In The Order of Public Reason, Gerald Gaus uses Hayekian insights to give a contractarian justification for the specific social rules the rules that comprise the social order of a free people. But in doing so, Gaus inadvertently endorses a kind of skepticism about our ability to justify the institutions that comprise our social order as a whole. The disadvantage of a political theory so pervasively skeptical is that, while contractors can arrive at a series of specific solutions to their social problems, they have no way to assure themselves that their moral nature and their moral practices as a whole are sufficiently sound that the rules they endorse are genuinely morally binding. I argue that this problem can be solved in political practice through the adoption of a civil religion. Civil religions provide narratives and social practices that assure members of free orders that their regimes are good or justified on the whole. In this way, we can introduce the idea of civil religion into contractarian political theory as a social technology for sustaining a free social order.
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Hayek develops these two themes in a compact form in his 1937 “Economics and Knowledge” piece. See Hayek 1948, pp. 33–56.
On Gaus’s view, many laws can be understood as a subset of social-moral rules.
Prior to OPR, Value and Justification details his most extensive effort. See Pt. II, A Theory of Moral Justification, pp. 251–378.
Demonstrating the conclusion that only rule-following punishers can solve the problems raised by the need for public justification is arguably the most extensive task in the book, extending from pp. 53–182, first with the demonstration that instrumental reasoners cannot rationally and stably cooperate, and second with the argument that rule-following punishers can.
For Gaus, the appropriate conception of punishment is moralized—it begins by evoking negative sentiments like resentment and guilt, though at the legal level coercive sanctions will be applied. Developing an appropriately cognitive and moralized conception of punishment is a critical aim of Chapter 4.
Members must also determine whether rules impose excessive moralization costs. Ibid., pp. 310–321.
As is illustrated in the proceeding part of Chapter IV.
Here Gaus points to his defense of the poverty of what he calls the “pure liberty” view on the grounds that it deprives persons of bonds of friendship and love. But Gaus nowhere to my knowledge connects the renunciation of the pure liberty view to the renunciation of social morality. Reconstructing the connection would take us too far afield. See the argument in Gaus 1990, chapter VI. I suspect he has section 17.3.3 in mind.
Emphasis in original.
Note that Rawls had a detailed account of why we should endorse our nature as moral persons, specifically our sense of justice, in TJ, so our question is not without precedent. See Rawls 1971, pp. 496–505.
Bellah 2011 overviews a great many examples in his analysis of mythic religion and its relationship to ancient monarchy.
Keith Hankins points out that answering the question of global legitimacy may only require assurance that our practice isn’t especially bad or abhorrent, not whether it is fundamentally good or righteous, such that assurance may not be a significant concern, but many members of the public will want more than the minimal amount of information required to assuage their worry, but rather a compelling, enduring answer to their concerns.
Though, famously many social democratic liberals see the need for a secular civil religion, which was a prominent feature of John Dewey’s political thought, so the idea should not be so foreign. See Dewey 2013.
Importantly, we have some evidence that free secular orders can be stable, as demonstrated by the North Atlantic democracies (as opposed to forcibly secularized Eastern European and Russian Federation states). However, these orders have been largely secular for only half a century, and generally have not faced the sort of moral crisis that civil religion may help ameliorate, with the potential exception of Germany. Notably, there is evidence to suggest that the extensive social democratic states that govern these orders take on the functions of a deity in promoting social cooperation. See Norenzayan 2013, 170–192.
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I would like to thank Gerald Gaus, John Thrasher, Keith Hankins, Chad Van Schoelandt, Matt Zwolinski, Kyle Swan, and Paul Weithman for helpful comments on this paper.
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Vallier, K. Gaus, Hayek, and the place of civil religion in a free society. Rev Austrian Econ 30, 327–352 (2017). https://doi.org/10.1007/s11138-016-0359-7
- F.A. Hayek
- John Rawls
- Gerald Gaus
- Civil religion
- Public reason