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Abstract
This paper presents a way of thinking about how to respond to the pluralism of modern societies that avoids any commitment to contractualist norms of political justification. The argument developed appeals to the notion of a constitutional settlement. Constitutional settlements are complex on-going social practices that both express certain values to which political societies are committed and establish procedures for resolving disputes among members of these societies. As such, they are a product of both moral commitment and the balance of power. The paper shows how constitutional settlements relate to issues of stability and non-subjugation in politics, and explains how they can ground a distinction between justice and legitimacy.
Acknowledgements
A version of this paper was presented at the ‘Peace or Justice’ conference at the University of Hamburg in the summer of 2011. I thank the participants at this conference, and especially Fabian Wendt, for criticism and discussion. Thanks also to two referees of this journal for their very helpful comments on the penultimate draft.
Notes
1. . Rawls once claimed that in a well-ordered society all citizens would accept the very same principles of justice (Rawls Citation1971, p. 5). Reasonable disagreement on conceptions of the good and comprehensive doctrines was to be expected even under the best of conditions, but not disagreement on justice. But, as critics pointed out and as Rawls came to acknowledge, the same factors that explain why it is unrealistic to expect reasonable people to converge on a conception of the good or on a comprehensive doctrine, if sound, also explain why it is unrealistic to expect them to converge on the same conception of justice. Thus Rawls too came round to the view that it is our fate to live with others, including reasonable others, who do not share our conception of justice.
2. . For the influential discussion of facts and principles, see Cohen (Citation2008, pp. 229–273).
3. . The metaphysical doctrine may play a role in explaining the kind of pluralism with which I am interested in. But its truth is not in question in this paper.
4. . To invoke Thomas Nagel’s (Citation1986) colorful phrase taken from the title of his book.
5. . Put otherwise, judgments from the all-things-considered point of view must include a judgment about the weight that should be assigned to judgments from the public point of view. This judgment itself is a first-person judgment, not a judgment from the public point of view.
6. . One can get such a view from reading the work of Jürgen Habermas. See, for example, his criticism of ‘monological’ deliberation in Habermas (Citation1998).
7. . For a good recent discussion, see Shafer-Landau (Citation2003, pp. 42–43).
8. . Constitutional settlements respond to pluralism. But the conditions of pluralism are themselves varied. In some contexts, an effective constitutional settlement may require a substantial devolution of political authority to smaller units. This response to pluralism is perceptively explored in Kukathas (Citation2003).
9. . Two clarifying comments are in order. (1) Honoring a constitutional settlement means being disposed not to disrupt or destabilize it. It does not imply that one must think that every decision reached in accord with it generates an obligation to obey. (2) Many who are subject to a constitutional settlement may honor it for reasons of self-interest or habit, not for reasons of political morality. The claim here is only that a substantial number of those subject to it must judge it to be acceptable from the standpoint of political morality. To be precise, as I understand it, reasons (i.e. motivating reasons) of self-interest or habit do not contribute directly to the normative authority of the constitutional settlement, but they can enhance its stability. Moreover, by enhancing its stability these reasons can contribute indirectly to its normative authority by helping to make the settlement sufficiently stable to perform its functions, which is a condition for it to have normative authority in the first place.
10. . I will not here attempt to provide conditions for a judgment to be genuine. But some such qualification is necessary. A judgment would not be genuine, and so could not underwrite normative authority, if it were the direct product of manipulation or brainwashing, for example.
11. . Can an agreement of this sort create normative authority out of nothing? Yes and no. Without the agreement, there is no constitutional settlement and so no arrangement of this kind with normative authority. But if an arrangement were to fail to serve political morality tolerably well in the circumstances in which it functioned, then the mere fact that it was widely believed to do so would not make it true that it had normative authority.
12. . They might think, for example, that with the settlement there would be less injustice than without it.
13. . The characterization of subjugation is a slippery matter. Let us say that (1) if a person rejects that he has an adequate reason (i.e. one that is neither defeated or overridden) to support a constitutional settlement and (2) he is nonetheless compelled to comply with political decisions reached in accord with the settlement (political decisions that he does not find independent reason to support), then he is subjugated by those who uphold the settlement.
14. . To use Rawlsian language, one might say that for a genuine constitutional settlement to exist it must not only be stable, but also be stable for the right reasons.
15. . One attraction of the contractualist response to pluralism is that it promises to avoid authoritarianism in politics. Below I argue that this promise is a false one.
16. . John Horton has also defended a modus vivendi approach to politics. His views are closer to mine than Gray’s (for example, Horton Citation2007, Citation2010). But Horton, like Gray, holds that a modus vivendi approach to politics ‘does not imply that political arrangements must meet any preconceived, philosophically favoured standards of fairness and justice’ (Horton Citation2010, p. 438). By contrast, on my view, a constitutional settlement has normative authority for a person only if that person judges that the settlement serves sound values tolerably well. In reaching that judgment, the person, if he is philosophically oriented, will need to appeal to philosophically favored standards of fairness and justice. In general, and given the primacy of the first-person perspective in politics, each party to the settlement must conclude that, given his own favored view of political morality, the settlement merits his support. Accepting the normative authority of constitutional settlements is thus fully consistent with the belief that only liberal or democratic settlements merit that support.
17. . This achievement is indexed to times as well; but, for ease of exposition, I shall omit the ‘at a given time’ qualification.
18. . On a plausible construal of nonauthoritarianism. As I explain, one can cook up ad hoc versions of the idea that are achievable.
19. . This is the view taken by Gaus. See his discussion of the ‘reflexivity requirement’ on public justification in Gaus (Citation2011, pp. 226–228).
20. . This conclusion is defended more fully in Wall (Citation2013).
21. . One might claim that there are constitutional arrangements that all plausible articulations of the reasonable non-rejectability standard support. Then one could add that only these arrangements are reasonably non-rejectable. This, however, just looks to be one more rival articulation of the standard.
22. . As I intimated above, a central motivation for Gaus’s contractualist public reason liberalism is the need to avoid authoritarianism (Gaus Citation2011, pp. 6–16).
23. . The idea I have here – roughly the idea of significant convergence on a constitutional settlement and significant (non-instrumental) motivation to comply with its terms – resembles the notion of a constitutional consensus suggested by Kurt Baier (Baier Citation1989). The term ‘consensus’ may mislead, however. In order for a constitutional settlement of the sort I have in mind to exist and function effectively, it is not necessary for all members, or even all reasonable members, to sign on to it.
24. . The example draws on Derek Parfit’s discussion of self-denying and self-effacing theories (Parfit Citation1984, pp. 3–29).
25. . The worry here is an instance of a more general worry sometimes pressed against indirect versions of consequentialism (Williams Citation1986, pp. 107–108).
26. . This is a point Rawls rightly calls attention to in his discussion of how an overlapping consensus could emerge from a ‘mere modus vivendi’ (Rawls Citation1993, pp. 158–172).