demands not merely justification to oth-ers on whatever terms they might happen to accept from anypoint of view they might happen to occupy, but rather a pub-lic justification to others from a common human reason onterms all sides could or do accept as free equals. A constitu-tion the essentials of which satisfy this demand for reciprocityin justification is just, at least in its essentials, to a degree suf-ficient to underwrite the presumptive legitimacy of coercivestate action pursuant to and in accord with it. Legislationand coercive state action pursuant to and in accord with sucha constitution, Rawls says, ‘‘would almost always be legiti-mate.’’20 Legitimacy may appear here to be primarily a mat-ter of procedure or pedigree. But that appearance ismisleading, since it is the justice of the procedure, of the con-stitution, that permits an inference to legitimacy from proce-dural pedigree alone. Of course, since no real worldconstitution, not even one that meets in its essentials thedemands of reciprocity in justification, can guarantee


legislation that is ‘‘not too unjust,’’ citizens must always beready to assess legislation not simply for legitimacy but alsofor justice.

By honoring, or striving to honor, the liberal principle oflegitimacy, citizens express to one another their mutualrespect as free and equal members of a common body politic.Coercive state action, the coercion of some by the collectiveall, is made legitimate by subordinating it to mutual respectbetween all. It is important to note here just what it is that isbeing respected, that demands respect, on Rawls’s view. It iseach citizen’s capacity for independent judgment regardingthe aims and limits of political action (along with much elsefalling under those headings). It is this that citizens mustrespect in one another as they endeavor to make together acommon body politic and shared political world.

3. LIBERAL LEGITIMACY, REASONABLE DISAGREEMENT

AND CONSTITUTIONAL ESSENTIALS

Under conditions of freedom, the exercise of this capacityfor independent individual judgment, Rawls insists, leadsinevitably to public disagreement, over matters of moral,religious and philosophical doctrine, as well as the demandsof justice. These public disagreements will persist over time,even among citizens of manifest good will, high intelligence,and a firm commitment to reasoned argument. They pres-ent a special challenge. Citizens committed to respectingone another’s capacity for individual judgment must recon-cile themselves to and find ways to accommodate the exis-tence of such disagreements, at least in political life. To dootherwise would be to deny at least some citizens therespect they are due. And this would be, on Rawls’s view,unreasonable, or an unreasonable response to the existenceof such apparently intractable public disagreements. Themore reasonable path, the path of mutual respect betweencitizens, Rawls maintains, is to affirm the ‘‘fact of reason-able pluralism’’ as a permanent fact of any free and open

DAVID A. REIDY

society, and to accept this fact without resentment or anxi-ety.21 Liberal legitimacy begins here. On Rawls’s view, itrequires a constitution the essentials of which satisfy thedemands of reciprocity in justification between citizens rea-sonably divided over many of their most important beliefsand commitments. Only if their constitution in its essentialssatisfies reciprocity in justification will citizens have reasonto regard coercive state action pursuant to and in accordwith it as consistent with respect for their individual capac-ities for judgment and thus presumptively legitimate.

To satisfy the demands of reciprocity in justification amongcitizens who regard themselves as free and equal, politicallyspeaking, a constitution must be at least generically liberal,on Rawls view. Rawls identifies three things a generically lib-eral constitution will do. First, it will specify and assign indi-viduals certain familiar rights or liberties and opportunities(for office, etc.). Second, it will assign the set of such rightsand liberties and opportunities priority over other familiarclaims on or by the body politic regarding the common goodor perfectionist ends. Third, it will commit the body politic tosecuring for all citizens adequate all purpose means to makeeffective use of the rights, liberties and opportunities assignedthem.22 The latter requirement need not, perhaps ought not,be part of a written Constitution on Rawls’s view. But as afundamental matter of generic liberal justice, it remains aconstitutional essential in the ‘‘small ‘c’’’ sense of constitu-tion.23 To these three requirements of a generically liberalconstitution we may add a fourth. A generically liberal con-stitution must commit itself, in at least the ‘‘small ‘c’’’ senseof constitution, to the fact of reasonable disagreement. Thatis, it must embody a commitment to full political respect forand between those reasonably divided over matters of moral,religious or philosophical doctrine, or over one of any num-ber of possible (generically liberal) reasonable conceptions ofjustice. That this is Rawls’s view is perhaps most clearlyrevealed by his commitment to ‘‘neutrality of aim’’ as a fun-damental norm essential to any generically liberal constitu-tional regime.24


Citizens and officials committed to such a constitution willstill reasonably disagree over a great deal when it comes toissues of political and social justice. They will disagree, forexample, over the merits of particular conceptions of jus-tice.25 Further, even those who share a particular well-definedliberal conception of justice will often reasonably divide overits articulation and development through particular laws andinstitutions. These ordinary political disagreements Rawlsregarded as properly resolved through constitutional demo-cratic procedures. That a generically liberal constitutionalorder requires some form of constitutional democracy followsmore or less straightway from the generically liberal commit-ment to the priority of a system of equal, basic, and familiarliberties, including political liberties, over the other demandsof justice. Rawls recognizes generally two kinds of regimes asconsistent with his two principles of justice: a property-owning democracy and a liberal democratic socialism.26

Democracy is, at least for Rawls here, to be understood con-stitutionally rather than procedurally. That is, in neither aproperty-owning democracy nor a liberal democratic socialistregime is democracy merely procedural. It is rather constitu-tional in the sense that it constitutionally commits the bodypolitic to, and itself embodies, certain substantive positionson justice, namely those ingredient in generic liberalism(including, for example, affording persons resources adequateto the exercise of their political liberties).27

That political decisions be reached through democratic pro-cedures is necessary but not sufficient for them to be legiti-mately enforced. Two other conditions must be met. First,the particular democratic decision procedure must be onethat meets the demands of reciprocity. It must, at least in itsgeneral structure, embody terms publicly justifiable from acommon human reason and shared and appropriate moralpoint of view. This is true of all constitutional essentials andthe general structure of democratic processes is itself a consti-tutional essential.28 Second, the democratic process must in-clude a commitment to the moral ideal of public reason. Thisideal expresses the demands of reciprocity in justification on

DAVID A. REIDY

citizens and officials in public political life. It cannot, ofcourse, be fully incorporated directly into the institutionalstructure of democratic procedures. There is no way throughlaw or institutional design to force fidelity to such an ideal.But it can be incorporated indirectly, via the ‘‘small ‘c’’’ con-stitution to which it belongs, as a moral (not legal) normgoverning both citizens and officials in their political judg-ment and voting and the Supreme Court in its exercises ofjudicial review.29 The legitimacy of any coercive state actionis always in part a function of fidelity on the part of citizensand officials to this moral norm. Where these two furtherconditions are met, Rawls reasons, democratic resolutions ofreasonable political disagreements will almost always yieldlaws legitimately enforceable.

Note here that it is not enough that some generic concep-tion of democracy satisfy the demands of reciprocity when itcomes to identifying a decision procedure for the resolutionof reasonable political disagreements. Citizens need (and needto embed in their constitution) a concrete, determinate andworkable decision procedure (not a generic commitment tosome form or other of democracy) for resolving their reason-able political disagreements. And they need one � a determi-nate democratic order � that meets the demands ofreciprocity; otherwise some will be able to resist as illegiti-mate (on Rawls’s own conception of legitimacy) the coerciveenforcement of political resolutions democratically reached,regardless of whether all citizens honor the ideals of reciproc-ity and public reason in their voting. Rawls’s liberal principleof legitimacy requires, then, not just that a generically liberalconstitutional order meet the demands of reciprocity, but alsothat the particular institutionally realized democratic decisionprocedure for resolving reasonable political disagreements doso as well.

So, in addition to (a) the fact of reasonable pluralism itselfand (b) generic liberalism, Rawls’s liberal principle of legiti-macy requires citizens to be able to meet the demands of reci-procity in justification also with respect to (c) a determinatedemocratic decision procedure for resolving reasonable


political disagreements. This is a tall order. Too tall, I fear.These are all matters over which citizens do now, and may forthe foreseeable future be expected to, reasonably disagree. Orat least that is what I shall argue. If I am right, then it wouldappear that either Rawls’s liberal principle of legitimacy is introuble, or legitimacy is just not something to be reasonablyhoped for in pluralist democracies like the United States. Nei-ther alternative is very attractive, though of the two the formeris more attractive than the latter. For it is possible to rejectRawls’s liberal principle of legitimacy and still argue, from analternative principle or conception of legitimacy, to the legiti-macy or potential legitimacy of coercive state action in pluralistdemocracies like the United States.

4. REASONABLE DISAGREEMENT: DEEPER AND WIDER

Reasonable disagreements are, on Rawls’s account, disagree-ments rooted not in some identifiable, reproachable and cor-rectable failure of rationality or reasonableness on the part ofone party or another to the disagreement, but rather in oneor another nonreproachable and ineliminable feature of orlimit on the free and collective exercise of human reason,even by persons of high intelligence and manifest good will,e.g., Aquinas, Bentham and Kant. These features or limits onthe free collective exercise of reason Rawls refers to as theburdens of judgment.30 Because of the burdens of judgment,reasonable disagreements, especially doctrinal disagreements,are to be expected in religion, morality and philosophy (andelsewhere) under conditions of freedom. Reasonable disagree-ments persist not because some individuals inevitably fail toreason soundly, but rather because the burdens of judgmentare a permanent feature of and limit on the collective exerciseof human reason, even when all individuals reason soundly.31

Since they may persist even when individuals reason soundly,they raise special problems for a political theory committedto an ideal of reciprocity in justification not raised by dis-agreements simpliciter.32

DAVID A. REIDY

This crucial point merits some further elaboration. ManyCatholics, Protestants, non-Christian theists, and atheists rea-sonably disagree over religious doctrine. What this means isthat their doctrinal religious disagreements are rooted in theburdens of judgment rather than in some necessary failure ofrationality or reasonableness on any of their parts. The bur-dens of judgment are burdens on the collective exercise of acommon human reason. They explain the persistence of rea-sonable disagreements between those reasoning soundly with-in a common human reason. So while all cannot finally havethe truth, all may reasonably affirm their religious doctrinesfrom within a common human reason. Catholics maycorrectly say to themselves: ‘‘Not only is my doctrine true orcorrect, but it is one that any reasonably intelligent and pure-hearted non-Catholic could accept merely through soundreasoning from within a common human reason.’’ WhatCatholics may not correctly say to themselves is: ‘‘The onlypossible explanation for why any others disagree with me andreject Catholicism is that they are irrational or unreasonableor both.’’ Because they cannot say this, Rawls maintains,Catholics must refrain, out of respect for their fellow citizens’capacities for individual judgment, from proposing or endors-ing principles of justice or positions on fundamental politicalissues tied exclusively to Catholic religious doctrine. To notso refrain would be to express disrespect for others and toviolate the ideal of reciprocity in justification.

4.1. Reasonable Second-Order Disagreements

The problem is that the burdens of judgment make reason-able disagreement ineliminable with respect to far more thanthe questions of moral, religious and philosophical doctrineRawls has in mind. Consider first the criteria we invoke whenmaking distinctions between simple and reasonable disagree-ments. It may be noncontroversial to describe as simple a dis-agreement over the conclusion to a purportedly deductiveargument when one party demonstrably fails to adhere tostandard rules of deductive inference. But this is just because


there is little disagreement at all over the standard rules ofdeductive inference. But suppose we have a disagreement overthe conclusion to an obviously inductive argument.33 Herewhether we describe the disagreement as simple or reasonablewill depend on what we take to be the correct standards ofinductive inference. But this is pretty clearly a matter overwhich people may and often do reasonably disagree. The bur-dens of judgment make possible, then, not only reasonablefirst-order or substantive disagreements, but also reasonablesecond-order or meta-disagreements about how exactly theline running between simple and reasonable disagreementsitself ought to be drawn.34

This same point may be made, of course, with respect toother criteria Rawls invokes to mark the line between simpleand reasonable disagreements. A disagreement is simple ra-ther than reasonable, for example, when it is best explainedby reference to a systematic bias or prejudice on the part ofone party or a dogmatic refusal to consider relevant evidence.But persons of high intelligence and manifest good will maythemselves reasonably disagree over when refused evidence isrelevant, or when a refusal to consider relevant evidence isdogmatic, or when a particular chain of reasoning is infectedby systematic bias or prejudice rather than, say, merely impo-lite generalizations or an overly cautious disposition. Thepoint here is not to call into question the distinction betweensimple and reasonable disagreements. The point is just thatthe line marking the distinction is itself a matter of reason-able disagreement.

Consider next the fact of reasonable pluralism. Rawlsregards this fact as a permanent fact in any free and opensociety. But he allows that with respect to science, humansseem able through the free, public and collective exercise oftheir reason to overcome the burdens of judgment and arriveat well-reasoned doctrines, increasingly complex and com-plete, from which dissent is simply unreasonable. But this rai-ses a question: If we can so overcome the burdens ofjudgment in the free, public and collective exercise of our rea-son in the domain of science or natural philosophy, why then

DAVID A. REIDY

are things different with respect to morality, religion andother domains of philosophy? If Rawls’s fact of reasonablepluralism is to qualify as a fact immune to reasonable dissent,then there must be an answer to this question that no citizencould reasonably reject.

To affirm the fact of reasonable pluralism as Rawls castsit, one must have in mind some plausible explanation of whythe burdens of judgment generate reasonable disagreementwith respect to moral, religious and philosophical doctrine,but not science. To have no plausible explanation of this is tofail fully to understand or affirm the fact of reasonable plu-ralism as Rawls casts it, leaving one with no clear basis fordistinguishing between reasonable and simple disagreements.Rawls grounds this distinction in the burdens of judgment.But they do not by themselves underwrite the distinction asRawls deploys it, since they are as applicable to doctrinalquestions in science as in morality, religion, and philosophy,and yet do not in science generate the same level of intracta-ble reasonable disagreement. So more must be said.

Two kinds of answer are possible here, but each isproblematic. The first insists that there are key differencesbetween science, on the one hand, and morality, religionand philosophy, on the other, differences that make a differ-ence when it comes to the ability of humans to overcomethe burdens of judgment in the collective use of their reasonin these various domains. While this is perhaps not implau-sible, it is hard to see how any account of such differencescould itself stand beyond the reach of reasonable disagree-ment.35

The second kind of answer urges that there only appears tobe a (but there really is no) great divide in how the burdensof judgment apply to science, on the one hand, and morality,religion and philosophy, on the other. But this means eitherthat the fact of reasonable moral, religious and philosophicalpluralism is not really (but only appears to be) a permanentfact under conditions of freedom (and would perhaps there-fore be better described as a fact of modernity),36 or thatscience is not really (but only appears to be) generating


doctrinal consensus not open to reasonable dissent. Both ofthese alternatives raise problems for Rawls’s view.

According to the former, the fact of reasonable pluralism isa temporary and historically bounded rather than permanentfact of a free and open society. It is a fact about modernityrather than inevitable product of the free public exercise ofhuman reason. According to the latter, doctrinal consensus inscience is only apparent. It is the result not of scientists over-coming the burdens of judgment, but rather of their beingdriven by other burdens external to the reasoning process(e.g., institutional forces and incentives privileging consensusand thus consensus-generating methods of inquiry). Absentthese additional burdens, science is as likely to terminate inintractable reasonable doctrinal disagreement as morality,religion or philosophy. Affirming either of these understand-ings of the fact of reasonable pluralism would require sub-stantial revisions to other elements in Rawls’s theory. Theformer would limit the reach of his ideals of public reasonand liberal state neutrality to a particular historical momentin a free and open society and to invite hope for the daywhen reasonable doctrinal disagreement is a thing of the past.The latter would exclude or potentially exclude a great dealof scientific doctrine from the content of public reason in anyliberal democracy.

It would appear, then, that there is no particular under-standing of the fact of reasonable pluralism that is not likelyto be reasonably rejected by some significant number of citi-zens. But it might be objected here that so long as citizens allaffirm the fact of reasonable pluralism as Rawls understandsit, it is beside the point whether they do so for one and thesame reason or for any reason beyond the reach of reason-able disagreement. Of course, the chances of citizens affirm-ing the same or nearly the same content named by the fact ofreasonable pluralism while substantially disagreeing over itsexplanation would seem remote at best. Different explana-tions lead inevitably to different content. The fact of reason-able pluralism is permanent or it is only our temporarycondition. It doesn’t reach to scientific doctrine or it does.

DAVID A. REIDY

It reflects fundamental metaphysical or epistemological differ-ences in our relationship to the natural world, on the onehand, and to ourselves, the world of values, and the divine,on the other, or it does not. For the fact of reasonable plu-ralism to play for Rawls the theoretical roles he assigns it,citizens must affirm roughly the same content when theyaffirm it. But this they’ll likely do only if they all affirm it forroughly the same reasons. Thus, Rawls owes us an accountof what these reasons are and why it would be unreasonablefor any citizen to reject them.37 But here he points only tothe burdens of judgment. That may be the right way to startthe story. But the story remains incomplete.

A critic here might argue that it is unfair to criticize Rawlsfor not having an explanation of the fact of reasonable plu-ralism that no reasonable citizen could reasonably reject.38

After all, even if Rawls had such an explanation, it wouldremain possible to call for its explanation, and again onterms no reasonable citizen could reasonably reject, and soon indefinitely in an infinite regress. But the criticism ofRawls is not unfair. It is Rawls who affirms reciprocity in jus-tification as a foundational moral norm for a liberal demo-cratic people. And it is Rawls who regards that norm as fullysatisfied only when citizens are able publicly to defend theirconstitutional order from a common human reason andshared moral point of view. Since Rawls set the standardhimself, it is not unfair to point out that it is a standard thatcannot be met.

4.2. Reasonable Disagreement and Generic Liberalism

The fact of reasonable pluralism or disagreement is not theonly area where Rawls problematically underestimates theextent of reasonable disagreement. His liberal principle of legit-imacy depends also on citizens arriving at a reasoned overlap-ping political consensus over an at least generically liberalconception of justice. But is it really plausible to claim thatfrom the shared moral point of view of citizens as free equalsthere can be no reasoned dissent from generic liberalism, that


while citizens may reasonably dissent from this or that liberalconception of justice, they cannot reasonably dissent from oroppose the family of generically liberal conceptions?39

To be sure, not all dissent from generic liberalism is rea-sonable. Nazi dissent is not reasonable. It simply rejects theliberal democratic starting point of citizens as free equals.But what of Marxist, communitarian, libertarian and otherapparently more reasonable forms of dissent? Insofar asMarxists, communitarians, libertarians and other such dis-senters reject generic liberalism, Rawls is committed toregarding their dissent as unreasonable, even if not quite asunreasonable as Nazi dissent. The dissent of Marxists, com-munitarians, libertarians and the like is unreasonable not inthe radical sense that each rejects the ideal of citizens asfree equals, but rather in the sense that each makes a simplemistake at some point along the way to an adequate con-ception of justice. Marxists and communitarians mistakenlygive priority to the good over the right. Libertarians mistak-enly make transactions rather than the basic social structurethe first subject of justice.40 Because these are simple mis-takes, the dissent to which they lead is unreasonable andneed not be accommodated.

Of course, it still makes sense to distinguish unreasonableNazi dissent from unreasonable libertarian dissent. The Nazidissenter rejects generic liberalism wholesale and from theroots. The libertarian dissenter, on the other hand, is morelike a prodigal son. It remains possible that through contin-ued conversation and imminent critique he might be broughtto see his simple mistake and easily be brought back into thefold of the generically liberal family.41

But how can it be that the disagreements between liberalsand critics over the priority of the right over the good orover the basic social structure as the first subject of justice aresimple rather than reasonable disagreements? These are pre-cisely the sorts of disagreements one might expect, given theburdens of judgment, to saddle persons of high intelligenceand manifest good will in political life. Hayek and Nozick arenot simply mistaken to reject the basic social structure as the

DAVID A. REIDY

first subject of justice. Their libertarian dissent cannot bedismissed as simply unreasonable. MacIntyre, Hauerwas,communitarians, Christian and liberal perfectionists, andMarxists are not simply mistaken to reject the priority of theright over the good and with it the priority of basic rightsover other claims concerning the common good. Their dissenttoo cannot be dismissed as simply unreasonable.

There is something powerfully counter-intuitive aboutRawls’s view here. Isn’t it more plausible to regard the sortsof dissent just mentioned as arising out of reasonable dis-agreements? These disagreements may center on how tounderstand or interpret the moral ideal of free and equal citi-zens securing fraternity or solidarity through shared member-ship in a body politic that is just and good, or on how tounderstand historical and social scientific data relevant to anyassessment of generic liberalism � data bearing on the rela-tionship between private ownership of the means of produc-tion and democratic freedom, or a state’s aspiration to apatterned theory of distributive justice and tendency to devel-op into an oppressive bureaucracy, or the effects of a cultureof individual rights on the ability of individual persons torealize their own good. If these are the roots of libertarian,communitarian, Marxist and similar lines of dissent fromgeneric liberalism, then it is hard to see how Rawls couldregard these as anything other than expressions of reasonabledissent. Their origin lies in just the sort of disagreement likelyto divide persons of manifest good will and high intelligenceas they search for a shared conception of justice. But thengeneric liberalism is not beyond the reach of reasonable dis-agreement.

4.3. Democratic Institutions and Reasonable Disagreement

Consider finally questions of democratic institutional design.Democratic institutions are required and justified, on Rawls’sview, both by the ideal of citizens as free equals sharing infinal political authority over the basic structure of their soci-ety and by instrumental concerns to secure in regular and


reliable ways just or nearly just outcomes through politicaldecision-making processes. This seems right so long as wethink of democratic institutions generically. But recall thatwhat Rawls’s liberal principle of legitimacy requires is a rea-soned consensus over a particular and determinate demo-cratic constitutional order. This seems unlikely.

Surely citizens may reasonably disagree over which deter-minate design for democratic institutions is most or even ade-quately faithful to the ideal of their sharing as free equals infinal political authority over the basic structure of their bodypolitic. How to design democratic institutions so as to cap-ture this moral conception of citizenship is a matter thatturns on both how one orders and develops highly abstractvalues and how one settles complex empirical questions, andthus a matter to which the burdens of judgment paradigmati-cally apply and with respect to which we ought to expect rea-sonable disagreement. Citizens who reject winner-take-allconceptions of democracy in favor of proportional represen-tation, for example, may do so on the grounds that only thelatter adequately embodies the ideal of citizens sharing as freeequals in final political authority over their body politic. Orthey may insist that winner-take-all conceptions are reason-able only if coupled with prohibitions on gerrymandering vot-ing districts to diminish the electoral impact of minorities. Or,to invoke another example, those who demand publicly fun-ded elections may reasonably think public funding of elec-tions so essential to the institutional realization of democraticideals, especially where wealth inequalities are massive, thatthey are prepared to reject any democratic order that doesnot include public funding of elections. Against all these crit-ics of the status quo, of course, others will have their ownarguments, many no doubt reasonable, in defense of thestatus quo.42

The result here is that even if we (ignore my argumentregarding generic liberalism and) suppose with Rawls thatgeneric liberalism and thus some commitment to genericdemocracy is beyond the reach of reasonable disagreement,the concrete determinate details of any particular democratic

DAVID A. REIDY

order will themselves inevitably be objects of reasonable dis-agreement. It is tempting here just to claim that such dis-agreements ought themselves to be settled democratically, andthat if they are so settled (assuming citizens faithful to theideal of public reason), then the results � the particular dem-ocratic regime that emerges as democratically favored � maybe legitimately enforced. But this is circular. The democraticresolution of reasonable disagreement preserves reciprocity injustification and thus liberal legitimacy only if the democraticprocess itself satisfies the same conditions. Where citizens rea-sonably disagree over the essential design of democratic insti-tutions, there is no democratic process available to them forresolving those disagreements such that the result will meetthe demands of reciprocity in justification and thus enjoy themoral credentials of liberal legitimacy.

One way to break out of this circle might be to invoketransition costs as a metacriterion for selecting among com-peting reasonable democratic institutional designs. Thus, onemight say that citizens reasonably divided over the merits ofvarious democratic institutional designs ought nevertheless toagree that whatever design closest to the one already in effectis best, since the transition costs of moving to it would be theleast. Unhappily, invoking such a metacriterion for settlingreasonable disagreements over democratic institutional designcannot save the Rawlsian position here.

To see this, consider, first, that so long as the status quodemocratic institutional design is among the alternatives overwhich citizens are reasonably divided, the proposed metacrite-rion simply entrenches the status quo. Reasonable citizens willthus reject any appeal to this metacriterion as the sole ordeterminative criterion for selecting among reasonable alter-native democratic institutional designs. For to accept it assuch would be to render pointless the moral evaluation ofreasonable democratic institutions, regardless of whether onehad a better or more reasonable alternative. It follows thatwhile reasonable citizens will certainly attend to transitioncosts as one metacriterion for selecting among reasonablealternative democratic institutional designs, they will attend


to it as but one of several relevant criteria. One of these fur-ther relevant criteria must be the significance of the moralgain realized through any proposed revision or change to thestatus quo. But for any proposed revision or change, citizenswill likely reasonably divide over not only the amount of thepotential moral gain to be realized, but also its weight quamoral gain over and against whatever transition costs attendto its realization. Ignoring transition costs is probably unrea-sonable when thinking about matters of democratic institu-tional design. Taking them into account, however, is mostunlikely to secure a reasoned consensus among citizens rea-sonably divided over the moral merits of various designs.43

The disagreements over the design of democratic institutionsjust discussed all concern the relationship between the ideal ofcitizens as free equals sharing in final political authority overthe basic structure of their body politic, on the one hand, andthe details of particular institutional arrangements, on theother. Of course, there are, on Rawls’s view, other reasons fordemocratic government. Democracy, Rawls maintains, is desir-able also because of its superior tendency, if appropriatelydesigned, to generate substantively just legislation. But hereagain citizens may reasonably disagree over which, if any,determinate design for democratic institutions will instrumen-tally serve their shared interest in securing substantively justoutcomes through political processes. Consider the traditionalepistemic case for traditional one-person, one-vote, majoritar-ian democratic procedures. This case, as has been known sinceCondorcet, depends on an empirical assumption that individ-ual voters are, taken individually and independent of oneanother, more likely than not to get correct any particular sub-stantive issue put to a vote. But whether this empirical assump-tion is satisfied or likely to be satisfied ever in the real world isjust the sort of complex empirical question to which the bur-dens of judgment paradigmatically apply and with respect towhich we ought to expect reasonable disagreement.44 If theavailable empirical evidence reasonably permits the conclusionthat the average voter is more likely than not to get wrong anyparticular substantive issue put to a vote (or is rarely if ever the

DAVID A. REIDY

sort of independent voter the Condorcet theorem presupposes),then the traditional epistemic case for one-person, one-vote,majoritarian democracy would appear to be subject to reason-able disagreement.

Of course, we might try to salvage an epistemic argumentfor democracy by endorsing a system of plural voting withspecial qualification procedures for those whose votes countfor more.45 But then we must confront the question of whe-ther any system of plural voting is consistent with our under-lying democratic ideal of citizens sharing as free equals in thefinal political authority over the structure of their socialworld. And this surely returns us to the domain of reasonabledisagreement, though now as regards the proper conceptionof an abstract moral ideal rather than whether the empiricalpremises of the Condorcet theorem are satisfied.

What I have endeavored to show in this section is that ifwe take seriously the fact of reasonable disagreement, asRawls surely intends us to do, then Rawls’s liberal principleof legitimacy looks wildly utopian, in the pejorative sense. Itrequires a citizenry unified by a reasoned consensus over thefact of reasonable pluralism itself, over generic liberalism, andover a determinate democratic constitutional order. The pos-sibility of any such citizenry, as I’ve suggested above, is sim-ply wishful thinking, even under ideal conditions. We need,then, to confront anew the question of how it is that coercivepolitical authority might be legitimate in a liberal democracyunder conditions of reasonable pluralism or disagreement.But first we must consider a particular line of defense thatmay be invoked at this juncture on Rawls’s behalf by thosewith broadly Rawlsian sympathies.

5. RECIPROCITY: WEAK AND STRONG

Rawls intends his liberal principle of legitimacy to express thedemands of reciprocity in political life for citizens who regardthemselves as free equals, politically speaking. But there is anambiguity in his discussions of reciprocity. Specifically, he


suggests both a weak and a strong reading of reciprocity andits demands. Accordingly, one might speak of a weak and astrong version of the liberal principle of legitimacy.46

The weak reading of reciprocity requires that one be pre-pared only to justify to others the principles from and inaccord with which one acts in terms others might reasonablyaccept from within a common human reason and appropriateshared moral point of view. On this reading, whether othersfrom within a common human reason and appropriate sharedmoral point of view reject or even reasonably reject the prin-ciples from and in accord with which one acts is beside thepoint. All one need to know is that others could reasonablyaffirm one’s principles.

This is a weak reading of reciprocity because under condi-tions of reasonable disagreement it requires very little of citi-zens in political life. Citizens reasonably disagree over anissue or doctrine when each reasonably affirms his or herposition from within a common human reason and appropri-ate shared moral point of view yet dissensus persists. But ifthe parties to a reasonable disagreement each reasonablyaffirm their own position, then this weak reading of reciproc-ity requires very little of them vis a vis others. If Sally andSue reasonably disagree over the constitutional acceptabilityof the death penalty, or abortion, or gay marriage, or pro-portional representation, or publicly funded elections, theneach honors the demands of reciprocity simply by arguingand voting for her own position. If from a common humanreason and moral point of view appropriate to free and equalcitizens Sally reasonably affirms the proposition that the statemust constitutionally recognize gay marriage if it recognizesheterosexual marriage, then it follows that Sue could reason-ably affirm that same proposition. And so Sally satisfies thedemands of reciprocity just insofar as she reasonably affirmsher own view.

If the liberal principle of legitimacy is read so as toembody only this weak reading of reciprocity, then it toodemands very little. To be legitimate, coercive state actionneed only be pursuant to and in accord with a constitutional

DAVID A. REIDY

order citizens could reasonably affirm from within a commonhuman reason and appropriate shared moral point of view.Were it the case that many citizens in fact reasonably rejectedthe constitutional order of their body politic (or even the factof reasonable pluralism itself, for that matter) that would bebeside the point, at least insofar as legitimacy was concerned.So long as that order could reasonably be affirmed, stateaction might satisfy the liberal principle of legitimacy. Sincenowhere in the previous section did I argue or give reasonsfor thinking that it is not possible reasonably to affirm thefact of reasonable pluralism, generic liberalism, and somedeterminate constitutional design, my criticism of Rawls’s lib-eral principle of legitimacy (assuming this weak reading ofreciprocity) missed the mark. It missed the mark because theweak reading requires only that every citizen could reason-ably affirm the essentials of the constitutional order, not thatthose essentials be immune from reasonable dissent.

There is no shortage in Rawls’s work of textual and argu-mentative support for this view of reciprocity. Moreover, itfits well with debts Rawls may owe to Hart and Soper onlegitimacy. H.L.A. Hart famously argued that genuine legalobligations, qua legal obligations, did not depend on the mor-al content of the relevant law or legal system, and aroseinstead out of a genuine rule-following practice effectivelyenforced by officials on citizens.47 That those subject to thelaw might reasonably reject the constitutional order wasbeside the point for Hart in terms of determining whether thelaw or legal obligation being enforced was genuine. PhilipSoper undertakes, from Hartian premises, to establish whatmust be the case not simply for the law or legal obligationbeing enforced to be genuine, but rather for the citizenagainst whom it is being enforced to have at least a primafacie moral obligation to obey because it is a law or legalobligation (and correspondingly for the official to have atleast prima facie moral authority to demand compliance).48

Soper argues that for this to be the case, the norms or rulesinternalized by officials and constituting their official rule-fol-lowing activity must be norms or rules the officials themselves


sincerely believe could in principle be affirmed by those sub-ject to them and, accordingly, are prepared to defend beforethose subject to them (in terms of the common good and soon). Rawls cites Soper’s view favorably in this regard whensetting out core features of his own view on legitimacy.49

What is important here is, first, that on neither Hart’s norSoper’s view is legitimacy compromised by the fact that someor many citizens reasonably reject one or more of the essen-tials of their constitution, and second, that Rawls sharesSoper’s view that a constitutional order must meet certainminimal moral criteria if the laws within it are to be enforce-able through legitimate coercion.

Notwithstanding the fact that this weak reading of reci-procity and liberal legitimacy is not wholly at odds withRawls’s texts and arguments, there is nevertheless also textualand argumentative support for a stronger reading of reciproc-ity, one that requires of citizens that in political life they actfrom and in accord with principles others could not reason-ably reject from within a common human reason and sharedand appropriate moral point of view. This is a stronger read-ing of reciprocity because, to return to Sally and Sue above,it would require Sally to refrain from acting from and in ac-cord with principles Sue reasonably rejects, even if Sally her-self reasonably affirms them and thus sincerely believes thatSue too could reasonably affirm them.

It seems likely that one reason Rawls sometimes writes interms that suggest this stronger reading of reciprocity is thatthe weaker reading can seem morally deficient. Surely, reci-procity must demand more than that we act toward our fel-low citizens in political life in accord with and from principlesthey could reasonably accept, if only they were presently tosee the world as we do, call the hard questions and draw ten-uous inferences just as we do, and thus share our doctrinalcommitments, religious view, and the like. The ‘‘more’’ thatreciprocity must demand, it may seem, is that we act towardour fellow citizens in political life in accord with and fromprinciples they could reasonably affirm and could not reason-ably reject as fellow citizens, as free equals, politically

DAVID A. REIDY

speaking. After all, if we affirmed only the weaker reading ofreciprocity, then assuming theists and atheists reasonably dis-agree over the existence of God, each would be free to advo-cate and vote for a constitutional order expressing directly hisor her religious position. But surely the ideal of reciprocitydoes not or ought not leave each morally free in this regard.But if it does not or ought not leave each morally free in thisregard, then that must be because reciprocity requires citizensto refrain from acting from and in accord with principles oth-ers could reasonably reject from within a common human rea-son and shared and appropriate moral point of view. Afterall, as Rawls says, a principle of legitimacy ought to requiremore than that those who are in power ‘‘can satisfy them-selves in the light of their own convictions that they are act-ing properly.’’50 This is a Hartian view, and Rawls clearlyrejects it.

But note here that there is a difficulty with moving fromthe weak to the strong view of reciprocity and thus liberallegitimacy. And that is that while the counterfactual aspect of‘‘could’’ renders the weak could reasonably affirm formulationof reciprocity virtually toothless (since so many things‘‘could’’ reasonably be affirmed), it renders the strong readingvirtually ruthless. That is, on the strong could not reasonablyreject formulation, reciprocity demands more than that nocitizen right now in fact reasonably reject the fundamentalterms upon which I propose to interact in political life. Itdemands that no citizen could reasonably reject those termsnow or at any future point in time. Suppose on some particu-lar Sunday all American citizens were suddenly to see ‘‘TheLight of Reason’’ and convert to Catholicism so that allAmericans reasonably affirmed Catholicism. The fact wouldremain, on Rawls’s view, that any one of them could, onMonday or any later day, reasonably reject Catholicism. Themere fact of contingent consensus does not place Catholicismbeyond the reach of reasonable disagreement. And so whileall Americans might today reasonably affirm proposed termsof political interaction that presupposed or gave institutionalembodiment to Catholicism, they could not in fact adopt


such terms without violating the ideal of reciprocity, at leaston the strong reading. For on that reading it is beside thepoint that everyone happens now reasonably to affirmCatholicism or a fully Catholic political doctrine. What issalient is the fact that anyone could reasonably reject eitherfrom within a common human reason and the shared moralpoint of view of free and equal citizenship. Thus, the strongreading of reciprocity entails liberal and religiously neutralpolitical institutions regardless of the degree to which citizensreach a reasoned consensus over any particular religious view.This would seem to be Rawls’s substantive political view, andthat it is suggests that Rawls is not unsympathetic to thestrong reading of reciprocity.

So, at first blush it would appear that Rawls offers both aweak and a strong reading of reciprocity and thus of the lib-eral principle of legitimacy. Now, plainly, if the weak readingof reciprocity and accordingly of liberal legitimacy is the cor-rect reading, if not as an exegesis of Rawls’s view then on itsown terms, then the fact that reasonable disagreementextends to the matters I’ve argued it extends to is not fatal toRawls’s liberal principle of legitimacy. But there are, I think,good reasons to reject the weak reading both as an exegesisof Rawls’s own view and on its own terms as an account ofreciprocity in judgment.

Consider first the exegetical question. If Rawls’s view ofreciprocity was really the weak view, then important featuresof his post-1980 work turn out not to be well-motivatedphilosophically. So long as Kantians, Millians, Thomists andothers affirm their respective doctrines from a common hu-man reason, weak reciprocity leaves all of them free to seekthe democratic realization in law of their own doctrinal posi-tions. Of course, the adherents to these various doctrines maywish to preserve civic peace rather than put the power of thestate to use in service of their comprehensive doctrine. Andthey may therefore choose to leave well enough alone andrefrain from resting their political proposals and votes exclu-sively on their comprehensive doctrines. But the point is thatif we adopt the weak reading of reciprocity and liberal

DAVID A. REIDY

legitimacy, then concerns over the legitimate use of state pow-er would have no bearing on their choice. Legitimacy is se-cured just insofar as they reasonably affirm their owndoctrine. This, of course, is exactly the view Rawls rejects.And it is presumably because he rejects it that his post-1980work includes extensive discussions of the idea and ideal ofpublic reason in addition to his arguments for the possibilityof an overlapping consensus over justice as fairness. As amatter of exegesis, then, the weak reading is not an attractivereading of Rawls’s view.

It is also not an attractive reading on its own merits. Rawlshas always insisted, rightly, that in political matters justifica-tion is always addressed to the other, to those who disagreewith us, and thus properly proceeds from some consensus orcommon ground.51 The weak reading of reciprocity arguablytrivializes this commitment since the consensus or commonground from which justification to others is to proceed is notonly counterfactual but permissive, its content given by whatothers could reasonably affirm, rather than by what they couldnot reasonably reject (and therefore in some sense must orought to affirm).

There is for Rawls a dilemma with respect to reciprocity.The strong reading, which captures that which is morallyappealing in the notion that political justification is alwaysaddressed to the other and thus aims to proceed from consen-sus or common ground, renders the liberal principle of legiti-macy wildly utopian, since citizens can and do reasonablydisagree over the nature of reasonable pluralism, generic lib-eralism, and determinate democratic decision procedures. Theweak reading, which Rawls’s language often suggests, leavesmuch in his post-1980 work philosophically unmotivated.And it renders the liberal principle of legitimacy not wildlyutopian but instead a toothless tiger, its demands satisfiedjust as soon as citizens come to regard their own views asreasonable.

Rawls’s liberal principle of legitimacy cannot be saved solong as it is understood to embody the demands of reciproc-ity in judgment under conditions of reasonable disagreement.


One might at this point give up on legitimacy altogether andconcede that a liberal democratic state is, normatively speak-ing, not capable of acting legitimately. Of course, it may stillact justly. And that, one might insist, is enough. In the end,given reasonable disagreement over the demands of justice,liberal democratic commitments express no more than a kindof faith, a faith the faithful must be prepared, through coer-cive state action, to realize in the world. On this view, politicsis simply a competitive struggle for the power to realize one’spreferred political faith. The idea or ideal of legitimate(rather than simply just, by one’s own lights) state action is ared-herring, an incoherent vestige of the naive and misguidedEnlightenment utopianism that supposed that through reasonalone men might find a consensual basis for organizing them-selves into and acting as bodies politic.

This is, I think, an unattractive option, though it has itsproponents. Rather than embrace a politics of faith and power,a politics guided by only our convictions regarding justicerather than justice and legitimacy, it seems wise to inquirefirst in to whether legitimacy under conditions of reasonablepluralism might be retheorized. Since the root of the problemfor Rawls’s position is the ideal of reciprocity in judgment,perhaps we ought to inquire into whether legitimacy might beretheorized with an alternative ideal of reciprocity serving asour moral and political North Star.

6. FROM LIBERAL TO DEMOCRATIC LEGITIMACY

Rawls regards fidelity to both his ideal of reciprocity and hisliberal principle of legitimacy as essential if citizens are toexpress mutual respect to one another as free equals in politi-cal life and secure for themselves political autonomy as abody politic.52 He aims to show that under democratic andpluralist conditions a just social order might be realized, pre-served and perfected through the legitimate use of coercivestate action. A just social order so achieved would stand as agenuine expression of the collective self-determination or

DAVID A. REIDY

freedom of democratic citizens one and all, an expression oftheir common human reason, rather than the force or will ofsome. Any tinkering with Rawls’s ideal of reciprocity in judg-ment is likely to force revisions, then, not only to his concep-tion of liberal legitimacy, but also to his conceptions ofpolitical autonomy and civic respect.

But tinker with this ideal we must. For it is by virtue of itscommitment to reciprocity in justification that the liberalprinciple of legitimacy is rendered either ruthless or toothlessby reasonable disagreement. What we need is an alternativeconception of both reciprocity and legitimacy, one well-suitedto conditions of reasonable pluralism and faithful to the dem-ocratic commitment to citizens sharing as free equals in finalauthority over the structure of their body politic, but one cutfree of reciprocity in justification. I want to suggest now howwe might proceed to generate such a conception from withinRawls’s overall view.

In The Law of Peoples, Rawls offers from a liberal demo-cratic point of view a generic conception of political legiti-macy against which nonliberal and nondemocratic butnevertheless decent peoples might be shown to be well-ordered and thus to possess legitimate domestic politicalauthority.53 There are two basic elements to this generic con-ception.54 The first is that political legitimacy exists only inso-far as political society is constituted as a genuine system ofsocial cooperation among persons. The second is that politi-cal legitimacy exists only insofar as a political society is ableto generate genuine (if prima facie) moral obligations in favorof obeying the law. When these two conditions are met, coer-cive domestic political authority may properly be regarded aslegitimate, generically speaking. Liberal democratic peopleswill reasonably tolerate, even acknowledge with respect, othernonliberal or nondemocratic bodies politic as systems of legit-imate political authority, provided they meet these conditions.Of course, liberal democratic peoples will demand of theirown bodies politic more than that these two conditions bemet as a matter of their own internal legitimacy. But thesetwo conditions will still be among those they impose on their


own bodies politic, even if they also go on to impose furtherconditions.

But what does it mean for these two conditions to be met?The first condition requires a political society constituted as agenuine scheme of social cooperation among persons. Thefirst thing to notice here is that it does not require a genuinescheme of social cooperation among persons who understandthemselves for normative purposes to be situated within thatscheme as free and equal individual persons. Persons mayunderstand themselves as always already members of particu-lar social groups, and subject to particular obligations assuch, and still constitute themselves politically as a genuinescheme of social cooperation, even if their relationship to thebody politic within and through which they cooperate is thenalways mediated by their group membership and group-basedobligations. Still, regardless of how they understand theirrelationship to the body politic within and through whichthey constitute a genuine scheme of social cooperation, theymust constitute themselves politically as a genuine scheme ofsocial cooperation. And cooperation is not mere coordina-tion. It is purposeful, rule-governed, and mutually advanta-geous.

To be able legitimately to deploy coercive force against itsconstitutive members, then, a body politic must be organizedand act in certain ways. It must purposefully aim at themutual advantage of its members. And, under anything likemodern conditions, it must do so under and through the ruleof law. People cooperate within a basic social structure con-stitutive of a body politic to secure for themselves certainadvantages, rights or entitlements, as citizens or cooperators.And to enjoy these advantages, to enjoy any rights or entitle-ments at all as the fruits of their cooperation as a citizen ormember of the body politic, they must enjoy the basic rightsto subsistence, security and certain core liberties within orthrough the rule of law. Otherwise their claim on the cooper-ative surplus is contingent upon the whims and desires ofothers, which may change at any time, and their interactionwithin and through a basic social structure is something other

DAVID A. REIDY

than a form of cooperation. No body politic can possess thecapacity legitimately to coerce its members, then, if it fails tosecure for them all basic subsistence, security and certain coreliberty rights. These are the rights, following Henry Shue,essential to or ingredient in any and all rights whatsoever.55

Among the core liberties that must be secured if a body poli-tic is to be able legitimately to coerce its members are basicrights of political participation, the right to petition one’sgovernment, to register dissent, to demand and receive a jus-tification for state action, and the like. These are, along withbasic subsistence and security rights, essential, then, to anyplausible, even if generic, conception of legitimate political-legal authority.

As just noted, to be able legitimately to deploy coerciveforce against its members, a body politic must constitute andgovern itself as a cooperative undertaking through a systemof law or the rule of law. This system or rule of law must beone able to generate genuine (if prima facie) moral obliga-tions to obey the law. This is Rawls’s second general condi-tion of generic political legitimacy. To generate suchobligations, a legal system must contain, at least so long ashuman beings remain what they are, what H.L.A. Hart calledthe ‘‘minimum natural law content.’’56 And this minimumnatural law content must be extended to all human membersof the body politic.57 In this way a legitimate body politicaffirms the moral status of all its members as persons, even ifit denies its members the constitutional status of free andequal individual persons or citizens. This content, that con-tained within the minimum natural law content, will overlapto some degree with the basic subsistence, security and coreliberty rights that must be secured if a body politic is to con-stitute itself as a genuine scheme of social cooperation. As auniversal condition of legitimate political authority, this con-tent may be expressed in terms of basic human rights.

A legal system able to generate genuine (if prima facie) moralobligations to obey must also, more generally, honor the ruleof law (and the basic human rights it entails). There can be nogenuine moral obligation to obey the law as law in the absence


of the rule of law. Without the rule of law, one may have a pru-dential reason to obey commands issued in the form of law, ora moral reason to obey laws by virtue of their content, but onecannot have a moral reason to obey a law as a law. The rule oflaw, then, is essential to legitimate political authority in twoways. It is necessary (at least under modern conditions) for abody politic to be constituted as a system of social cooperation.And it is necessary for those participating in that system ofsocial cooperation to have (at least prima facie) genuine moralobligations to obey the law.58

There is yet a further requirement that must be met if citi-zens are to have (at least prima facie) genuine moral obliga-tions to obey the law. The officials administering the legalsystem must show through their behavior that they haveinternalized its central norms or rules, especially the second-ary norms or rules of legal validity. Hart identifies this as arequirement of any genuine legal system. But, as noted ear-lier, Rawls agrees with Soper that this Hartian requirement(that officials have internalized the secondary rules of legalvalidity) must be recast or expanded if laws or legal obliga-tions are as such to impose (at least prima facie) moral dutiesor obligations to comply.59 Officials must internalize the rele-vant norms and rules such that they do not regard them asgiving reasons to guide just their own conduct, but as reasonsalso to guide the conduct of those subject to the law. Andthis means that they must be prepared to justify themselves tocitizens by citing those norms and rules as reasons for theirjudgments and actions, and to listen and reply to dissent andobjection from citizens in good faith. Thus, following Soper,Rawls maintains that no body politic can claim the power tocoerce members legitimately if there is no right on the part ofcitizens to the minimum natural law content of any legal sys-tem, to dissent and petition their government, to receive apublic justification for government actions, and the like.These are among the basic human rights essential to politicallegitimacy.

Where all the foregoing conditions (rooted in the ideals ofsocial cooperation and a legal order able to generate bona

DAVID A. REIDY

fide moral obligations) are met (and, we might add, providedofficials are able to secure more or less general compliancewith the law), a body politic may be able legitimately tocoerce its members. On Rawls’s view, it is legitimacy sounderstood that liberal democratic peoples may justifiablydemand of all peoples as a condition of their being recog-nized as full and genuine members in a just internationalsociety of peoples. Peoples or bodies politic need not consti-tute themselves as liberal democracies to merit such recogni-tion. But they must constitute themselves as constitutionalrepublics (for that is more or less what the foregoing condi-tions taken together require). Liberal democracies ought torecognize and tolerate nonliberal and/or nondemocratic, butotherwise generically legitimate (or, as Rawls says, ‘‘well-ordered and decent’’) regimes (assuming there are some).That is one of Rawls’s key claims in The Law of Peoples.

Note here that in their domestic affairs decent peoples donot honor reciprocity in justification. What they do honor isa reciprocity in interests as between persons understood, forpolitical purposes, to stand before the body politic not as freeequals but as always already situated by group membershipand obligations. That is part of what Rawls means when hesays that decent peoples are genuine systems of cooperation,even if they’re not organized as between citizens as freeequals.

Now, regardless of what one thinks of this commitment tointernational toleration, Rawls is surely correct here on twofronts. The first is that political legitimacy requires at leastthe foregoing, a reciprocity in interests as he sets out as theconditions of well-ordered decency. The second is that theforegoing is too thin a conception of political legitimacy forliberal democratic peoples to use in their own self-evaluation.Of themselves, they must surely demand more. Liberal demo-cratic citizens have good reasons to demand of their ownbodies politic fidelity to a richer and more distinctively demo-cratic conception of political legitimacy, one that takes ade-quate account of the basic democratic commitment to thefreedom and equality of each individual citizen, simply as an


individual citizen, vis a vis the cooperative scheme that is thebasic structure of their body politic. A liberal democraticconception of political legitimacy must reflect the fact that ina liberal democracy citizens share as free and equal individu-als in the final political authority over the design of the basicsocial structure through which their body politic is consti-tuted. Legitimate political authority, for liberal democraticcitizens, is always the collective authority of citizens as freeand equal individuals. The question, then, is what must beadded to Rawls’s generic conception of legitimacy for well-ordered decent peoples to generate from it such a conceptionappropriate to liberal democratic peoples.

Here Rawls turns to his ideal of reciprocity in justificationas the fundamental moral norm governing the relations ofindividual citizens as free equals. And this leads him to hisliberal principle of legitimacy. But, as we’ve seen, that roadterminates in the dead end of reasonable disagreement. Whatis needed, then, is an alternative understanding of the respectdemocratic citizens owe one another in political life, anunderstanding not rendered irrelevant by conditions of deepand wide reasonable disagreement.

I propose an alternative democratic principle of legitimacyrooted in a commitment to a reciprocity of interests betweencitizens as free equals. On this alternative, a liberal democ-racy may legitimately coerce its members only when it doesso pursuant to and in accord with a constitution the designand long term effect of which is to underwrite a system ofreciprocally advantageous cooperation among citizens as freeand equal individuals, individuals whose claims on the bodypolitic are unmediated by any antecedent group-based mem-bership (so that race, ethnicity, gender, religion, etc., in noway condition one’s claim as a citizen to an institutionalizedmutually advantageous system of social cooperation). Such aconstitution would of course have to allow for expressions ofdissent and the like. But it would also have to allow for themobilization of political parties, for universal adult suffrageand access to office, for regular periodic elections aimed atkeeping the political process competitive and open, and much

DAVID A. REIDY

else. No constitution lacking these features could plausibly beviewed as intended and likely to secure reciprocity of interestsbetween citizens as free and equal individuals over the longterm.

But what other evidence would show a particular a liberaldemocratic order to be an instantiation of reciprocity ofinterest over the long term between citizens as free and equalindividuals? The most compelling evidence would be a pro-gressively expanding domain of civil rights and entitlementsafforded to all citizens simply as citizens. Indeed, a liberaldemocracy for which no such evidence may be tendered isone about whose legitimacy we ought to have serious doubts.Certainly a democracy that over time generated a nonrecipro-cal distribution of most rights and entitlements, advancingthe interests of some while setting back the interests of oth-ers, would be presumptively illegitimate. In any case, whatlegitimacy requires of a democracy is not that its constitutionin its essentials pass some test of reciprocity in judgment andthereby qualify as immune to reasonable dissent. What legiti-macy requires is rather that the constitution demonstrablyand reliably over time secure a reciprocity of interestsbetween citizens as free equals. Here the relevant baseline orbenchmark is citizens in their status, and with their funda-mental interests, as free equals within a common body politic.A democratic constitution that institutionalizes that statusthrough a scheme of political participation rights and under-writes legislative processes through which citizens, qua citi-zens, realize reciprocity of interests is sufficiently just from thedemocratic perspective so as to support the conclusion thatcoercive state action pursuant to it is presumptively or almostalways legitimate.60

Reciprocity of interests or advantage here is best measuredin terms of the individual rights or entitlements citizens enjoyby virtue of their citizenship status alone. This is not becausecitizens cannot be advantaged in other ways. It is rather be-cause rights or entitlements attached to citizenship status arethe most secure and compelling evidence of reciprocity ofinterests between citizens as such. These individual rights or


entitlements have normative priority (for the most part; evenrights have limits in extremis) over other benefits citizensmight enjoy in the form of enhanced national security (a cor-porate good citizens enjoy by virtue of membership in thebody politic), improved GDP (an aggregate good citizensenjoy by virtue of their membership in the population overwhich that good is aggregated), or national parks and muse-ums and the like (a collective or common good citizens enjoyby virtue of their sharing with all other citizens the sameclaim to it). We might say that this is what a democracy isfor. A democratic body politic is a system of cooperationbetween free equals aimed at securing a reciprocity of inter-ests through a system of civil or universal rights.

That the United States is a legitimate democratic order, atleast since the 19th Amendment in 1920, is now a matter easyenough to determine. With the New Deal the United Statescommitted itself legislatively, and arguably constitutionally(though not in the written Constitution), to a basic socialminimum as a matter of individual right. This is evidence infavor of the legitimacy of the American democratic constitu-tional order. At some point in the first half of the 20th cen-tury the United States committed itself legislatively, andagain arguably constitutionally (again, though, not in thewritten Constitution) to public education for all. This right orentitlement is now being realized finally for persons with dis-abilities. This is further evidence in favor of the legitimacy ofthe American democratic constitutional order. Similar pointsmay be made about the right to form unions, engage in col-lective bargaining, gain access to voter registration, and muchelse. The connection between a democratic constitution and asystem of universal civil rights has been affirmed and deep-ened repeatedly, both legislatively and judicially, over the last50 years. If in 25 years the United States commits itself legis-latively or perhaps constitutionally (again, it need not be inthe written Constitution to be a constitutional commitment)to an individual right to basic health care, then this toowould count as yet further evidence in favor of the legitimacyof the American democratic constitutional order. All things

DAVID A. REIDY

considered, notwithstanding reasonable disagreements overwhether the current constitutional order is fully faithful to theideal of citizens as free equals, or to the ideal of democracyitself, the evidence is overwhelming that the current constitu-tional order has generated for almost a century now a mutu-ally advantageous system of individual rights and entitlementstied to citizenship status alone. Of course, there may be rea-sonable disagreement here. The evidence is no doubt com-plex. But, importantly, the fact of such disagreement, shouldany there be, is in itself irrelevant to the question of the legit-imacy of the democratic order in the United States on thedemocratic conception of legitimacy I am suggesting here.That, of course, is not the case on Rawls’s liberal principle.

Of course, if reasonable disagreements over the legitimacyof a particular constitutional order are, even on the demo-cratic conception of legitimacy, widespread, persistent, anddeeply divisive, then social stability may prove difficult tosustain. But social instability, whether rooted in reasonabledisagreement or not, does not entail political illegitimacy.Nor, for that matter, is social stability legitimacy, as Rawlshimself notes.61

It should not surprise that many state actions illegitimateon Rawls’s liberal principle of legitimacy will prove also ille-gitimate on this democratic alternative. After all, both princi-ples have at their root a commitment to reciprocity betweencitizens taken as free and equal members of a single bodypolitic. Nor should it surprise that for some state actions thetwo principles will yield different judgments regarding legiti-macy. Consider the issue of proportional representation, amatter concerning constitutional essentials. On the strongreading of Rawls’s liberal principle of legitimacy, it’s hard tosee how this issue could be settled in any way sufficient tounderwrite legitimacy. The matter is just too highly contested.On the weak reading, of course, that it is so contested isbeside the point. Surely proportional representation could bereasonably affirmed. Thus, there is no real legitimacy hurdleto clear. It’s enough that those who favor and are ableto bring about proportional representation can say to


themselves, correctly, that others could reasonably affirm thesame. The alternative democratic principle of legitimacy pro-posed here is neither as ruthless as the strong reading of lib-eral legitimacy nor as toothless as the weak reading. On thedemocratic alternative, the question to be asked is whetherproportional representation is necessary to insure, or at leastconsistent with, a constitutional order faithful to reciprocityof interests. That is a question that can be answered, at leasttentatively, before its adoption by looking to other regimeswhere it is the norm and by examining various theoreticalmodels of voting behavior and the like. And it is a questionthat can be answered after its adoption by simply looking tothe legislative track record with respect to civil rights andentitlements. Democratic legitimacy is a matter determined byan historically and empirically informed review of the legisla-tive output of a democracy in terms of civil rights and entitle-ments over time.

If proportional representation turns out to be necessary toreciprocity of interests, then it is required by legitimacy. If itis consistent with but not necessary to reciprocity of interests,then it is consistent with legitimacy, permissible but notrequired. If it is incompatible, then a democratic regime thatincorporates it is to that extent illegitimate. My own guesshere is that it is consistent with but not necessary to reciproc-ity of interests. It is thus permissible but not required fromthe point of view of legitimacy. Of course, there may be yetstill compelling reasons of justice to think it either necessaryor desired. It may more fully or reliably institutionalize anddeliver, say, the Rawlsian egalitarian conception of justicethought to best express the demands of distributive justice ina liberal democracy. Or it may more perfectly express theideal of equal political participation. But if these are the rea-sons for advocating proportional representation, then thestruggle for it is part of the struggle for justice, not part of astruggle against illegitimacy. And that is an important distinc-tion.

It may be objected here, however, that the fundamentalinterests of citizens as free and equal individual co-authors of

DAVID A. REIDY

their common body politic is not itself a matter of fact. It is amoral matter over which citizens are themselves likely to dis-agree reasonably and which must be settled before a constitu-tional order may be measured against the standard ofreciprocity of interests. It is true, of course, that the funda-mental interests of citizens are to be specified in terms of amoral conception of democratic citizens as free and equal.But Rawls’s conception here is serviceable. Citizens are freeand equal by virtue of their possessing to some requisite min-imum degree the two basic moral powers. Their fundamentalinterests as democratic citizens, then, lie in the social condi-tions necessary or conducive to the development and exerciseof those two powers. These interests, however, must beunderstood to arise out of and range over more than thepower or capacity for judgment. To be sure, citizens havefundamental interests tied to their power or capacity for indi-vidual judgment regarding both the good and the right. Buttheir fundamental interests as citizens include a good dealmore. Citizens have fundamental interests in health, educa-tion, meaningful and socially affirmed work, self-expressionin social life, civic friendship, loving and being loved, emanci-pation from false necessities regarding the social order ofwhich they are one and all co-authors, and in much else. Citi-zens have fundamental interests in more than just those socialconditions necessary to the development and exercise of theircomplex capacities for judgment alone. A legitimate demo-cratic constitutional order should secure over time reciprocityof those interests generally, and not answer only to citizens’interest in expressing and having their judgments respected.There is no better evidence that it does so than an expansivepattern of legislation yielding civil rights and entitlements.

Fully sketching an alternative democratic conception oflegitimacy is a task that lies beyond the scope of this paper.Much remains to be done. For example, I have not even ad-dressed the question of what adopting such an alternativeconception of legitimacy would mean for other aspects ofRawls’s view. It seems clear enough that it would force somechanges. For example, an ideal of public reason expressing


the demands of reciprocity in interests, rather than reciprocityin justification, is likely to differ in important respects. Butthese are matters that must wait for another day. I hope hereto have at least set out in broad outline both the reasons forlooking for an alternative democratic conception of legiti-macy and some of the main elements likely to figure in anysuch account appealing to those with Rawlsian sympathies.

NOTES

1 John Rawls, A Theory of Justice, Harvard University Press, 1971,revised edition, 1996, p. 3. Hereafter TJ. All citations are to the 1996revised edition.2 John Rawls, Political Liberalism, Columbia University Press, 1993(and 1996 paperback), p. 24, note 27, and elsewhere. Hereafter PL. Allcitations are to the 1996 paperback edition.3 John Rawls, The Law of Peoples, Harvard University Press, 1999.Hereafter LoP.4 For a useful analysis of various accounts of legitimacy as a moralproperty enjoyed by states and the relationship between legitimacy andother moral properties of states such as justice, see A.J. Simmons, ‘‘Justifi-cation and Legitimacy,’’ Ethics, v. 109, n. 4, pp. 739�771, 1999; and AllenBuchanan, ‘‘Political Legitimacy and Democracy,’’ Ethics, v. 112, n. 4,pp. 689�719, 2004. See also, Richard Flathman, ‘‘Legitimacy,’’ A Com-panion to Contemporary Political Philosophy, Robert Goodin and PhilipPettit, eds., Blackwell Publishers, 1993; and Alan Cromartie, ‘‘Legiti-macy,’’ Political Concepts, Manchester University Press, Richard Bellamyand Andrew Mason, eds., 2003.5 Thus Rawls says of legitimacy and justice:‘‘A little reflections shows they are not the same. A legitimate king orqueen may rule by just and effective government, but then they may not;and certainly not necessarily justly even though legitimately. [... ].A signif-icant aspect of the idea of legitimacy is that it allows a certain leeway inhow well sovereigns may rule and how far they may be tolerated. Thesame holds under a democratic regime. [... ] Thus, legitimacy is a weakeridea than justice and imposes weaker constraints on what can be done.[... T]hough there is of course an essential connection with justice.’’PL,pp. 427�428.6 H.L.A. Hart would appear to suggest such a proceduralist-pedigreeview in The Concept of Law, Oxford University Press, 1997.7 PL, p. 429.

DAVID A. REIDY

8 Rawls does discuss the obligations of citizens to obey the law, first interms of ‘fair play’ considerations and then in terms of a ‘natural duty ofjustice,’ as well as issues of civil disobedience. See TJ, Chapter 6. But hedoes not discuss the legitimacy of coercive state action. The term ‘‘legiti-macy’’ does not appear in the index.9 Comprehensive doctrines range over the full domain of value acrossthe totality of the human condition. They thus extend well beyond, buttypically also include, the narrower idea of conceptions of the good asthat idea applies to individuals. On the nature of comprehensive doctrines,see PL, p. 13.10 For one of Rawls’s later discussions of the fact of reasonable dis-agreement, see Justice as Fairness: A Restatement (hereafter JF), HarvardUniversity Press, 2001, pp. 33�36. Rawls refers typically to ‘‘the fact ofreasonable pluralism.’’ But I follow Charles Larmore’s suggestion that thefact to which Rawls refers is better named ‘‘the fact of reasonable dis-agreement.’’ See Charles Larmore, ‘‘Pluralism and Reasonable Disagree-ment.’’ Social Philosophy and Policy, v. 11, pp. 61�85, 1994.11 See PL, pp. 64�65, and 144.12 See, e.g., PL, pp. 3�4, and 136�137.13 For a clear statement of Rawls’s own sense of this transition, seeSamuel Freeman’s ‘‘Introduction’’ to the Cambridge Companion to Rawls,Cambridge University Press, 2003. See also Burton Dreben’s, ‘‘On Rawlsand Political Liberalism,’’ in that same volume.14 Well, perhaps not literally complete, since Rawls presents his LoP asthe ideal of international relations appropriate to a liberal democraticbody politic committed to political liberalism and to, or to aspiring to,justice as fairness. This, he says, completes his normative political theoryof liberal democracy.15 Among others: public reason, overlapping consensus, political con-structivism, and freestanding justification.16 PL, p. 137. See also JF, pp. 40�41.17 Reciprocity, in turn, Rawls regards as rooted in the moral capacity tobe reasonable, to seek and honor principles of conduct others could rea-sonably accept or could not reasonably reject. Rawls makes this explicitat various points. See, e.g., PL, p. xlvi. While Rawls does not say asmuch, the moral capacity to be reasonable is, ultimately, the capacity tolive as a person or practical moral agent in a world within which thereare, and in full recognition and respect of, other persons or practical mor-al agents. This is what Rawls presumably means when he says that thereasonable is public in a way that the rational is not.18 See, PL, p. 50. See also JF, p. 77.19 See, e.g., PL, p. xlvi.20 PL, p. 429.21 See, e.g., PL, pp. 36, 144.


22 See, e.g., PL, pp. 6, 164�168.23 See, PL, pp. 228�230 and 338�339.24 See, PL, pp. 190�194.25 Indeed, they might disagree even over which of several generically lib-eral conceptions of justice is best. From PL on in his writing, Rawlsmaintains that it is only a generic liberalism that can meet the demands ofreciprocity between citizens as free equals. For just one statement of theclaim that reasonable disagreement extends to political values, see JF,p. 36. For a good overview of Rawls’s ideal of public reason see CharlesLarmore’s ‘‘Public Reason,’’ in The Cambridge Companion to Rawls. Formore critical discussion, see my ‘‘Rawls’s Wide View of Public Reason:Not Wide Enough,’’ Res Publica v. 6, pp. 4972, 2000.26 See, e.g., JF, pp. 134�136. See also, TJ, pp. xiv�xvi.27 For discussion see JF, pp. 145�148.28 See, PL, pp. 227�230.29 On the relationship between legitimacy and public reason as a normgoverning citizens when they make political judgments and vote on mat-ters of basic justice and constitutional essentials, see PL, pp. 216�220. Onthe relationship between legitimacy and public reason as a norm govern-ing the Supreme Court in its exercise of judicial review, see PL, pp.231�240. The close connection between liberal legitimacy and public rea-son and reciprocity is, of course, a matter central to Rawls’s later work,and thus permeates PL and is also discussed at some length in JF. See,e.g., JF, pp. 89�94.30 The burdens of judgment include the facts that no two persons everhave the same life experiences, that everyone’s reasoning is shaped bytheir life experience, that many abstract concepts admit of many defensi-ble conceptions, that the empirical evidence relevant to assessing the truthof many claims is complex and difficult to evaluate, and that the balanceor order of values relevant to many claims is likewise complex and diffi-cult to establish. For a clear statement by Rawls of the burdens of judg-ment and their relationship to reasonable disagreement, see PL, pp.54�58.31 Simple disagreements are, in contrast to reasonable disagreements,rooted in some identifiable, reproachable and correctable failure of ratio-nality or reasonableness, such as a failure of inference or logic, or a fail-ure to avoid bias or prejudice, in one’s reasoning.32 Of course, simple disagreements are to be expected and expected topersist as a permanent feature of a free and open society as well. But weneed not invoke the burdens of judgment to explain them. While simpledisagreements are no doubt a permanent feature of the human condition(so long as we remain fallible), they raise no special problems with respectto reciprocity or legitimacy for Rawls, since their existence is due to thefailure by at least one party to deliberate in a reasoned way and to exer-

DAVID A. REIDY

cise sound judgment. It bears mentioning here that the distinction betweensimple and reasonable disagreements is not a purely epistemic distinction,though it has epistemic dimensions. In the end, to identify a disagreementas reasonable is to express a certain moral stance toward another one re-gards as mistaken, perhaps deeply mistaken, in his or her beliefs or com-mitments.33 And most arguments in political life are nondeductive.34 Suppose Bob and Sally disagree over what conclusion follows induc-tively from a particular set of premises. Suppose further that Bob en-dorses stricter standards of inductive inference and Sally endorses looserstandards. Bob and Sally will disagree, then, not just over the substantiveconclusion they think follows inductively from a particular set of pre-mises, they’ll disagree also over the nature of that disagreement. Indeed,they may disagree, even disagree reasonably if their disagreement overstandards of inductive inference is reasonable, over whether their substan-tive disagreement is itself simple or reasonable.35 And, it is not enough, of course, merely to insist dogmatically onsome great divide between science and morality, religion and philosophy.36 This sort of view would be welcomed by MacIntyre, Hauerwas andother critics of modernity. For a useful discussion of the anti-modernstance of such neotraditionalist religious thinkers, see Jeffrey Stout’srecent Democracy and Tradition, Princeton University Press, 2004, Chap-ter 5.37 There are many persons disinclined to affirm the fact of reasonablepluralism in anything like the form Rawls casts it or to accommodatethemselves to it in their thinking about a just social order. Rawls regardshis disagreement with such persons as simple rather than reasonable. Onhis view, those who reject the fact of reasonable pluralism or refuse toaccommodate themselves to it in political life do so unreasonably.Accordingly, it is no affront to the ideal of reciprocity in justification sim-ply to ignore their judgments. Of course, if the fact of reasonable dis-agreement were itself something over which persons may reasonablydisagree, then Rawls, being committed to reciprocity in justification,would have to avoid any necessary appeal to the fact of reasonable dis-agreement in his public justification of liberal principles of justice.38 I am grateful for this point to an anonymous reviewer for this journal.39 For a useful discussion of the difficulty Rawls faces in giving a noncir-cular account of why those who reject generic liberalism are unreasonablein so doing, see Marilyn Friedman, ‘‘John Rawls and the Political Coer-cion of Unreasonable People.’’ in The Idea of a Political Liberalism:Essays on Rawls, eds., V. Davion and C. Wolf, Rowman and Littlefield,2000.40 In response to a question from the audience at the conference at San-ta Clara University celebrating the 25th anniversary of TJ’s publication,


Rawls explicitly stated that he regarded libertarianism as an unreasonabledoctrine because it did not take the basic social structure as the subject ofjustice. For Rawls’s statement of this defect of libertarianism, see PL, pp.262�265, and JF, p. 16. For contrary remarks by Rawls the tone at leastof which suggests that the libertarian � liberal disagreement is a reason-able disagreement, see JF, p. 83. For an account and defense of Rawls’sposition that libertarianism is simply an unreasonable doctrine, see Sam-uel Freeman, ‘‘Illiberal Libertarians: Why Libertarianism is Not a LiberalView.’’ Philosophy and Public Affairs, v. 30, n. 2, pp. 105�151, 2001.41 The claim comes to this: Marxists, communitarians, libertarians andsimilar dissenters from generic liberalism are either unreasonable in theirdissent or really closet generic liberals dissenting from only this or thatdeterminate conception of generic liberal justice. This is the sort of ‘‘rec-onciliationist’’ view animating the work of James Sterba and Will Kymli-cka. It’s the ‘‘in the end and after a full analysis, we’re all (or should be)good liberals after all’’ view. I find this ‘‘reconciliationist’’ orientation orcommitment problematic. It seems to me, to cite just one example, thatthe disagreements between Nozick and Rawls or Rawls and G.A. Cohenare just the sort of disagreements we should regard as reasonable and un-likely to dissipate upon careful examination. These are persons of highintelligence and manifest good will and their disagreements ultimatelyderive from the great difficulty of saying in relatively concrete and deter-minate form and in light of often ambiguous empirical facts what wemean when we commit ourselves to the freedom and equality of citizensvis a vis their social world.42 For an introduction to the range of reasonable disagreements thatpersist with respect to determinate democratic orders, and indeed democ-racy itself, see Robert Dahl’s Democracy and Its Critics, Yale UniversityPress, 1989, especially Part IV.43 It’s perhaps worth noting here that in the context of original positionreasoning there are no determinate transition costs to appeal to sincethere is no antecedently given democratic order. We simply ask inabstracto which democratic institutional design is such that no reasonablecitizen could reasonably reject it.44 The same point might be made about more recent arguments fordeliberative democracy. Whether democratic deliberation serves to im-prove the judgment of individual voters is an empirical matter over whichsocial scientists and others presently reasonably disagree. For a discussionof these matters, see John O’Neill, ‘‘The Rhetoric of Deliberation: SomeProblems in Kantian Theories of Deliberative Democracy,’’ Res Publica,v.8, n. 3, pp. 249�268, 2002.45 Rawls considers and allows for the possibility of plural voting. SeeTJ, pp. 204�205.

DAVID A. REIDY

46 The ambiguity I have in mind and explicate in the text appears in state-ments of the liberal principle of legitimacy such as the following: ‘‘... whenconstitutional essentials and questions of basic justice are at stake, the exer-cise of coercive political power, the power of free and equal citizens as a col-lective body, is to be justifiable to all in terms of their free public reason.’’JF, p. 141. For similar statements, see also, JF, pp. 41, 202, and PL, pp.137, 217. In these statements it is unclear whether Rawls means to requireonly that citizens could reasonably affirm the relevant positions or morestrongly that they could not reasonably reject them. This ambiguity appearsalso in ‘‘The Idea of Public Reason Revisited,’’ reprinted in both LoP andthe Collected Papers, Samuel Freeman, ed., Harvard University Press, 1999;see, e.g., the statement at p. 578 in the Collected Papers. Indeed, the ambigu-ity appears as early as Rawls’s 1971 essay ‘‘Justice as Reciprocity.’’ See, e.g.,Collected Papers, p. 208.The ambiguity is underscored by Rawls’s approv-ing references to Scanlon’s view, which explicitly adopts the more demand-ing could not reasonably reject formulation of reciprocity. See, e.g., PL,p. 49, note 2, and p. 124. A less telling but still relevant reference to Scan-lon’s view may be found also in JF, p. 7, note 6. Those inclined to read Raw-ls as adopting only the weaker could reasonably affirm formulation mustexplain away these approving references to Scanlon’s view. Yet, it must beacknowledged that Rawls uses the could reasonably affirm formulation veryoften. See, e.g., PL, 137, 216. As I suggest in the text of this essay, the tex-tual ambiguity in Rawls’s work cannot be fully resolved by appeal to thestructure of his arguments and overall position. For here too we find ambi-guity with respect to the two alternative formulations of reciprocity. Forexample, when Rawls discusses public reason, it often unclear which of thetwo formulations of reciprocity he is working from. Sometimes Rawlsspeaks as if the ideal of public reason requires citizens in political activity tobracket or set aside commitments arrived at solely from reasons otherscould reasonably reject; sometimes he speaks as if it requires them only toassure themselves that others could reasonably affirm their reasons for theirpolitical commitments. Commentators are accordingly themselves dividedover Rawls’s meaning. Rex Martin, for example, has insisted in several es-says on the weaker reading as the correct reading. See, for example, his‘‘Rawls’s New Theory of Justice,’’ Chicago-Kent Law Review, v. 69, pp.737�762, 1994. Jeffrey Stout has, along with most others I think, adoptedthe stronger reading. See, e.g., his Democracy and Tradition, Princeton Uni-versity Press, 2004, p. 10.47 See H.L.A. Hart, The Concept of Law, 2nd edn, Oxford UniversityPress, 1997.48 See Philip Soper, A Theory of Law, Harvard University Press, 1984.49 Rawls cites Soper favorably in LoP, pp. 66, 67, and 72, and in PL,p. 109.50 JF, p. 186.


51 See, e.g., JF, p. 27; PL, p. 22f; and TJ, pp. 16�17. This commitmentto justification from common ground underwrites Rawls’s commitment todrawing on only weak assumptions regarding reasonableness in the origi-nal position argument.52 Since the reason of citizens qua citizens just is the reason of a liberaldemocratic body politic as a corporate artificial moral agent, the lattermay be regarded as acting autonomously (even when citizens reasonablydisagree in their political judgments) provided citizens honor the ideal ofreciprocity and the liberal principle of legitimacy and resolve their dis-agreements through constitutional democratic procedures themselvesfaithful to the ideal of reciprocity. For discussion, see my ‘‘Rawls’s WideView of Public Reason: Not Wide Enough,’’ supra.53 See LoP, especially Part II. For a sympathetic reconstruction of LoP,see my ‘‘Rawls on International Justice: A Defense, Political Theory,v. 32, 291�319, 2004.54 See LoP, pp. 63�66.55 See Henry Shue, Basic Rights: Subsistence, Affluence and US ForeignPolicy, 2nd edn, Princeton University Press, 1996, esp. Chs. 1�3.56 See The Concept of Law, pp. 193�200.57 To be sure, Hart does not argue that the minimum natural law con-tent of any legal system likely to endure among human beings must neces-sarily be extended to all human beings within the body politic. On hisview, it need only be extended to enough of them to make the legal sys-tem viable. Thus, for Hart, a slave-holding legal system may be a genuinelegal system able to generate genuine legal obligations (though perhapsnot moral obligations). See The Concept of Law, p. 200. Here it is impor-tant to keep in mind, before rejecting Hart’s view, that Hart did not setout to account for a moral obligation to obey for the law; he rather setout to account for the normative force of legal obligations as legal obliga-tions. In any case, Rawls does not reject Hart’s view of law or legal obli-gation as such. Instead he argues that political or legal authority is notlegitimate in the absence of ‘‘bona fide moral duties’’ to obey the law. SeeLoP, p. 66, note 5. And these duties cannot exist, Rawls and Soper agree,if what Hart called the ‘‘minimum natural law content’’ of any legal sys-tem is not extended to all subject to it.58 Lon Fuller makes a similar point about the rule of law and purpose-ful social interaction in The Morality of Law, Yale University Press, 1964.59 Rawls’s too-often overlooked references to Soper in LoP, p. 66, 67and 72, and in PL, p. 109, bear mention here.60 In Chapter 7 of his A System of Rights, Oxford University Press,1997, Rex Martin argues for a view similar in its emphasis on civil rightslegislation reciprocally advancing the interests of all to the view I am sug-gesting here.61 Nor is instability illegitimacy.

DAVID A. REIDY

Department of PhilosophyUniversity of Tennessee801 McClung TowerKnoxville, TN, 37996USAE-mail: [email protected]


RECIPROCITY AND REASONABLE DISAGREEMENT: FROM LIBERAL...

Documents

Transcript of RECIPROCITY AND REASONABLE DISAGREEMENT: FROM LIBERAL...