Estlund’s Democratic Authority makes much of the idea of acceptability requirements for political justification. Acceptability requirements come in different versions, and one respect in which those versions can differ is what they are requirements for. They might be requirements for laws, policies, procedures, constitutional structures, the kinds of reasons that citizens or certain officials can give in certain public fora, and so on; they might also require acceptability as a condition for justification quite broadly, for political or legal authority more narrowly, or for political legitimacy — i.e., the moral permissibility of a government’s enforcement of its laws by coercive or punitive means. For Estlund, as for many, the most important application of acceptability requirements is to legitimacy, since coercion raises peculiarly urgent questions of justification. The rough idea of an acceptability requirement on legitimacy is that laws backed by coercion must be acceptable to the citizens that they purport to govern, and must be acceptable to them despite their deep moral, religious, and philosophical disagreements.
Discussing the views of Joshua Cohen, Estlund writes:
For Cohen the fundamental tenet of a deliberative account of democratic legitimacy is the principle that coercive political arrangements and decisions are morally illegitimate unless they can be justified in terms that can be accepted by citizens with the wide range of reasonable moral, religious, and philosophical views likely to emerge in any free society. (Democratic Authority, 91)
Earlier in the book, Estlund cites Rawls describing what he calls the “liberal principle of legitimacy”:
Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason. (Rawls, Political Liberalism, 137, cited on Estlund, 43)
Questions arise about the details of different formulations of the requirement, and Estlund helpfully discusses the general idea of acceptability requirements in a way that abstracts from these details (chapter 3). He distinguishes between versions that require actual acceptance and those that merely require “qualified acceptability” – acceptability to people whose views are not disqualified in one way or another by their flagrant irrationality, insanity, or what not. Estlund thinks, plausibly but perhaps not with as much argument as we might like, that actual acceptance cannot be a reasonable requirement because it would allow just any objection to a law, even a crazy or flagrantly vicious objection, to render it illegitimate (4, more hesitant on 46-47). Acceptability requirements rarely insist on actual acceptance, however, but instead qualify the acceptability required in terms of reasonableness: Cohen’s democratic legitimacy requires justification in terms acceptable to people with reasonable views, Rawls’ liberal legitimacy requires justification in terms of principles and ideals that all citizens can reasonably be expected to endorse, and so on. I agree with Estlund that actual acceptance is not a plausible requirement, but I’m still perplexed by an apparent problem for the very idea that laws must be justified in terms that people subject to those laws can reasonably accept.
The problem is this: either this requirement will be trivial or it will not plausibly justify the kinds of political arrangements that philosophers like Rawls, Cohen, and Estlund take to be justifiable in these terms. Let’s take each horn of this dilemma in turn.
First, the requirement will be trivial if it simply means that laws must be justifiable in terms acceptable to people who reason well, because people who reason well can presumably accept any justification that is in fact reasonable. It is, I take it, reasonable to hold that murder, unprovoked assault, and rape are severe injustices and that law ought to prohibit them with threat of sanction if it ought to prohibit anything with threat of sanction. Any reasonable person can accept this view and these laws precisely because the view and the laws are reasonable and the rejection of them is not. More controversially, suppose that aborting a perfectly healthy fetus that poses no threat to its mother’s health in the first trimester of a pregnancy is not unjust and that there are no good grounds for supposing that it is unjust (all the objections are flawed, suppose, so the anti-abortion view is rationally unjustified — not, coincidentally, my own view, but certainly a widely held one); if so, then on one natural interpretation of the idea of ‘a justification that a reasonable person can accept,’ this is also a view that a reasonable person can accept, because it’s a reasonable view and there are no reasonable objections to it. Of course some people do not in fact accept it, but if they are reasonable then they certainly can accept it, whatever psychological obstacles there may be for them to do so. If this were all that reasonable acceptability required, it would be trivial, because it would simply amount to saying that laws should be reasonable and that there should not be reasonable objections to them. It would exclude appeals to religious doctrines for which there is no sufficient rational warrant independent of faith in a purported divine revelation or some sort of non-rational religious experience, but this is not much of a restriction. Rawls’ liberal principle of legitimacy, for instance, interpreted in this way, says nothing that proponents of Thomistic natural law like Jacques Maritain or John Finnis would not say, since they limit legitimate state coercion to principles that they regard as accessible to common human reason without reliance on any purportedly revealed religious doctrine or authority.
Doubtless, however, that trivial interpretation is not what defenders of reasonable acceptability requirements typically intend. What they have in mind instead is, I take it, something like the notion that the justifications offered for legitimate laws need to be acceptable to people without their having to give up or contradict their own deeply held moral, religious, or philosophical views. The qualification that these people or these views need to be reasonable is meant to exclude some blatantly irrational, insincere, or otherwise severely flawed points of view. Setting aside such unreasonable points of view, everyone can accept that murder, unprovoked assault, and rape are injustices that ought to be prohibited by law, even though reasonable people disagree deeply about why these things are unjust or ought to be prohibited by law; these laws can be justified in terms that we can all accept without having to resolve those disagreements. By contrast, not everyone can agree that first-trimester abortions of healthy fetuses posing no health risks to their mothers are not unjust, and the reasonable acceptability requirement does not allow us to justify legally permitting abortions on those grounds. Rather, those who oppose such abortions on moral, religious, or philosophical grounds should appreciate that the question is subject to reasonable disagreement, and that the law should not prohibit such abortions precisely because the prohibition depends for its justification on principles that reasonable people can reasonably reject and perhaps cannot reasonably accept given their views. On this interpretation, in contrast to the trivial reading, Thomistic natural law justifications for prohibiting abortion flout the reasonable acceptability requirement.
Here, however, we encounter the second horn of the dilemma. We can and should agree that many moral and political questions are subjects of reasonable disagreement. If, however, we refuse to legislate on any question that is subject to reasonable disagreement, then we will, I think, either refuse to support a very great deal of progressive and social democratic legislative proposals — the kind of proposals that thinkers like Rawls, Cohen, and Estlund endorse — or we will implausibly, if not disingenuously, insist that opposition to these proposals turns out to be blatantly unreasonable after all. Consider several examples of things that actually give rise to political disagreement in the United States: should we tax incomes above 10 million at 70%? Should we perhaps have no federal income tax (or any income tax) at all? Should we raise the minimum wage, or abolish minimum wage laws? Should we prohibit small businesses from discriminating against homosexual couples and others when those business owners sincerely believe that doing business with such people implicates them in immoral behavior? Should we require small businesses to contribute to health insurance for birth control and abortions when the business owners similarly regard this as material co-operation with evil? It seems that we either have to refuse to legislate in these ways on the grounds that such legislation cannot be justified to all those whom it would govern in terms that they can accept, or we have to insist that there can be no reasonable or qualified objection to these laws.
No doubt many of us think, with good reason, that the objections to these laws are in fact unreasonable, all things considered; in the trivial sense, all reasonable people can accept them, and perhaps fully rational people will accept them simply by virtue of being reasonable. They cannot, however, be justified in terms that all honest, decent people can accept without abandoning or contradicting their deeply held moral, religious, or philosophical beliefs. Libertarians will object to some or all of them; conservative Catholics and other religious folks will object to others. The reasonable acceptability requirement, on its non-trivial interpretation, is supposed to require us to justify laws in terms that people like these can accept consistently with their deeply held beliefs. But libertarians and conservative Catholics exist, and they cannot accept any (or at least hardly any) justification for these laws consistently with their moral, religious, and philosophical views. If the abortion example is the appropriate model, the reasonable acceptability requirement should prohibit us from offering justifications of these laws that presuppose or entail that libertarianism or conservative Catholicism are mistaken. Rather, we should see the progressive legislation as parallel to the proposal to ban abortion: it’s not that these proposals are false or plainly mistaken, it’s that they can’t be justified in terms that everyone can reasonably endorse.
Well, that seems to be how we should look at it unless we have reason to see libertarian and conservative Catholic objections as so blatantly unreasonable that we can dismiss them in the way that Estlund thinks we can dismiss the objections of people who are “crazy or vicious” (4). Of course there is no shortage of progressives who do dismiss libertarians and conservative Catholics as crazy and vicious (with vices including stupidity and much worse besides). I am not, however, at all prepared to maintain that libertarians and conservative Catholics are, as a rule, crazy or vicious. On the contrary, I know many highly intelligent, sincere, and decent libertarians and conservative Catholics. To my mind, to dismiss them and their views as beyond the pale would be no more reasonable than the evangelical Christian’s dismissing my views on the grounds that I do not accept the revealed authority of the Bible.
One apparent implication of this line of reasoning, though, is that if reasonable acceptability requirements are to be non-trivial, they should tell in favor of a highly libertarian approach to politics and very much against a progressive, social democratic approach. To my mind, this implication is a good reason to reject reasonable acceptability requirements of the non-trivial variety. This is not to say that I in no case endorse the view that we should not legislate on some subject of reasonable disagreement precisely because it is a subject of reasonable disagreement; that is more or less my own view on abortion, for instance. Where I think my version of this sort of view departs from the non-trivial reasonable acceptability requirement is in allowing and even insisting that citizens continue to argue publicly with one another about things like abortion, minimum wage, progressive tax rates, same-sex wedding cakes, and so on, and that they feel free to offer whatever arguments they deem relevant to the issues in the interest of passing legislation that they regard as justified.
It’s possible, though, that the dilemma I’ve posed for reasonable acceptability requirements is a false one. One way in which it might be false is suggested by Estlund’s ‘epistemic proceduralism’ and his treatment of procedural fairness as retreat from substance in cases of substantive disagreement. Perhaps if we construe the acceptability requirement as applying to democratic procedures rather than to the substantive principles invoked by voters or legislators in the justification of this or that legislative proposal, a non-trivial version of the requirement can avoid either making us all libertarians or encouraging us to dismiss libertarians and others as wildly irrational, vicious people. I’m not so sure, but then I’m rarely sure about much.
Policy of Truth 
Have you followed the debates over the public-reason approach over at BHL?
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I haven’t. I knew that some folks in that orbit draw on broadly Rawlsian public reason sorts of considerations in support of libertarian conclusions, and reading things of that sort there years ago played a role in my coming to think that the approach may point in that direction more than in the direction of standard progressive politics. Of course if the dilemma I pose here is really a dilemma, it won’t be a dilemma for libertarians.
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We should probably make an effort here to engage with some of those posts.
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By the way, I could probably get John Tomasi to engage us on these issues in some way.
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BHL posts on public reason:
Kevin Vallier:
http://bleedingheartlibertarians.com/2013/05/eudaimonism-cannot-save-the-non-aggression-principle/
Roderick:
https://bleedingheartlibertarians.com/2013/05/eudaimonist-reason-versus-public-reason/
Vallier (on a different topic):
https://bleedingheartlibertarians.com/2016/07/religious-toleration-generalized-a-quick-case-for-public-reason-liberalism/
Jason Brennan:
https://bleedingheartlibertarians.com/2018/04/public-reason-and-idealization/
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On a quick re-reading, I recall the first posts by Vallier and Roderick. I am no fan of the NAP — I think that I (and you) can justly be coerced to do at least some things that I have reason to do when I will not otherwise do them, even when my failure to do those things would not involve coercing someone else — but I thought in 2013 that Roderick had the better of that argument, and on summary re-reading now I think the same. It’s a good dialectic, really: I don’t find NAP libertarianism plausible at all, but I don’t see how those who do have any reason to accept public reason arguments, and Roderick’s response shows why even though I cannot get on board with everything he says there: the whole virtue of public reason arguments is supposed to be that we can accept them despite our disagreements, but public reason arguments are as least as controversial as any other theoretical contentions. Hence I conclude that we ought to just keep disagreeing theoretically and arguing about it, but co-operate practically whenever possible, and reject the impulse to render all our disagreements politically irrelevant by attempting to find some Archimedean point of reasonable acceptability.
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I read the Vallier post and started on Roderick’s post. Have several comments, but I’ll just share this one on the very beginning of Roderick’s piece. Clearly, my very “truth-y” reading of public-reason liberalism is quite different from what many public-reason liberals have in mind.
“Kevin V. thinks eudaimonism makes a better fit with public-reason liberalism than with NAP. By contrast, I don’t think eudaimonism and public-reason liberalism are compatible. Eudaimonism is a “comprehensive doctrine,” a “conception of the good,” and one that regards the content of justice as being essentially informed by (though also informing) the other virtues, and more broadly by an overall conception of human flourishing. Public-reason liberalism, by contrast, holds that we can determine the content of justice without relying on any specific conception of the good. The contrast seems pretty stark to me.” – Roderick, from the above link
My comment: According to a minimalist conception of public-reason liberalism (PRL) that is not so hostile to the truth about morality and justice as is perhaps typical of PRL, it is an objective moral fact that, in order to justify the content of a law to be coercively enforced, the state (or anyone, on behalf of the state or society as a whole) cannot appeal to reasons that contravene the central “beliefs of conscience” of any of its citizens (as long as these beliefs are not too obviously immoral). Call this the “minimalist collective coercion and conscience principle” or CCC-min. Eudaimonism (or any other comprehensive theory in normative ethics) might be, but typically is not, held as a “belief of conscience.” More importantly, there is nothing very obviously odd or incongruous about a version of eudaimonism (or any other comprehensive theory in normative ethics) that affirms CCC-min. (Full disclosure: I find something like CCC-min at least somewhat, maybe more than somewhat, plausible.)
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I’ve long taken it for granted that there is more to the public reason approach / political liberalism than that, but my recent exchanges with Irfan have made me think that I’ve wrongly been conflating distinct issues. Roderick’s post seems to work with the conception of public reason that I had taken for granted. I’m inclined to agree with him about it so construed. Your CCC-min is a different story; at the very least, I find it far more plausible and I don’t think it faces the particular problems that Roderick identifies.
You’ve employed the notion of beliefs of conscience several times recently. It might help to say more about what it’s supposed to be for something to be a belief of conscience. Depending on how narrowly we’re supposed to construe that notion, your CCC-min might be hard for any liberal to reject.
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Yeah, I think this is one core strand of PRL – the one that I find plausible! Here’s how I’d unpack ‘beliefs of conscience’ (first attempt): ‘moral-psychologically engaged normative and descriptive beliefs, usually unified into something like a view of the world, one’s place in it, and how we are to live in it’. This characterization probably still need clarification or improvement – in particular ‘moral-psychologically engaged’ needs to be unpacked (something involving holding others and oneself accountable in familiar ways like expressing blame) and the overall property needs to be something that is common, perhaps nearly unavoidable, even in non-religious people. I don’t say ‘comprehensive doctrines’ because I think this mashes together the truth-phobic and the respecting-conscience elements of full-blown or typical PRL.
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I have two different comments on your post. This one is just a footnote (in the form of a friendly amendment) to the second horn of your dilemma.
You quote Estlund’s dismissal of the “crazy or vicious” from page 4 of Democratic Authority. Let me quote the whole sentence, which is part of a rhetorical question:
One answer: because the objections of someone who is “say, crazy or vicious” could still be true, indeed track the truth in significant ways, despite their craziness or viciousness. Estlund seems to be assuming either that “craziness or viciousness” is systematically at variance with the truth, or even if it isn’t, if we bracket truth for political purposes, it won’t matter. He’s not obviously entitled to either move, but it’s the first one that interests me here.
Estlund’s invocation of “craziness” and “viciousness” both strike me as handwaving (especially the former). He claims on the same page that unreasonable views are “morally weightless,” but ignores the fact that the term “crazy” is clinically meaningless. No responsible mental health practitioner uses the term. DSM-5 is the gold standard of clinical taxonomy in psychiatry and clinical psychology, and contrary to popular belief, it doesn’t purport to taxonomize mental illness, much less “craziness,” but mental disorder, where disorders are understood “dimensionally,” i.e., as lying on spectrums of severity. Understood in this way, lots of people lie on some spectrum of mental disorder. It’s not obvious–not even close to obvious–that so conceived, mental disorders incapacitate those who have them to the point of literally disqualifying what they have to say on a given topic. There is no obvious inference from “S has disorder D” to “dismiss everything S has to say about politics”–not for schizophrenia, not for bipolarity, not for depression, anxiety, OCD, PTSD, dissociative disorders, eating disorders, sexual disorders, or gender dysphoria.
I mention the last example deliberately. Just to belabor the obvious: gender dysphoria is by DSM-5’s account a mental disorder. Would Estlund say that gender dysphoric people are “crazy,” and that their views are morally weightless? Ben Shapiro may think that, but I wouldn’t have thought David Estlund would. And he may not, at least for that example. But what applies to gender dysphoria has general application to other sorts of “craziness.” If we’re obliged not to dismiss gender dysphoric people as “crazy,” perhaps we’re obliged to take other “crazy” people more seriously than Estlund’s rhetoric would suggest.
I don’t mean, of course, that we should take the ravings of a floridly psychotic schizophrenic seriously during his psychotic break in a seminar on public reason. But it isn’t obvious that you can dismiss the same schizophrenic after his psychotic break is over.
In any case, the larger point is that these handwaving references to “craziness” are extremely oversimplified and extremely misleading. Estlund seems to use the word “crazy” more as a rhetorical way of dismissing views he regards as outside the pale than as a serious clinical term–which makes sense, because it’s not a serious clinical term. But once you get serious about the clinical terminology, his claim about dismissing “crazy” views has much, much narrower application than he realizes. It’s worth noting that the issue of voting and mental illness is extremely contentious. Reading Estlund, you might conclude that the contention itself should be dismissed as “crazy.”
http://jaapl.org/content/early/2018/10/31/JAAPL.003780-18
So maybe he’s more of an epistocrat than he realizes.
Something similar might be said about culpability. There is such a thing as culpable error or ignorance, but even apart from the difficulty of identifying cases of it, it isn’t obvious that you can dismiss someone’s views because those views express culpable error or ignorance. Culpable error or ignorance is compatible with a high degree of intellectual sophistication. It doesn’t follow from the fact of culpable error that the culpably wrong person’s claims are either epistemically or morally “weightless.” Certainly not epistemically weightless in the case where the culpably wrong person can argue circles around his non-culpable interlocutors, and only morally weightless insofar as the view being defended is so wildly culpable that there is literally nothing of value in it. But it’s not clear what satisfies that description. And you’d need to know before you signed on to Estlund’s view.
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I think I agree with all of that, but I don’t see it as more than tangentially relevant. First, it’s clear that Estlund is, on p. 4, rejecting the plausibility of actual acceptance as a general requirement for legitimacy (“But this is not a plausible constraint anyway.”). It’s of course possible that he’s being cavalier about mental health, but I take it that “crazy” is not supposed to be a clinical psychological category, but a description that applies, when it does, in virtue of some person or view’s being so blatantly irrational that we cannot even begin to take the view seriously or to regard the person as someone to be reasoned with. There’s perhaps an important discussion to be had about whether we should use the word ‘crazy’ this way, given its association with mental disorder and the fact that people with various mental disorders are not ipso facto unreasonable (after all, we depressives know that we’re the realists here and that the rest of you are just drunk on your own cognitively distorting happiness neurochemicals). I suspect that Estlund would concede that he’s hand-waiving there; the point is just that we should recognize that there are some people, points of view, or arguments that are so irrational that we can’t even begin to take them seriously, and whether we regard these as crazy — implying non-culpability — or vicious — implying culpability — is not especially relevant. You concede this point, I take it, insofar as you refuse to take some people and points of view seriously. Your remarks on the Black Hebrew Israelites show this; whether or not the particular individuals involved could be diagnosed with a particular mental disorder is beside the point. From what Estlund says, I take it that he simply means to allow that acceptability requirements do not need to take such views seriously, whether their proponents are morally responsible for them or not.
I can’t see how we could take anything Estlund says as implying any definite view about what sorts of voting restrictions should or shouldn’t be applied to people diagnosable with mental disorders according to the DSM. The idea is just that some people endorse views that cannot reasonably be taken seriously, whether because they’re just bad people or because they have non-culpable psychological problems.
Otherwise put, then, the exclusion Estlund has in mind applies not in virtue of some particular person’s being diagnosable with a mental disorder according to the current DSM, but in virtue of that person’s views being so patently ridiculous that they do not need to be honored.
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Well, I hadn’t meant for it to be more than a footnote. But I think you’re being cavalier about his being cavalier about the use of “crazy.” You could read him as saying that “crazy” is merely as a synonym for “so irrational it can’t be taken seriously,” but you could with equal justification read him saying that insanity is a paradigm form of irrationality. It’s an easy slide to make, and I think this passage of yours makes it:
If “insanity” were simply a synonym for “flagrant irrationality,” there would be no need to put the two in a disjunctive formulation. Your formulation makes “flagrant irrationality” one sort of disqualification, and “insanity” a second, different one. But it’s very misleading to put things that way. Whether you mean it that way or not, a reader is apt to take “insanity” here to refer to a state of mental illness rather than as a synonym for the term just before it. In which case my complaint applies.
I didn’t mean that Estlund had any particular view on mental health and voting. I just meant that the existence of a complex debate on mental health and voting illustrates the hand-waving and misleading quality of Estlund’s use of “crazy.”
I don’t dispute that there are views out there that should be dismissed as too irrational to deserve engagement. That’s not a “concession,” as far as I can see, since I wasn’t disputing it. I was making a point about Estlund’s use of “crazy or vicious.” Estlund’s view is that inclusion is deeply important, and acceptability constraints are deeply important, and yet some views will still need to be excluded (whatever “acceptance” and “exclusion” amount to). There’s a tension there that needs to taken more seriously than he does. On the one hand, exclusion is something to be avoided at all costs; on the other hand, exclusion is inevitable, but regrettable when engaged in. Given that, I’d have expected a better (more precise, more determinate) general account of what’s to be excluded than “the kind of view that’s too irrational to be taken seriously.” Estlund: “[O]bjections stemming from those unreasonable points of view are morally weightless.” The closest he comes to a characterization of “those” is “crazy or vicious,” followed by two views that seem culpable. Well, “crazy” is either a bit of pseudo-clinical language or throwaway slang, and culpability doesn’t work as a criterion. I think it’s fair to press him for more.
My comments about the irrationality of the Black Hebrew Israelites’ views was meant as a dismissive rejection of the content of their views, not as saying that their objections could be ignored in the context of political justification. I went out of my way to say the opposite of that, and the opposite of what I take Estlund to be saying: no matter how irrational their views, if the BHI’s refused to consent to the legitimacy of a political regime, that refusal should be honored. In other words, despite the patent irrationality of their views, I would give their views quite a lot of moral weight–enough to get out of the duty to support the state, or accept its authority or legitimacy.
The irony is that the paragraph we’re discussing from Estlund (top of p. 4) opens with his describing a view he won’t take seriously: the view that says that legitimate authority depends on acceptability by everyone. But the rhetorical question he asks doesn’t answer itself. The objections of crazy and vicious people sometimes do carry moral weight. So do the objections of people whose views are so irrational they’re not worth taking seriously. Why should the objection of someone who is crazy or vicious carry that much moral weight? Maybe because the topic in question is authority over another person, and the legitimacy to enforce that authority, and even the objections of crazy and vicious people defeat attempts to establish that over them.
Throughout that first paragraph on p. 4, Estlund writes as though the objections of crazy or vicious people to state authority would deprive the rest of us non-crazy and non-vicious people of something that they owe us. It’s as though their objections were an obstacle to something, state authority, that the rest of us are entitled to have; since we’re entitled to have it, and they’re standing in the way of our getting it, their objections can’t count for much. He hasn’t told us enough about these crazy or vicious people even to know whether we, as readers, fall inside or outside the relevant category. On p. 48, we’re told that “actual objections are decisive justification defeaters,” but (given p. 4) only if you’re not crazy or vicious. And yet in other contexts, even the actual objections of crazy and culpable people would be defeaters: you’d be both crazy and culpable to refuse to have sex with me, and yet if you did, I’d reluctantly be obliged to honor your actual objection (p. 47).
A view this ad hoc and question-begging has to be clearer about who is being excluded and why than Estlund is. “Crazy or vicious” won’t do it, and neither will “so irrational, it can’t be taken seriously.”
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I’ll reply to your other comment more fully, but just a quick note here on this one. So far as I can see, your objection boils down to the point that we need to be told more about what exactly the disqualifications are, and that it’s not enough to say “crazy or vicious,” or to cite “flagrant irrationality, insanity, or what not.” That’s of course quite right. But it would amount to a serious objection only if Estlund meant his claim on p. 4 to do more than it’s trying to do. I’m only through five chapters of the book, but so far he has not offered any criteria for exclusion at all; he’s still just trying to make points that he intends to apply to qualified acceptability views whatever the disqualifications are. “Crazy or vicious” is just a way of gesturing at the thought that for at least some acceptability requirements, actual acceptance would make legitimacy implausibly hostage to objections that are crazy or vicious: the state can’t enforce its traffic laws against my objection that I don’t need to obey speed limits because I am the lizard king and therefore cannot possibly do damage to anyone (crazy) or because I don’t care about you people and your damn speed limits (vicious). If we get to the end of the book and this is all Estlund has said about what is disqualifying, I will echo your objections; until then, I don’t think your objections here tell against the idea as he’s expressed it.
More stuff relevant to the broader questions in my response to your other comment.
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It’s true that BHL folks have been using public-reason ideas to support libertarianism, but I think it’s fair to say that many of them have also been using public-reason ideas to moderate libertarianism in a more conventionally progressive direction (for better or worse).
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Wild and crazy PSA from Felician University’s Campus Ministry:
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I approve this message.
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Thanks for that post, David. Several brief comments.
(1) In speaking of qualified perspectives (relative to which certain reasons are ruled out for being given to others of such perspectives in rational public discussion about when the state is permitted to coerce), Estlund means to abstract from the idea that the reasonableness of the perspectives is what does the qualifying. But you use ‘reasonable’ not ‘qualified’ in establishing the triviality horn or your dilemma and this seems to be what does the work. So Estlund at least has an easy “out” for being subject to this horn of your dilemma.
(2) I don’t think your argument there works even when the qualified perspectives (and corresponding unacceptability for reasons that we might present others who have those perspectives) are the reasonable ones. For reasonable perspectives might still differ quite a bit and in important ways. And so it might be that lots of reasons (and lots of good reasons – reasons that, if they held sway, would make good outcomes or decisions more likely) are ruled out for giving to each other. (I think you get your triviality result from the idea that reasonable people would accept reasonable justifications. This is true, but, due to different reasonable perspectives, within some range of justifications determined by differences in premises, different justifications would be reasonable for different people.)
(3) Maybe parts of perspectives (individual beliefs, values, etc.) are to be disqualified (for supporting, on grounds of conscience, the exclusion of reasons that contravene them) instead of whole perspectives. That seems like a promising move for not qualifying quite so much for the protections of conscience – and hence not ruling out so many reasons from public debate. In this way, perhaps, 90% of anarchist beliefs of conscience and 90% of Catholic beliefs of conscience do their work in ruling out from public debate reasons that would contravene, but, say, reasons of structural, social injustice survive this process. But now it looks like moral truth is doing more work and in a much more fine-grained way. (On this approach, why not drop talk about perspectives and entirely dis-aggregate, speaking simply of qualified beliefs, values, etc. of conscience, due the respect of not being contradicted in relevant sorts of public discourse?)
(4) Maybe I’m missing something about the structure of the basic “qualified acceptability” proposal (or about what political liberals in general hold), but, as I read the proposal, there isn’t necessarily anything wrong with Catholics giving their good old Catholic reasons (and these being part of the relevant sort of political justification) so long as those reasons do not violate some (other) qualified perspective in society. Maybe the (other) qualified perspectives are not in sufficient conflict with the Catholic reasons for them to be a problem. Or maybe the rest of the folks in that society are Brennanite “vulcans” who don’t really have much in the way of beliefs of conscience (this sounds like a bad thing, but I’m not sure it is…).
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Thanks for the feedback; I’m not able at present to see a clear way around this dilemma, but I’m sincerely open to the possibility that there is such a route, and I wanted this kind of skeptical feedback, so I’m glad you’re giving it. That said, I’m not sure there’s anything here yet to incline me away from the view I’ve taken.
1. I intentionally formulated the dilemma in terms of reasonable acceptability rather than the more general notion of qualified acceptability for a few reasons. First, it’s not clear to me whether the dilemma I pose will apply to every sensible acceptability requirement, even if it really does apply to acceptability requirements formulated in terms of reasonableness. Second, the sort of acceptability requirement most familiar to me and reflected in Estlund’s description of Rawls’ and Cohen’s views explicitly appeals to reasonableness. Third, the idea of reasonableness seems to be what many people who find such requirements plausible find plausible about them. As I say at the end, I’m wondering whether the dilemma I pose can be avoided even within the scope of reasonable acceptability requirements by shifting the focus from this or that substantive law or policy to more procedural or institutional matters. I’m not sure I see how Estlund or anybody else could develop a plausible qualified acceptability requirement that didn’t revolve centrally around reasonableness in one way or another, but I’m not trying to address such requirements right now, if there are any. I see a problem for reasonable acceptability requirements and I’m wondering, first, whether it’s really a problem at all and, second, whether the problem, if it’s real, can be avoided at least to some extent by construing the requirement as applying at a level of politics other than particular laws and policies.
2. I think I accept what you say in your objection here, but I don’t see that it undermines my point. That point is intended to be fairly minimal, viz. that there is an interpretation of “justifiable in terms acceptable to reasonable people” on which any view that is reasonable is justifiable in terms acceptable to reasonable people. You’re pointing, I take it, to the possibility that there is a plurality of reasonable but inconsistent views. I certainly think that possibility is actual for some disputed topics. But that’s not to the point. The point is supposed to be that if all we mean by reasonable acceptability is that a reasonable person can accept this or that view, then reasonable acceptability is trivial. It’s not an empty notion, as illustrated by the example of revealed religion on at least one interpretation: it may be that the claims of revelation, though not at all contrary to reason, are not such that only an unreasonable person could reject them, and if so then we could not appeal to such claims consistently with a reasonable acceptability requirement. Of course, even in less elevated philosophical contexts we might think similarly about our favored philosophical ideas: perhaps utilitarianism, say, is rationally defensible and not at all contrary to reason, but not such that only unreasonable people could reject it. Perhaps I have overstated the triviality of such cases. My reason for thinking them trivial, though, is just that very few people who hold a philosophical view think that inconsistent alternative views are equally reasonable — else why would you hold that view? — and that religious views according to which rational argument is insufficient for belief typically explain this insufficiency in some specifically religious way that purports to make sense of it as such (however successfully). I chose the Thomist natural law example for a very precise reason: standard Thomists are Catholics, and so believe in the revealed truths taught, they believe, authoritatively by the magisterium of the Church, but they do not regard those revealed truths as on an epistemic par with the claims that, say, abortion or nuclear bombing or fornication are intrinsically evil acts; the latter they regard as perfectly accessible to natural reason not relying in any way on revelation or faith, and in that respect Thomistic natural law theory is no different than utilitarianism, Kantianism, contractualism, or what have you. The Thomist thinks that certain truths of the Catholic faith are not in fact accessible to reason independent of faith, and though faith is not contrary to reason and may be supported by reason, it is not rationally compelling either. Hence, modern democratic Thomists, at least, such as Maritain and Finnis, do not think that appeals to revealed truths can be legitimate in politics. But they do not think that natural law prohibitions on abortion, nuclear warfare, etc., are dependent on revealed truth; they are, rather, truths accessible even to those of us who are skeptical of Christianity or who reject it altogether. I don’t mean to defend these claims here; I simply mean that from within that point of view, no less than from within a utilitarian or Kantian or other philosophical point of view, one natural interpretation of the claim that laws ought to be “justifiable in terms acceptable to reasonable people” will not at all exclude these views. But, as I say, I don’t think the trivial interpretation is what defenders of reasonable acceptability requirements have in mind. So unless you intend to deny that there is any interpretation of “justifiable in terms acceptable to reasonable people” on which whatever is reasonable is acceptable to reasonable people, then I don’t think your points here tell against anything I’ve said.
3 & 4. The more detailed we attempt to get about what counts as a reasonable view and why, the more likely we seem to be to enter into territory that is highly disputed among people who are not obviously unreasonable. The non-trivial horn of the dilemma I pose is this: there are people who appear to be reasonable, honest, and decent on any non-tendentious criteria, yet who cannot accept certain sorts of progressive legislation without abandoning or contradicting their deeply held moral, religious, or philosophical views. What you say about Catholic views and Catholic reasons seems to misconstrue the role they play in my dilemma. As I see it, the problem for reasonable acceptability requirements is not that conservative Catholics — say, Thomistic natural law theorists like Maritain or Finnis — can’t give their good old Catholic reasons. Rather, it’s that certain sorts of legislation favored by progressives — say, laws requiring that small business owners deeply opposed to homosexuality and abortion bake cakes for same-sex weddings or contribute financially to health insurance that pays for abortions — cannot be justified in terms that conservative Catholics can accept without abandoning or contradicting their deeply held views. The libertarian could serve just as well in this example: she has a deeply held moral and philosophical view that income taxation is theft, yet progressives like me propose to have the state tax her and people richer than her, with the threat of coercive sanctions for those who fail to fork over considerable percentages of their income. The question is not about whether conservative Catholics or libertarians can appeal to their views to coerce the rest of us; it’s whether the rest of us can appeal to views inconsistent with conservative Catholicism or libertarianism to coerce them.
I do not see any honest way to endorse standard progressive legislative proposals without acknowledging that they would legally require people, under threat of coercion or punishment, to act contrary to deeply held views that are not “crazy or vicious.” Of course that might be true and yet not a strike against the reasonable acceptability requirement; we might just take it as a reason to be libertarians. But Rawls and Cohen, at least, are not libertarians. The problem arises for progressives who want to endorse a reasonable acceptability requirement: if that requirement isn’t trivial, then it’s either inconsistent with progressive legislation or the Twitterverse progressive’s dream is true and the only non-insane, non-vicious people in the world are all progressives.
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I think we ultimately agree regarding the triviality horn of your dilemma. We might answer ‘is reason R a reason that a reasonable fundamentalist Christian could accept, consistent with her conscience?’ with ‘why, yes, because R is a reasonable reason and reasonable reasons are acceptable by all reasonable people’. I agree that this answer need not be empty, but it is not explanatory enough for me to see it as a serious answer to the question.
My suggestion regarding the other horn of the dilemma is this: if only some elements of perspectives, not whole perspectives, get ruled out as unreasonable, there are more reasons (and a greater range of conclusions) available for political justification. For example, perhaps ‘it is okay to exclude immoral people from society’ is not a reasonable (or otherwise qualified) part of a fundamentalist Christian perspective, but ‘I should be permitted to take steps not to be party to immoral things’ is. This holds out the promise of there being conditions under which we might justify forcing the cake-baking (but maybe not conditions that hold in society now).
I agree that progressivism, as it has developed in this country in the wild, should, from a pragmatic perspective, be suspicious of the public reason approach (even in the form that I am suggesting here, for the sake of argument): this kind of framework would make achieving progressive aims, aims that we might stipulate are essential to having an objectively just society, harder. But maybe my suggestion can stop the slippery slope to political justification just not working for very much beyond enforcing very basic standards of criminal justice, etc.
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Here’s my second comment. You say this:
Doesn’t it depend what actual acceptance is acceptance of? What if the object of actual acceptance is a regime or constitution rather than “a law”? Then Estlund’s plausible-looking conclusion won’t follow.
If the object of acceptance is a regime/constitution, then either you accept the legitimacy/authority of the regime, or you don’t.
If you accept, then having accepted, you can’t object to any given law unless the law is itself “crazy or flagrantly vicious” (meaning: unjust), on some worked-out and non-metaphorical account. But on the whole, you’re obliged to follow the law. You yourself have authorized it.
If you don’t accept, you are not governed by the law, no matter how well-founded or “crazy or flagrantly vicious” your failure to accept. This doesn’t mean that you have carte blanche to go around violating anyone’s rights; foreign nationals don’t accept the authority of a nation foreign to them, but can’t violate rights with impunity. They’re regarded not as criminals but as enemies when they are, but it’s not as though nothing is done about the problem they’re creating.
But on this interpretation, your taking the “don’t accept” option does mean that your non-acceptance is somehow honored. If you crazily and viciously objected to the authority/legitimacy of a (just) regime, and then went off to live in a hut by Walden Pond, living your life more or less as Thoreau did, what would Estlund have to say to the claim that our Thoreau-figure has a right to do just that? It’s not that Estlund offers some argument but not as much as we’d like against this possibility. He doesn’t even consider the possibility, much less consider arguments against it. He writes as though the possibility of Thoreau-like figures would constitute an insuperable impediment to the possibility of establishing the rule of law. But contrary to what he may think, it’s not clear why that should be so. Even if it were, it’s not clear that’s a reductio.
Estlund may not accept either outcome of my accept/not accept scenario, and may regard the second outcome as particularly implausible or unworkable, but neither his account nor your rendering of it captures my interpretation of what actual acceptance might be. More to the point, neither account characterizes the object of acceptance in political contexts, or considers the possibility that clarity about the object of acceptance makes a difference to our evaluation of any given proposal about it.
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The short answer that I would give, and that I think Estlund at least can give, is that it does indeed depend on what acceptance is supposed to be an acceptance of. On 46-47, Estlund goes out of his way to avoid rejecting actual acceptance requirements as such, and he gives an example (sexual contact) where he explicitly takes actual acceptance to be required. I don’t think that he has much sympathy for the consent-based view you lay out, but I do think it can fit into his abstract categorical scheme.
That said, perhaps the availability of a view like the one you sketch out should have led him to be considerably more explicit about what he’s up to, particularly in the early summary chapter. But I take it that he’s thinking primarily about what sorts of laws a government can legitimately enforce, or what the criteria are supposed to be for the moral permissibility of enforcing a law via the use of force or punishment. He’s focused on the idea that an acceptability requirement could constrain the content of legitimate law, that it can tell us that government may enforce this but not that. I think – though this is less clear to me – that he’s also envisioning the idea of an acceptance requirement as one on which some people’s rejection of a law would defeat the legitimacy of that law for everyone; if your rejection counts against it, it means that we can’t have this law, not simply that you yourself aren’t subject to it. At this level, it is indeed hard to find an actual acceptance view plausible; it would entail that we can’t have traffic laws (or can’t enforce them, anyway) because some people reject them for absurd reasons that make little or no sense. Whether or not Estlund (and I) should devote more attention to the kind of acceptability requirement you set out, the kind that he (or at least I) am focusing on is worth focusing on if only because it’s a sort widely favored: it’s the sort that Rawls and Cohen have in mind, for instance, and the sort associated with political liberalism / public reason accounts more generally.
The idea here is that Thoreau can consent to be a citizen and be recognized as one, yet still be able to render certain laws and decisions illegitimate by virtue of his not accepting them — his rejection of them would make it illegitimate for us to have these laws or make these decisions. This seems to be a far more ambitious idea than your consent theory, so far as it goes, since that theory just says that if Thoreau consents to this government, then he is obligated to follow its laws provided that they’re not unjust; his rejection of this or that law does not count against it at all, only its substantive injustice counts against it. On the sorts of view Estlund wants to consider, Thoreau’s rejection of a law can in principle make even an otherwise just law illegitimate; he doesn’t have to withdraw his consent from the government and get out of the territory, he just has to reject the law. This might leave us with room to keep the law and simply not enforce it against people like Thoreau — perhaps this is the way to understand conscientious objection exceptions to military conscription — but the idea includes the more powerful possibility that an otherwise just requirement cannot be legitimately legislated at all because some people reject it.
Is that different enough from your consent-based theory to warrant treating yours as just a different kind of thing? I’m not sure. It seems to me that what Estlund should say about your view is that it’s a version of an actual consent requirement for the legitimacy of a government relative to an individual. It doesn’t perfectly match the structure of the account he gives of sexual contact, I take it, because his treatment of the necessity for consent for sexual contact does not include anything like an analogue of the idea that I can somehow tacitly or implicitly consent to sexual contact even when I sincerely take myself to be dissenting from it. But the question isn’t whether Estlund does or would agree with your view here — we can be pretty sure he doesn’t, given what he says about consent theory — but whether he does or can capture that view in his general categorization of acceptability requirements. It seems to me that he can, but perhaps he’d have to modify his account in some non-trivial ways to do so.
In any case, what I’m trying to focus on in the post is not even all acceptability requirements taken to apply to laws and government decisions. I’m trying to focus on the idea of reasonable acceptability requirements. The problem I pose for reasonable acceptability requirements would not apply to the sort of consent-based theory you describe. That theory says nothing about reasonableness; that is one of the things about it that makes me unsympathetic to it, but it also plainly sets it beyond the reach of the sort of worries I raise in the post.
My narrower point in agreement with Estlund’s claim that actual acceptance is not a plausible requirement is not really central to my points either; if actual acceptance of the content of the laws were a plausible requirement, then that would strengthen my case against the reasonable acceptability requirement. But I’m happy to grant that the sorts of reasons that I take myself to share with Estlund for denying the plausibility of actual acceptance requirements are also not particularly relevant to the sort of view you set out. The objection is to the idea that we just can’t have a particular law because someone objects to it, no matter what their objections are. Your view doesn’t have that implication, so the objection just isn’t an objection to it. So what I should say, to be more precise, is that whatever exactly Estlund is claiming about actual acceptance requirements on p. 4 and pp. 46-47, I agree with him insofar as he thinks that it is not plausible to require actual acceptance of laws and decisions, where actual acceptance is a matter of not objecting to the legitimacy of a law, not a matter of consent of some purported implicit or tacit variety.
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It occurs to me belatedly that one way that might be open for Estlund simply to deny that your consent-based view is an acceptability requirement at all is that the conception of consent you’re working with is not a version of acceptance as he intends it. I’m not sure I fully understand the sort of view you have in mind, but I gather that it operates with a notion of consent that includes tacit or implicit consent. Estlund is not even prepared, for the purposes of his own normative theory, to agree that tacit or implicit consent is really a kind of consent. But he could recognize that your theory operates with such a conception of consent, and simply say that for that reason what you call consent is not equivalent to acceptance. I don’t mean to suggest that this would be an especially successful strategy, just that it might be one he would want to take; after all, when he discusses acceptability requirements, he does not appear to make any room for anything like the idea that my not renouncing my citizenship and going to live near Walden Pond counts as acceptance. It may be that Estlundian acceptance is just a narrower notion than Khawajan consent. (If so, this might offer a better explanation for why he does not consider views like yours).
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