Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of the logic of (...) normative standards—the determinate threshold conception—that the critic attributes to the putatively undermined account of legitimacy. The paper further claims that when we abandon threshold conceptions of the logic of legitimacy in favor of regulative-ideal conceptions, then the objections, from bootstrapping paradoxes to the very idea of constitutional democracy, disappear. It concludes with considerations in favor of adopting a more demanding conception of the regulative ideal of constitutional democracy, advanced by Habermas, focusing on potentials for developmental learning. (shrink)

In this stimulating work of political philosophy, acclaimed philosopher G. A. Cohen sets out to rescue the egalitarian thesis that in a society in which distributive justice prevails, peopleâes material prospects are roughly equal. Arguing against the Rawlsian version of a just society, Cohen demonstrates that distributive justice does not tolerate deep inequality. In the course of providing a deep and sophisticated critique of Rawlsâes theory of justice, Cohen demonstrates that questions of distributive justice arise not only for the state (...) but also for people in their daily lives. The right rules for the macro scale of public institutions and policies also apply, with suitable adjustments, to the micro level of individual decision-making. Cohen also charges Rawlsâes constructivism with systematically conflating the concept of justice with other concepts. Within the Rawlsian architectonic, justice is not distinguished either from other values or from optimal rules of social regulation. The elimination of those conflations brings justice closer to equality. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the (...) institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

What is political philosophy’s relation to moral philosophy? Does it simply form part of moral philosophy, focusing on the proper application of certain moral truths to political reality? Or must it instead form a more autonomous discipline, drawing its bearings from the specifically political problem of determining the bounds of legitimate coercion? In this essay I work out an answer to these questions by examining both some of the classical views on the nature of political philosophy and, more particularly, some (...) recently published writings by Bernard Williams and G.A. Cohen. (shrink)

One of political liberalism’s central commitments is to a principle of public reason. Political liberals frequently justify this principle by appeal to considerations of respect. In this article, I argue that political liberalism cannot be grounded in a moral principle of respect for persons. Instead, I argue that a particular interpretation of the principle of public reason can be justified as a key component of a political conception of mutual civic respect.

Public reason accounts commonly claim that exercises of coercive political power must be justified by appeal to reasons accessible to all citizens. Such accounts are vulnerable to the objection that they cannot legitimate coercion to protect basic liberal rights against infringement by deeply illiberal people. This paper first elaborates the distinctive interpersonal conception of justification in public reason accounts in contrast to impersonal forms of justification. I then detail a core dissenter-based objection to public reason based on a worrisome example (...) advanced by Jonathan Quong. While we may be able to impersonally justify coercing the illiberal dissenter, public reason liberals must explain how we can interpersonally justify such coercion—meaning justify given the perspective of the dissenter. The two prominent strategies for dealing with dissenters involve idealization of reasoning and requiring liberal values; I show that these strategies do not succeed in a way compatible with the public reason project. That is, the prominent strategies leave public reason theorists with a dilemma between denying the legitimacy of using coercion to protect core freedoms against deeply illiberal people or abandoning the fundamental public reason project. I conclude by proposing a different answer to public reason liberalism’s fundamental question: what requires justification? On my account, it is not that coercion requires interpersonal justification for its permissibility, but that such justification is necessary as a constitutive element of a kind of moral community. (shrink)

A common objection to the idea of public reason is that it cannot resolve fundamental political issues because it excludes too many moral considerations from the political domain. Following an important but often overlooked distinction drawn by Gerald Gaus, there are two ways to understand this objection. First, public reason is often said to be inconclusive because it fails to generate agreement on fundamental political issues. Second, and more radically, some critics have claimed that public reason is indeterminate because it (...) cannot provide any citizen with sufficient reason(s) for making important political decisions. Against the first of these objections, I argue that the purpose of public reason is not to end reasonable disagreement. Rather, it is to provide a suitable framework of values and principles within which citizens may resolve their moral and political differences. Against the second objection, I argue, first, that the indeterminacy of public reason is much less common than its inconclusiveness; and, second, that there are second-order decision-making strategies that may enable citizens to cope with cases of indeterminacy. The incompleteness of public reason, whether it takes the form of inconclusiveness or indeterminacy, is not a reason for citizens to abandon their commitment to public justification. (shrink)

This paper addresses the question of whether the duties associated with public reason are conditional on reciprocity. Public reason is not a norm intended to stabilize commitment to justice, but a moral principle, albeit one that is conditional on reciprocity because grounded in the idea of mutual respect despite ongoing moral disagreement. We can build reciprocity into the principle by stipulating that unanimous acceptability is required only with respect to points of view accepting the principle. If compliance with law is (...) assured, then the duties of public reason associated with authorship of law should be considered conditional on reciprocity only in this ‘internal’ sense, which is not proportional but bi-lateral. (shrink)

This article traces John Rawls’s debt to Frank Knight’s critique of the ‘just deserts’ rationale for laissez-faire in order to defend justice as fairness against some prominent contemporary criticisms, but also to argue that desert can find a place within a Rawlsian theory of justice when desert is grounded in reciprocity. The first lesson Rawls took from Knight was that inheritance of talent and wealth are on a moral par. Knight highlighted the inconsistency of objecting to the inheritance of wealth (...) while taking for granted the legitimacy of unequal reward based on differential productive capacity. Rawls agreed that there was an inconsistency, but claimed that it should be resolved by rejecting both kinds of inequality, except to the extent they benefitted the worst off. The second lesson Rawls learned from Knight was that the size of one’s marginal product depends on supply and demand, which depend on institutional decisions that cannot themselves be made on the basis of the principle of rewarding marginal productivity. The article claims that this argument about background justice overstates its conclusion, because the dependence of contribution on institutional setup is not total. Proposals for an unconditional basic income may therefore have a strike against them, as far as a reciprocity-based conception of desert is concerned. If we follow Knight’s analysis of the competitive system, however, so too does the alternative of leaving determination of income up to the market. (shrink)

Philosophy &Public Affairs, Volume 47, Issue 1, Page 72-103, Winter 2019.

The equal political liberties are among the basic first-principle liberties in John Rawls’s theory of Justice as fairness. Rawls insists, further, that the “fair value” of the political liberties must be guaranteed. Disavowing an interest in fair value is what disqualifies welfare-state capitalism as a possible realizer of Justice as fairness. Yet Rawls never gives a perspicuous statement of the reasoning in the original position for the fair-value guarantee. This article gathers up two distinct strands of Rawls’s argument, and presents (...) it in a straightforward sequence. Justice as fairness is contrasted to a competitor political conception of justice that is just like it but without the fair-value guarantee. A schema of the two-strand argument is presented in the Appendix. (shrink)