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.