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Notes
See John Rawls, Political Liberalism (New York, NY: Columbia University Press, 1996); James W. Boettcher, “Respect, Recognition, and Public Reason,” Social Theory and Practice, Vol. 33, No. 2, (2007); Gerald Gaus, The Order of Public Reason (New York, NY: Cambridge University Press, 2011); Jonathan Quong, Liberalism Without Perfection (New York, NY: Oxford University Press, 2011); Kevin Vallier, Liberal Politics and Public Faith (New York, NY: Routledge, 2014).
See Jonathan Quong, “Public Reason,” in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Summer 2013 Edition); Gerald Gaus, “On Justifying the Moral Rights of the Moderns: A Case of Old Wine in New Bottles,” in Ellen Frankel, Fred D. Miller, Jr., and Jeffrey Paul, eds., Liberalism: Old and New (New York, NY: Cambridge University Press, 2007), p. 90.
See Derek Parfit, Reasons and Persons (New York, NY: Oxford University Press, 1984); Dennis McKerlie, “Egalitarianism and the Separateness of Persons,” Canadian Journal of Philosophy, Vol. 18, No. 2, (1988); Owen Flanagan, Varieties of Moral Personality (Cambridge, MA: Harvard University Press, 1991); David Brink, “The Separateness of Persons, Distributive Norms, and Moral Theory,” in R.G. Frey and Christopher W. Morris, eds., Value, Welfare, and Morality (New York, NY: Cambridge University Press, 1993).
See Thomas Nagel, The Possibility of Altruism (Princeton, NJ: Princeton University Press, 1970); John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971); Robert Nozick, Anarchy, State, and Utopia (New York, NY: Basic Books, 1974); Bernard Williams, “Persons, Character and Morality,” in Moral Luck (New York, NY: Cambridge University Press, 1981). Furthermore, at least a few call the fact of our separateness the most basic fact of morality. See John Findlay, Values and Intentions (London: George Allen & Unwin, 1961), pp. 235–236; Martha Nussbaum, Sex and Social Justice (New York, NY: Oxford University Press, 1999), p. 62; Bernard Williams, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985), p. 88.
Brian Barry, Theories of Justice (Berkeley, CA: University of California Press, 1989), p. 335.
James Griffin, On Human Rights (New York, NY: Oxford University Press, 2008), p. 22.
As I understand it, it is the controversial metaphysical and normative suppositions that are objectionable to political constructivists.
See Charles Larmore, “The Moral Basis of Political Liberalism,” The Journal of Philosophy, Vol. 96, No. 12, (1999).
It is worth noting that since all contemporary liberals (broadly construed) will arguably endorse some version of a liberty principle, it is the endorsement of a public justification principle that most demarcates public reason liberals from their liberal counterparts.
Nozick, op. cit., p. 33.
Ibid., p. 31.
Ibid., p. 33, emphasis added.
Ibid., pp. 32–33.
Ibid., p. 49.
Ibid., p. 50. Nozick speaks of meaning of life, but insofar as this notion is related to individuals shaping their own lives, I speak of meaning in life. The two notions are distinct in that the latter can exist without the former.
Nozick, op. cit., p. 51. This was a result of Nozick claiming that an appeal to the value we place on having the capacity to lead a meaningful life “bridges” the descriptive fact of our separateness with the normative claim that one should not treat others as mere means. But Nozick does not view the bridging notion as merely a bridging notion. As he remarks, “[t]his notion… has the right ‘feel’ as something that might help to bridge an ‘is-ought’ gap; it appropriately seems to straddle the two” (Ibid., p. 50, emphasis added). This, however, is problematic since it presses Nozick to worry that we might “need to answer the further question: ‘But why shouldn’t my life be meaningless?’” (Ibid., p. 51). That is, why should one strive for meaning in life? That this question is raised at all shows that Nozick views the value we place on having the capacity to lead a meaningful life not as a mere bridging notion, but as an element of the ‘ought’ portion of the is-ought gap.
I employ the term ‘psychology’ in a rather narrow sense as opposed to referring to the sum total of mental states and mental processes.
This is what makes practical deliberation, in the words of Bernard Williams, "in every case first-personal, and the first person is not derivative or naturally replaced by anyone." Williams 1985, op. cit., p. 68.
At the very least, having the ability to give personal meaning to one's life is a necessary condition of leading a meaningful (fulfilling) life. Any account of meaningfulness in life that ignores the value of personal meaning (in judging whether a life is meaningful or not) must confront the question ‘meaningful for whom?’ For if the notion of meaningfulness in life does not have at least some subjective basis, then the claim that meaningfulness in life is deeply important to individual persons loses its force. In saying that personal meaning is only necessary, I leave open the possibility that a condition of objective worth might be necessary as well. For a recent account of meaningfulness that incorporates both subjective and objective aspects, see Susan Wolf, Meaning in Life and Why it Matters (Princeton, NJ: Princeton University Press, 2010).
To say that coercion forces an individual to act involuntarily is not quite right. One might voluntarily act some way under the threat of force or harm. But it will still be the case that the person would have acted otherwise in the absence of the threat.
Individuals may self-alienate insofar as their actions are not genuine expressions of their psychology. Here I am only concerned with alienation that has a source external to the individual.
Cf. Gerald Gaus, “The Moral Foundations of Liberal Neutrality,” in Thomas Christiano and John Christman, eds., Contemporary Debates in Political Philosophy (Malden, MA: Wiley-Blackwell, 2009), p. 89.
In the words of Isaiah Berlin, to decide how another will act is “to treat them without wills of their own.” For Berlin, when I treat others in such a way I act as if their chosen ends are (for them) “less ultimate and sacred” than my chosen ends are for me. See Isaiah Berlin, in Henry Hardy, ed., Liberty (New York, NY: Oxford University Press, 2002), p. 184.
Similar principles have been endorsed by others. See Stanley Benn, A Theory of Freedom (New York, NY: Cambridge University Press, 1988), p. 87; Gerald Gaus, Justificatory Liberalism (New York, NY: Oxford University Press, 1996), p. 165; Gerald Gaus, Social Philosophy (Armonk, NY: M.E. Sharpe, 1999), pp. 118–119.
Kant believed that we treat others as mere means when we fail to respect them as autonomous and rational individuals. See Immanuel Kant, Groundwork of the Metaphysics of Morals (New York, NY: Cambridge University Press, 1997 [1785]), p. 38; G 4:430. Kant’s focus on autonomy and rationality helps to explain the intuition that it cannot simply be the fact of mere separateness that motivates his principle (for, if that were the case, Kant would have intended his principle to be extended to non-human animals). Rather, what is most important for Kant is the distinctively human capacity to identify ends, formulate life plans, and then to utilize our reasoning capacities to determine not just how to best pursue our personal goals and projects, but to do so in a morally acceptable way – i.e., in a way that respects others as autonomous and rational beings. For Kant, these are the features of human beings that give the notion of separateness its normative force. One interpretive challenge consists in determining the conditions in which one is guilty of failing to respect another as an autonomous and rational individual. I thank an anonymous referee for pressing for clarity on this matter.
There is extensive debate over what precisely the notion of self-ownership consists of. See, for example, Brian McElwee, “The Appeal of Self-Ownership,” Social Theory and Practice, Vol. 36, No. 2, (2010); David Sobel, “Backing Away from Libertarian Self-Ownership,” Ethics, Vol. 123, No. 1, (2012); David Sobel, “Self-Ownership and the Conflation Problem,” in Mark Timmons, ed., Oxford Studies in Normative Ethics: Volume 3 (New York, NY: Oxford University Press, 2013); Peter Vallentyne and Bas van der Vossen, “Libertarianism,” in Edward N. Zalta, ed., The Stanford Encyclopedia of Philosophy (Fall 2014 Edition). A right of self-ownership is not a single right, but rather a set of rights that demarcate some moral space with respect to one’s person. Libertarians have been challenged (see Sobel 2012, op. cit.) to articulate a conception of self-ownership that is robust enough to protect basic rights and liberties while not endorsing a notion of self-ownership that it so stringent that it generates a host of counterintuitive results. I will not take a stand here on which particular conception of self-ownership is ideal. I shall assume, however, that a right of self-ownership, at the very least, consists of a “very stringent right of control over and use of one’s mind and body that bars others from intentionally using one as a means by forcing one to sacrifice life, limb, or labour.” Michael Otsuka, “Are Deontological Constraints Irrational?” in Ralf M. Bader and John Meadowcroft, eds., The Cambridge Companion to Nozick’s Anarchy, State, and Utopia, (New York, NY: Cambridge University Press, 2003), p. 15. Moreover, it is important not to read too much into the ‘natural’ label. I understand the right to be natural since it is non-conventional, non-contractual, and is grounded in a feature of human life, namely in the capacity to strive for a meaningful life. See Hillel Steiner, “The Natural Right to the Means of Production,” The Philosophical Quarterly, Vol. 27, No. 106, (1977), pp. 41–49. As Eric Mack construes the notion, to say that individuals possesses a natural right is “not to say that persons are protected by some strange metaphysical shell. Rather, it is to assert that certain fundamental facts about each person provide reasons for others to be circumspect in their treatment of that person, for example, reasons to avoid treating that person as material which exists for their own use and purposes.” Eric Mack, John Locke (New York, NY: Continuum, 2009), p. 4.
Gerald Gaus remarks that “[c]oercion against one’s natural person is a quintessential instance of interference with agency.” Gaus 2011, op. cit., p. 352.
Some very minimal restraints are also placed on what ends one can pursue. If Max’s chosen end is to see how many people he can lock up in his basement against their will, then Max will be prohibited from pursuing that end given that it entails treating others as mere means.
See Eric Mack, “The Natural Right of Property,” Social Philosophy and Policy, Vol. 27, No. 1, (2010), p. 54.
Ibid., p. 62.
It is plausible that some very small set of acquired property rights could be grounded in an argument from the separateness of persons. One might, for example, argue that property rights which are the result of Lockean labor mixing are solely grounded in a natural right of self-ownership and, hence, follow from the argument from the separateness of persons. I do not deny this possibility. However, the problem with Locke’s labor-mixing argument is that it is not going to generate much in the way of acquired property rights in the contemporary world. So the recognition of this type of rights-generating action is not going to significantly increase the set of acquired property rights. Acquired property rights, for the public reason liberal, will mostly stem from rights-generating practices that must be publicly justified. See Mack’s helpful distinction between inherent-feature conceptions and practice conceptions of property rights (Ibid., pp. 54–55).
Ibid., p. 54, emphasis added.
Nozick may be willing to make an exception with regard to cases of “catastrophic moral horror.” See Nozick, op. cit., p. 30 fn.
Ibid., p. 31. If actual consent were the only permissible condition, then the acts would not be coercive (assuming the act of consent was not itself coerced). So, I am concerned with the idea that coercion can be justified even in the absence of actual consent. An important distinction is perhaps in order here. On a consent mode of justification, if a future action towards P has the attribute of being potentially-coercive, that action is justified only if P gives his or her actual consent. But all this means is that the attribute of being potentially-coercive is not realized (i.e., the act, when performed, is not in fact coercive). On such an account, there is no such thing as a legitimate coercive action since every legitimate action will be non-coercive in virtue of being consent based. One may instead, as public reason liberals typically do, appeal to a rational mode of justification in which the attribute of being potentially coercive is in fact realized, but is nevertheless legitimate if P has sufficient reason(s) to endorse the action (in light of a suitably-defensible account of what it means to have a reason).
As Gaus aptly puts it, “the base condition is liberty; what needs to be argued for and agreed upon is the limitation of liberty.” Gaus 1999, op. cit., p. 117.
I follow Gewirth with respect to some basic terminology. “A right is infringed when… the prohibited action is performed… A right is violated when it is unjustifiably infringed… [A] right is overridden when it is justifiably infringed… A right is absolute when it cannot be overridden in any circumstances.” Alan Gewirth, “Are there any Absolute Rights?” The Philosophical Quarterly, Vol. 31, No. 122, (1981), p. 2.
This does not entail the claim that societies should be politically structured to promote the actual living of meaningful lives. Respecting the capacity to strive for a meaningful life does not require promoting that capacity. See Otsuka 2011, op. cit., p. 50. To suggest otherwise is to make our normative principles responsive to claims about what is perceived to be ‘the good’ rather than to an individual’s moral status. To this point, the negative right of liberty expressed by PL is responsive to the moral status that we perceive individuals to already have. It does not bestow that status on individuals.
Distinctness, of course, does not entail uniqueness.
What should we say about the person who wishes to lead a meaningful life himself, but does not care about respecting the separateness of others? Such a person evidently wants to make an exception for himself. However, since the fact of our separateness is a feature of our species, he cannot deny the separateness of others without denying his own separateness. He will have no moral grounds from which he can demand that others respect his separateness while he simultaneously fails to respect their separateness (by treating them as a mere means). His liberty must be understood as a liberty compatible with the equal liberty of all others.
Rawls 1971, op. cit., p. 27.
Ibid., p. 12.
Ibid., p. 137.
To reiterate, I am using the term ‘psychology’ narrowly to refer to one’s beliefs, intentions, sentiments, and a variety of desire-like psychological states. Individuals behind the veil of ignorance are not stripped of certain mental processes or even of knowledge of a limited set of facts pertaining to how human societies generally function. See ibid., p. 137. But they are stripped of their knowledge of what Rawls calls the “special features” of their psychologies which includes, perhaps among other things, those features of one’s psychology that I have focused on here.
This claim entails setting aside some abnormal cases (e.g., cases of conjoined twins and dissociative identity disorder).
Ibid., p. 139, emphasis added.
T.M. Scanlon, What We Owe to Each Other (Cambridge, MA: Belknap Press, 1988), p. 105.
Cf. Larmore, op. cit., p. 607.
A. John Simmons describes this form of justification as “the impersonal presentation of objectively good reasons or good arguments to a conclusion…” A. John Simmons, “Justification and Legitimacy,” Ethics, Vol. 109, No. 4, (1999), p. 762.
While I agree with the public reason sentiment that there is a strong case for preferring justification-to (at least in the vast majority of moral and political situations involving coercion), I also think it would be a mistake to say that impersonal justification can never suffice. As I have argued, some aspects of the normative framework (namely, PL) needed to underwrite a requirement of public justification rely on impersonal justification. While this approach alienates a radical commitment to justification-to, it avoids the illiberal dissenter problem that has generally been a nuisance to public reason liberals. For a helpful discussion of this issue, see Chad Van Schoelandt, “Justification, Coercion, and the Place of Public Reason,” Philosophical Studies, Vol. 172, No. 4, (2015). So, one consequence of my construal of the normative foundations of public reason liberalism is that justification-to is not necessary when the purpose of coercion is to stop an individual from treating another as a mere means. If a man is attempting to attack an innocent person with a knife, then the coercion of the attacker is justified (in virtue of his violation of PL) even if the attacker does not (or could not) rationally appreciate or access the reasoning for the coercion. This is further discussed below.
Rawls 1996, op. cit., p. 144.
Ibid., p. 36.
See ibid., p. 55ff.
See Rawls’ burdens of judgment. Ibid., pp. 56–58.
David Enoch, in arguing against justification-to, challenges this claim. See David Enoch, “Against Public Reason,” in David Sobel, Peter Vallentyne, and Steven Wall, eds., Oxford Studies in Political Philosophy, Volume 1 (New York, NY: Oxford University Press, 2015), p. 131.
The practice of epistemic idealization complicates matters. To engage in epistemic idealization, with respect to reason ascriptions, is to consider what reasons a person would acknowledge for oneself if that person were deliberating under some counterfactual circumstances. For example, we might consider how Zenith would reason if she were in possession of a bit more relevant information, had more advanced reasoning skills, were without some poorly-formed beliefs, and so on. The practice of epistemic idealization complicates the issue under consideration insofar as public reason liberals who engage in the practice must balance the importance of justification-to with the need for epistemic idealization. The challenge, of course, is idealizing enough such that relatively superficial defects in reasoning do not upset the public justification of a coercive law, but not idealizing so much that there is no plausible way in which the justification of a coercive law could be understood as a justification to the actual to-be-coerced citizens. Gaus (2011, op. cit.) develops an account of epistemic idealization that looks to answer this challenge.
We have now returned to the same concerns that motivated the adoption of a principle of liberty in §2.
It is not uncommon for public reason liberals to argue that respect for persons demands justification-to. Larmore, for example, remarks that “to respect another person as an end is to require that coercive or political principles be as justifiable to that person as they presumably are to us.” Larmore 1999, op. cit., p. 608, emphasis added. Gaus and Vallier note that public reason liberalism “is based on the idea that if we are to respect others as free and equal, laws must be justified to them.” See Gerald Gaus and Kevin Vallier, “The Roles of Religious Conviction in a Publicly Justified Polity,” Philosophy & Social Criticism, Vol. 35, No. 1–2, (2009), p. 55. David Enoch, a critic of public reason liberalism, frames what he takes to be the standard public reason argument for justification-to as follows: “for the Pope (or any of his followers) to apply his Catholic-based directives to you non-believer as you are, will amount to giving more political weight to his (or their) beliefs than to yours, and so will amount not only to failing to treat you as free, but also to failing to treat you as an equal citizen… when we combine these two underlying intuitions, we get the slogan – the justifiability-to requirement follows from the commitment to treat each other as free and equal.” Enoch op. cit., p. 115.
I am not interested in cases in which agents explicitly consent (without coercion) to be subjected to an action that would, absent uncoerced consent, treat that person as a mere means. Such cases are not in need of justification (or, one might say, are already justified).
Cf. Gerald Gaus, “The Place of Religious Belief in Public Reason Liberalism,” in Maria Dimova-Cookson and Peter M.R. Stirk, eds., Multiculturalism and Moral Conflict (New York, NY: Routledge, 2010), p. 21; Vallier, op. cit., p. 24.
It is a requirement of public justification in that if all individuals subject to a coercive policy possess (perhaps counterfactually) sufficient reasons to agree to the policy, then it is deemed reasonable from all points of view.
See Steven Wall, “On Justificatory Liberalism,” Politics, Philosophy & Economics, Vol. 9, No. 2, (2010), p. 131. While his intention is unclear, Wall may actually intend to argue the stronger point that not all coercive actions require justification simpliciter.
For a brief overview of why a public reason liberal might not be pleased with this, see Mack’s discussion of Gaus’ account of public reason liberalism. Eric Mack, “Inside Public Reason,” Criminal Law and Philosophy, Vol. 7, No. 2, (2013), pp. 400–402. Acknowledgments: I would like to thank Eric Mack, Bill Glod, Gerald Gaus, and one anonymous referee for this journal for helpful comments on earlier drafts of this article.
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Tyndal, J. The Separateness of Persons: A Moral Basis for a Public Justification Requirement. J Value Inquiry 51, 491–505 (2017). https://doi.org/10.1007/s10790-017-9590-0
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DOI: https://doi.org/10.1007/s10790-017-9590-0