According to political liberals, state action is legitimate only if it can be justified on the basis of reasons that all reasonable citizens can accept—that is, public reasons. Call this the public justification principle. Laws and policies that can be justified on the basis of public reasons are then publicly justified or publicly justifiable.1
Some theorists reject the public justification principle, holding that it is too demanding to require as a matter of legitimacy that citizens and officials only exercise state power on the basis of public reasons. At the same time, many also hold that political liberals have identified something important with public justification.2 To this end, these theorists hold that there are pro tanto reasons for state conduct to be publicly justified, but not as requirements of legitimacy. On this model, it is a good-making feature of a particular law or policy that it is publicly justified, which may then be added to whatever other good-making features the law or policy might have. The fact that a law can be justified on the basis of public reasons is thus a defeasible reason in favor of adopting the law. Call this position the pro tanto public justification principle, or, more simply, the pro tanto principle.
In this paper I present a different alternative for thinking about public justification. On this model, requiring that laws and policies are publicly justified is part of good institutional design, but not a requirement on institutional design. That is, there are many different ways that a state’s institutions might be legitimately arranged. A state, for instance, could legitimately have a presidential or parliamentary system of governance, have a system of civil or common law, or function with or without a constitution. It is likely the case, though, that some of these institutions are better to have than others, at least in some contexts. A requirement that laws are justified on the basis of public reasons is similar—it is part of good institutional design to have institutions requiring that laws and policies are publicly justified, even if it is not required for the state’s legitimacy to have such institutions. Call this the institutional public justification principle or, more simply, the institutional principle.3
The pro tanto principle and the institutional principle represent two different ways that philosophers might try to capture the ideas behind the public justification principle while abandoning the idea that public justification is a requirement of legitimacy. The pro tanto principle attends to the value in having publicly justified laws and policies; the institutional principle attends to the value in having institutions requiring public justification. While some have begun to explore the pro tanto principle, there has been little discussion of what status should be given to the institutions behind public justification. Here I suggest that by focusing on the institutions involved in requiring public justification, we can have a better understanding of the ways in which public justification is valuable and the roles it can play in political life.
I develop this position over the next four sections. Section 1 outlines the public justification principle and raises objections from those who support the pro tanto principle. Section 2 then introduces the institutional principle and explains that for the institutional principle to be differentiated from the pro tanto principle, there needs to be some distinctive reasons to adopt institutions requiring public justification. I then propose two such reasons in Section 3: That institutions requiring public justification are partially constitutive to establishing relations of civic friendship and to ensuring an equal distribution of the burdens of subordination. Section 4 then argues that the institutional principle is able to avoid the problems raised for the public justification principle.
I conclude in Section 5 by exploring how the shift from the public justification principle to the institutional principle affects various disputes concerning public justification. Political liberals disagree about what institutions the public justification principle requires as a matter of legitimacy. These disagreements often seem intractable—some political liberals worry that more expansive institutional requirements are too demanding, while others worry that the concerns about legitimacy cannot be satisfied with less demanding institutions. Shifting to the institutional principle dissolves these problems by turning them into questions of how to best design institutions, allowing for trade-offs between the value of institutions requiring public justification and their costs. This correspondingly shifts how political liberals, and others, should theorize about public justification: Instead of attending to its application abstractly, political liberals should focus on the value of creating institutions requiring public justification within particular contexts. This suggests a more practical approach to public justification.
1. Two Initial Roles for Public Justification
1.1. Public Reason, Legitimacy, and the Public Justification Principle
Public reasons are those reasons that all reasonable citizens accept. “Reasonable citizens” are citizens who accept two sets of commitments: (i) a set of normative commitments concerning the values of freedom, equality, and fairness and an understanding of political society as a fair system of cooperation between free and equal citizens and (ii) an understanding of a political society structured by those values as permanently subject to some domain of disagreement between citizens (Rawls 2005: 223–27; Quong 2014).4 Reasonable citizens, then, are not empirical citizens, but rather citizens that are idealized as accepting certain normative claims. Public reasons are those reasons that follow from the commitment to (i) and (ii). This is because accepting (i) and (ii) is partially constitutive of being reasonable, and so all reasonable citizens accept reasons based on (i) and (ii), which is not true for other reasons that citizens might appeal to (Quong 2011: ch. 7).
Specifying the content of public reasons is not necessary for my purposes here. I will provisionally hold that public reasons include reasons based on the values of freedom, equality, and fairness, the recognition of and respect for various rights of conscience concerning matters such as religion, and a commitment to participatory forms of political organization. While all reasonable citizens accept these values, political liberals typically hold that reasonable citizens can disagree with each other about the weights assigned to them and what the best interpretation of the commitments are. There is still room for public disagreement and debate; it is just done in terms of a shared set of commitments. For my purposes it suffices to hold that public reasons are those reasons that can justify state conduct to any reasonable citizen. Laws and policies, then, are publicly justified only when they are justified in terms of public reasons.
The public justification principle holds that, as a matter of legitimacy, state exercises of authority must be publicly justified. Legitimacy is concerned, in the broadest sense, with the permissible exercise of the state’s authority. Typically, the fact that a state has acted legitimately has some further normative implications with respect to the authority of the state. That is, legitimate exercises of authority typically place obligations on citizens to comply with the state’s directives and make it impermissible for citizens to interfere with the state’s enforcement of those directives. To hold that a state’s conduct is illegitimate is to hold that, in some way, the state’s exercise of its authority is impermissible such that at least some of these typical further normative implications fail to hold. The public justification principle thus requires that there be some reasonable interpretation (or some set of reasonable interpretations) of public reasons such that the balance of public reasons justifies the state adopting some law or policy, independent of any non-public reasons, for the law or policy to be legitimate (Rawls 2005:217).
The public justification principle also places constraints on the institutional design of the state to structure the political interactions of officials and citizens. This is the duty of civility—a duty on the part of officials and citizens to engage in public debates with one another on the basis of terms that they reasonable could expect other reasonable citizens to accept (Rawls 2005: 217; Quong 2011: 41–44). This duty requires that public reasons be used in the public debate for and against the law and that no other reasons be used in the public debate for and against the law (or: anyone presenting non-public reasons in the public debate also present, in time, public reasons for the law).5 This avoids the idea that it is mere coincidence that the law adopted is connected to public reasons, since the duty of civility requires engagement in terms of public reasons. I will thus understand the public justification principle as requiring not just that the laws are justifiable on the basis of public reasons, but also that they are arrived at by a process structured by the duty of civility.
As a final note, it is important to understand the distinction between public reasons and the public justification principle. Public reasons are reasons—weighty considerations that should be taken into account in political decision-making. Perhaps some of these reasons are such that they even identify constraints on legitimate state action—state action that undermines freedom of religion, for instance, may be illegitimate. The public justification principle makes an additional claim: That there is some reason to not use non-public reasons in virtue of the fact that non-public reasons fail to publicly justify laws. In this sense, the public justification principle is a principle about reasons to use reasons—it provides second-order, exclusionary reasons concerning what reasons may be legitimately used in political deliberations (Lister 2013: 107–10). By contrast, public reasons themselves are first-order reasons used to decide what courses of action the state should take.6
This distinction between public reasons and the public justification principle is important: Defenses of the public justification principle must explain why public justification is necessary for legitimate state conduct not on the basis of the first-order content of public reasons, but on the basis of the publicness of the justification. The appropriate role of public reasons in political life as public reasons depends on what role their publicness plays. The central question is: Why does it matter that a law or policy is publicly justified? The public justification principle provides one answer: Legitimacy requires that laws and policies are publicly justified.
1.2. The Pro Tanto Principle and the Challenge for the Public Justification Principle
The answer given by the public justification principle is not the only possible answer for why public justification matters. Another answer is that the fact that a law or policy is publicly justified is just a good-making feature of the law or policy, like the fact that the law will promote economic growth, secure greater autonomy for citizens, or make people happy. On this understanding, the good-making feature of public justification is a defeasible reason to adopt a law or policy—there can be reasons to implement a law even if it lacks a public justification, just like there can be reasons to implement a law even if it lowers economic growth (assuming there are other goods that are promoted instead). A law or policy being publicly justified is, as David Enoch puts it, “another political desideratum, yet another item on a list of significant factors counting in favor of a political arrangement,” without any “lexical priority” over other factors (2015: 138).7
Let’s call this model the pro tanto public justification principle or, more simply, the pro tanto principle. Even some supporters of political liberalism have adopted this kind of model. R. J. Leland, for instance, criticizes “respect-based” views of public reason as setting the “stakes of noncompliance very high” because “[o]n the respect-based justification, the [public justification principle] nearly always defeats considerations that speak against compliance” (2019: 89). He sees it as an advantage of his “civic friendship” view of public reason that it lowers the stakes, allowing citizens to “weigh conflicting and weighty reasons against each other—reasons of political community [i.e., reasons to use public reasons] against competing private reasons of various sorts” (2019: 91).8 As with Enoch, Leland’s suggestion is that the fact that a policy is publicly justified is a pro tanto reason to adopt the policy, but these reasons can be outweighed by competing non-public reasons. The main difference between Leland and Enoch is their prediction for how frequently the pro tanto weight of public justification will be outweighed by competing reasons—Enoch seems to think it frequent, Leland seems to think it rare.
While the pro tanto principle does not entail any particular institutional design, most advocates of the pro tanto principle reject institutional requirements for public justification.9 Enoch, for example, conceives of politics as “fighting in the political arena for everything they think is good and just” and that it is simply “a good thing to engage people (roughly speaking) on terms that they can accept” (2015: 134, 138). There is no suggestion, that is, that political institutions should require public justification, rather the calculation to engage in public justification is left to individual political agents. Similarly, Leland holds that each citizen is “asked to weigh conflicting reasons against one another […] and make the choice which they believe the balance of reasons favors” (2019: 91). There is no general, institutional requirement for public justification imposed on citizens because the question of public justification is treated as an individual concern. Supporters of the pro tanto principle, then, tend to adopt a position where the question of whether to engage in public justification is a question left open to individual citizens, rather than determined by institutional structures.
Many are moved to adopt the pro tanto principle as an alternative to the public justification principle because of worries about the “lexical priority” given to public justification. If laws or policies are legitimate only if they are publicly justified, then the private, non-public reasons that citizens use in their daily lives are largely excluded from politics. For such non-public reasons do not contribute to showing whether the balance of public reasons justifies a law or policy. They correspondingly cannot show that a law or policy ought to be adopted—even if a citizen has overwhelming non-public reasons in favor of a law, the public justification principle excludes those as counting as reasons for why the law should be adopted because citizens must provide public reasons supporting the law. The laws, then, are insensitive to the non-public reasons available to citizens.
This insensitivity to non-public reasons seems implausible to many. There are at least two reasons for this. First, it seems plausible that some balance of non-public reasons can outweigh the reasons in favor of requiring public justifications (see, e.g., Wendt 2019: 55). That is, the typical reasons in favor of the public justification principle—for example, stability for the right reasons, respect, and civic friendship—are weighty, but it is unclear that they are so weighty that they have a kind of lexical priority in determining permissible state conduct. Certain claims subject to reasonable disagreement—such as when human life begins, the moral status of animals, and the moral status of future generations—are central for evaluating whether, say, a policy will lead to the deaths (or even murders) of millions of morally significant creatures. It is unclear why in those cases the values supporting the public justification principle should be given lexical priority. It seems like the weight of the first-order non-public reasons for a law should still matter in these cases.
A second reason follows: By requiring that citizens not rely on their private, non-public reasons, the public justification principle imposes significant demands on the integrity of citizens (see, e.g., Leland 2019: 89–92; Murphy 1998: esp. 268; Nicholas Wolterstorff 1997: esp. 105; Kevin Vallier 2012). The demands on integrity come from the disconnect between the private, non-public values that a citizens hold and their ability to use those values in political deliberation. The public justification principle seems to require that some reasonable citizens abandon their private values that they use to lead their own lives when they are deliberating about what laws and policies to support. This requires citizens to choose between acting in accordance with their deeply held commitments and their ability to participate in political life. This can make political life alienating for these citizens. This might be thought of as a second-order reason in favor of allowing citizens to use non-public reasons against the second-order reasons in favor of the public justification principle.
These arguments challenge the plausibility of requiring that laws and policies be publicly justified as a matter of legitimacy. Whether these arguments are ultimately successful against the public justification principle is a matter that requires a more detailed discussion than can be provided here. My point in raising these issues is to just highlight that there is some intuitive pressure against the public justification principle’s requirement that laws and policies are publicly justified as a matter of legitimacy.
This intuitive pressure supports the pursuit of alternative models for thinking about the role that public reasons play. The pro tanto principle emerges as one natural alternative: If the problem with the public justification principle is that it does not allow any weight to be given to private, non-public reasons, then one solution is just to hold that the fact that a law or policy is publicly justified is simply a pro tanto consideration in favor of the law. But is this the only alternative?
2. The Institutional Principle
Another alternative for understanding the role of public justification is that there are pro tanto reasons for states to adopt institutions that require that laws and policies are publicly justified. That is, it is a good-making feature of a set of institutions that they require public justification. Let’s call this the institutional public justification principle or, more simply, the institutional principle. In this section I explore this alternative position.
States are formed through various institutions—rules and structures governing the creation, enforcement, and application of laws and policies. Many of these institutions are encoded in the legal-constitutional structure of a political society. These are what I will call “formal institutions.” Formal institutions are matters like whether the state is a democracy or monarchy, whether it has a parliamentary or presidential system, whether it has a written constitution, and whether there is a Department of Energy and the rules governing the Department of Energy. These institutions are typically adopted through changing part of the legal-constitutional structure of the political society—by creating new laws, amending constitutions, issuing new judicial precedents, and altering the structure of administrative bureaucracies.
Other institutions are encoded in norms that govern how those within society act with the power they are given. These I will call “informal institutions.” Informal institutions concern norms regarding how officials and citizens interact in political deliberations, such as whether there is a norm of “political correctness” in public discourse, norms governing the process of legislation, and norms for how politicians and leaders are held to account, such as whether the President periodically takes questions directly from the press. I call these informal because they are not defined within the legal or political structure, but rather are part of the social-normative landscape within which political agents act. Unlike formal institutions, which are generally adopted through the deliberate exercise of political power, informal institutions arise through shifts in the political culture of a society. This does not mean that the informal institutions of a political society are simply the haphazard result of circumstance—social and political norms can be brought about by the deliberate efforts of actors provided that they can generate sufficient uptake within a population.10
While most political liberals hold that the requirement that laws are publicly justified concerns the informal institutions of the state—such as by political agents adopting norms like the duty of civility as a regulative ideal in their political engagements—it is likely that there can be formal institutions as well.11 An example of a formal institution might be constitutional requirements that government laws and policies have non-religious grounds for support (see Koppelman 2002). This is a formal institution that supports the requirement that laws and policies are publicly justified by excluding some non-public reasons. For ease of discussion, I will assume that the institutions requiring public justification under discussion here are primarily informal institutions, but it is important to realize that formal institutional structures can also support public justification.12
The institutional principle holds that the requirement that laws are publicly justified is a potential institutional structure that the state could adopt, and that there are pro tanto reasons to adopt such institutions, but not as a matter of legitimacy. That is, the institutional principle holds that the reasons to adopt institutions requiring public justification are like reasons to adopt a parliamentary system of governance. It is unlikely that a parliamentary system of governance is required as a matter of legitimacy—presidential systems of governance are also legitimate—but there might be reasons favoring a particular state adopting a parliamentary system of governance over a presidential one. Similarly, there are reasons to adopt institutions requiring that laws are publicly justified, not as a matter of legitimacy, but as a matter of what makes a good set of institutions.13
The institutional principle might be thought of as a midpoint between the pro tanto principle and the public justification principle. Like the pro tanto principle, the institutional principle holds that publicly justification is not a matter of legitimacy, but rather a pro tanto concern. What differs between the pro tanto principle and the institutional principle is what the pro tanto reasons support: For the pro tanto principle, individual laws and policies that are publicly justified are supported, while for the institutional principle, formal and informal institutions that require the use of public reasons are supported. This generates a further difference: That if the institutions are in place, then citizens can be required to publicly justify laws and policies, while there is no corresponding requirement for the pro tanto principle.
The sense of “required” here is the same as the sense in which citizens and officials are required to comply with the duty of civility for the public justification principle—citizens and officials have a duty to comply with the norm and the failure to comply with this duty can lead to sanctions by others. This allows the institutional principle to provide a similar kind of deontic character for the demand for public justification as the public justification principle. The institutional principle holds that there are reasons to adopt the kinds of institutions requiring public justification that the public justification principle supports, and so similar requirements on public discourse are supported. It is just that for the institutional principle these are pro tanto reasons, and not matters of state legitimacy.14
It should also be noted that the institutional principle is compatible with the pro tanto principle. That is, the fact that there are pro tanto reasons for states to have institutions requiring laws and policies to be publicly justified is compatible with there being pro tanto reasons to publicly justify laws and policies, and vice versa. In this sense, the institutional principle and the pro tanto principle can be complementary, with each simply holding that there are pro tanto reasons that support different political entities—institutions versus laws and policies—having good-making features with respect to public justification.
This compatibility raises a question: What differentiates the pro tanto principle from the institutional principle? There needs to be some reason to think that there are pro tanto reasons in favor of adopting institutional requirements that laws and policies be publicly justified, rather than just pro tanto reasons for laws and policies to be publicly justified. It may be worried that the best explanation for why states should have institutions requiring public justification depends on the pro tanto value of publicly justified laws and policies. If so, then the institutional principle would seem to simply be a consequence of the pro tanto principle, and so fail to identify a distinctive alternative role for public justification to play.
I think this consequence can be avoided by identifying how institutions requiring public justification are intrinsically valuable by instantiating—or functioning as a constitutive part of a system that instantiates—some values. Here is a way to think about this: It is sometimes argued that democratic institutions are intrinsically valuable because they instantiate relations of equality between citizens (for examples, see Christiano 2003; Kolodny 2014). This claim is not meant to suggest that democratic institutions promote relations of equality between citizens—that they produce more equal distributions of resources for instance. Rather, the democratic institutions themselves make the citizens equal with one another, for example, as partially constitutive of social equality between persons. Of course, simply because institutions instantiate a value does not mean that the institutions must be adopted—this will depend on how weighty the value is and whether there are alternative ways of instantiating the value. But the fact that the value is instantiated by adopting certain institutional structures provides a pro tanto reason for adopting the institution.
The argument for the institutional principle as a separate principle from the pro tanto principle, then, may be modeled on this kind of argument for democratic institutions—institutions that require public justification instantiate or partially constitute a system that instantiates some values, independent from what values those institutions may also promote. This ensures that there is a case for having these institutions that does not depend on the considerations identified by the pro tanto principle, and so ensures that the institutional principle does not collapse into it. The question that must be addressed, then, is not whether the pro tanto principle is compatible with a political society adopting institutions requiring public justification—after all, the pro tanto principle and the institutional principle are compatible. Rather, the question is whether there is some value found in such institutions that is not explained simply through the fact that it is pro tanto valuable to have laws and policies that are publicly justified. My goal in the next section will be to identify some values that political liberals commonly invoke that are partially constituted by having institutions requiring public justification.
3. The Value of Institutions Requiring Public Justification
3.1. Civic Friendship
One value that political liberals invoke in favor of public justification is civic friendship (Ebels-Duggan 2010; Lister 2013; van Schoelandt 2015; Leland & van Wietmarschen 2017; Leland 2019; and Tahzib 2019). Civic friendship is an ideal of the relationship between citizens as one of working together in governing a society as equals (Ebels-Duggan 2010: 55–56; Leland 2019: 75). When citizens are civic friends, they take politics to not simply be a matter of achieving their own ends. Rather, politics is seen as a mutual endeavor, undertaken by the citizens together for the promotion of common interests. Civic friendship reflects the idea that politics is not a matter of enmity between competing parties jostling for positions and power, but rather a cooperative endeavor towards a shared goal. It represents a valuable relationship that people can bear towards one another that does not reduce solely to the benefits that the relationship provides to the participants.
One element central to civic friendship is that the norms of political interaction between citizens must be such that citizens treat each other as equals in a mutual endeavor. In typical friendships there is space between people’s personal lives and their projects together as friends. That is, when I interact with my friends, I do so on the common basis of our friendship—I should not simply use the friendship to achieve my personal aims. But this is consistent with holding that I am not always interacting with my friends and so in my own time I can pursue ends that my friends would not adopt. Friendship is not omnipresent in our lives. The same is not true for civic friendship when it comes to political life. The formation of laws and policies, the political debate and discussion, and so forth implicate all citizens together in their mutual project. It is what they are doing together as civic friends. Correspondingly, there is a general need for the political system as a whole to adopt norms that are consistent with the ideal of the political society as a mutual endeavor between citizens (Leland & van Wietmarschen 2017: 160).
Political liberals argue that for political society to be a mutual endeavor it is necessary that political decisions are based on terms that all citizens can reasonably accept (Leland & van Wietmarschen 2017: 161–64; Leland 2019: 10–12). That is, if citizens reasonably disagree about the underlying values that the society may be organized around, then to select one set of controversial values to organize society is for some citizens to impose their conception of value on others. They make the society part of their own political project and exclude the projects of others. Those citizens who reasonably disagree can then either defer to them or contest the values—neither of which is consistent with understanding politics as a mutual endeavor between equals. Deference does not give enough weight to one’s own position, while contestation involves treating politics as a matter of enmity, at least in part (Ebels-Duggan 2010: 57; Leland & van Wietmarschen 2017: 158; Leland 2019: 75–78). The only terms of engagement that avoid these problems are ones based on values that are shared between reasonable citizens. According to political liberals, as described in Section 1.1, such values are those that form the basis of public reason. Correspondingly, it is only when political power is wielded on the basis of public reasons, that is, it is publicly justified, that it is consistent with civic friendship.
These relations of civic friendship rely not merely on laws and policies being publicly justified, but also on the fact that there are institutional norms that require public justification. Absent institutions requiring public justification, each citizen is left to have their own threshold for determining whether to support publicly justified laws and policies. For citizens will have three sources of reasons available to them—their own private reasons, public reasons, and the pro tanto value of publicly justified laws and policies.15 What these reasons will support overall in any particular case will depend on the private reasons that citizens have based on their own values, ones that are not shared with others. The extent to which citizens support publicly justified laws, then, is determined by the particularities of each citizen. By contrast, institutions requiring public justification provide citizens with a shared exclusionary reason against using their private reasons in political decision-making—the formal or informal institutions direct agents, in general, to exclude their private reasons in political deliberations.
I think that having these kinds of exclusionary reasons is required for civic friendship. Friendship requires that agents exclude from consideration reasons that are inconsistent with the central commitments of their relationship. Otherwise, the relationship is never in a settled state—the participants are always leaving the relationship open for negotiation because they are always weighing the costs of maintaining the central commitments of the relationship against the benefits of their violation. If I am constantly considering whether I should try to turn our friendship into something that serves my own ends, I am leaving our friendship unsettled, even if I end up not doing so. This idea extends to civic friendship: Public justification is a central commitment of civic friendship. It is part of what constitutes the fact that citizens are undertaking a common project that they all can be committed to. If citizens treat public justification as just a pro tanto consideration, then they are failing to be fully committed to civic friendship, as they are constantly weighing the value of that commitment against the opportunities that come with abandoning it in any given case. Civic friendship, then, requires that citizens, at least in general, exclude their private reasons from political deliberations.
Further, these exclusionary reasons should be shared between citizens. That is, civic friendship is not about the private relationships between individuals within the society, but rather about how citizens relate to one another as citizens (Leland 2019: 78–80, 93–94). The central commitments of civic friendship should structure how citizens relate to one another in the political arena. Without some shared standard that excludes private reasons from political deliberations, then, the political arena itself is organized in such a way that treats the relationship of civic friendship as unsettled. This is true even if some citizens privately choose to exclude private considerations from their political deliberations, and so meet the condition described in the previous paragraph. For this is an accidental feature of their status as citizens, and they could always choose to not exclude their own private considerations. What is lost, then, is the idea that this is a commitment held by citizens as citizens, and is rather left to citizens as individuals.
For this reason civic friendship requires not just that laws and policies are publicly justified, but also that citizens have a shared commitment to publicly justifying laws and policies. This commitment can be represented as a norm that citizens adhere to within the society—it provides a commonly recognized standard for citizens to adhere to. A society that lacks such a norm would correspondingly lack part of what is necessary for civic friendship. Institutional norms requiring public justification should correspondingly be adopted in a society committed to civic friendship. These norms both provide a way for citizens to assure each other of their commitment to civic friendship—they provide common standards to guide conduct and to hold each other accountable—and also partially constitute the way in which the political system excludes non-public considerations from political deliberations.
Citizens may, of course, find that they would prefer to not have such institutions—that the costs imposed are too much. This is simply the judgment on the citizens’ part that the burdens of civic friendship—or at least the kind of civic friendship appealed to by political liberals—are not worth the costs. But it seems appropriate that this is a decision undertaken by the political community itself, where they decide whether to maintain or alter their institutions, rather than each citizen deciding on their own whether civic friendship is worthwhile. Civic friendship provides support for thinking that public justification has a role that is not captured in terms of pro tanto considerations for policies, but also in terms of supporting institutions that require public justification. This validates the institutional principle as distinct from the pro tanto principle.
3.2. Burdens of Subordination
Another value that political liberals appeal to in defending public justification is the idea that public justification is needed to avoid subjecting citizens to laws that are based on considerations that they reject. While there are a number of versions of this argument, here I will focus on a recent articulation by Jonathan Quong (2016). The general idea is that there is a cost imposed when someone is required to comply with a system wherein they can reasonably reject the reasons for at least some of the rules of that system—when the rules are not publicly justified. This cost is that citizens will have to subordinate their own values when complying with those particular rules. This is because in giving the citizen reasons to comply with those rules, it is (in general) necessary to appeal to the reasons underlying the rules—why the rules are adopted—which ex hypothesi some citizens reasonably reject. To comply for those reasons citizens would have to subordinate their own values—they would have to accept, in some sense, reasons which they reasonably reject.16 This requires citizens to become alienated from their own values in complying with the laws and policies, as they have to, in some sense, abandon those values in complying with the laws.
A system wherein laws and policies are not publicly justified thus imposes costs on individual citizens in virtue of needing to subordinate their own values to comply with the laws. What is more, this system leads to an unequal distribution of these costs. Some citizens will not have to bear any costs because they will not reject the reasons that underlie the laws—or perhaps they will have independent reasons to support them. Other citizens, those who reasonably reject the laws, will need to bear such costs. The state is both responsible for creating the costs and for their unequal distribution, as it is through the exercise of state power that they are brought about.
The costs imposed are not mere misfortunes that citizens may suffer, but of central concern for the state’s normative standing. For part of the function of the state is provide a fair system in which citizens may form and act on their own reasonable conceptions of value, compatible with other citizens forming and pursuing theirs as well (Rawls 2005: 15–22; Quong 2016: 139). Requiring a citizen to subordinate their own values is in conflict with providing such a system as it undermines the ability of citizens to act on their own reasonable conception of value. Moreover, if the state is meant to provide a fair system, then the fact that there is an unequal distribution of this cost is another concern for the state. For to have an unequal distribution in how politically important interests of citizens are protected by the state, at least without some justification for that distribution, is to treat them as less than fully equal members of the political society. It denies their standing as equals, whose interests are just as important to protect as everyone else’s (Quong 2016: 142). This is a sense in which laws and policies that are not publicly justified fail to respect citizens—they create a system wherein some citizens must bear the costs of subordinating their values to the demands of others.
This argument suggests that there is a pro tanto reason to create a system of governance in which citizens are not differentially subjected to the costs of subordinating their values by needing to act on the basis of reasons that they reject. I think that a constitutive part of achieving this system of governance is that there are informal, and perhaps formal, institutions requiring that laws and policies are publicly justified.
When laws and policies are publicly justified, all reasonable citizens have reasons that they can accept to comply with the laws—the public reasons which support the laws. Citizens therefore do not need to act on the basis of reasons they reject, and so do not need to subordinate their values. The objectionable relations of subordination, though, are only avoided when there is a requirement that laws and policies are publicly justified. The problem is that by not having an institutional structure requiring public justification, the political system leaves it to individual citizens and officials to unilaterally decide whether they will be in egalitarian relations with others by choosing whether to support publicly justified laws and policies—similar to trying to create an egalitarian distribution of resources through the individual charitable efforts of citizens. In this way, it is left open to each to unilaterally decide on the equal standing of other citizens—they get to decide if in a given case they are willing to try to impose the costs of subordination on others.
This presents a problem for holding that citizens and officials just have pro tanto reasons to support laws and policies that are publicly justified. If the fact that a law or policy is publicly justified is simply a pro tanto consideration for that law or policy, then the decision is left in the hands of individuals in each instance. Such a system allows citizens and officials to unilaterally decide whether they will respect each other’s interest and so the relative political power of some group will determine who suffers the burdens of subordination. This is insufficient to capture the way in which public justification is meant to address the problem of citizens needing to subordinate their own values to comply with the law.
By contrast, institutional requirements make it so that it is not up to the individual citizen or official to decide whether to respect the interests of others—that is decided by the institutional structure. The system as a whole affirms the interests that citizens have in not subordinating their values and can enforce an egalitarian, or otherwise fair, distribution of such interests by imposing a general requirement that citizens and officials act on the basis of public reasons. This is, of course, just a pro tanto consideration for these institutions. It may be that it is too costly overall to have such a requirement. Even so, it seems important that this is a collective decision—to have the institutions or to not have them. For it makes clear that the decision to impose the costs of subordination on some citizens is not a unilateral decision, giving each individual the authority to decide whether to respect the important interests of other citizens. Rather, the political society collective evaluates whether respecting those interests is overall worthwhile given the possible competing costs.
4. The Viability and Variability of the Institutional Principle
The previous section argued that the institutional principle can be supported separately from the pro tanto principle. To more fully vindicate the institutional principle, though, it would be useful to situate the principle within the dialectic from Section 1.2. For it seems that the institutional principle replicates the problematic features of the public justification principle: It also imposes a requirement on officials and citizens to use public reasons in their political deliberations. Consequently, it seems that we can recast the objections to the public justification principle in Section 1.2 as objections to the institutional principle—and so even if the institutional principle can be distinguished from the pro tanto principle, it may do no better than the public justification principle. I want to address this concern over the next two sections—first by showing that sometimes the value of institutions requiring public justification can be sufficiently weighty to justify those institutions, even in the face of the concerns raised in Section 1.2, and then by showing how, even where they are not weighty enough to justify adopting those institutions wholesale, they can still play a relevant role in institutional design.
4.1. Viability of the Institutional Principle
Both the institutional principle and the public justification principle impose requirements that laws and policies are publicly justified. In Section 1.2, I raised concerns that the public justification principle’s requirement of public justification is too demanding. If these concerns were sufficient to justify abandoning the public justification principle, then why not think that such concerns are also sufficient to establish that no institutions requiring public justification should ever be adopted?
The main difference between the public justification principle and the institutional principle is that the public justification principle, as a claim about legitimacy, makes a strong claim: That it is impermissible for any state to be legitimately organized such that non-public reasons are relied upon in the justification of laws and policies. The implausibility of this may be due to the invariance in whether a society should have institutions requiring public justification. For the institutional principle to be relevant, though, a comparatively weaker claim is needed: That for some societies it is plausible that the losses brought about by adopting institutions requiring public justification can be outweighed by the gains. The mere fact that there is a similarity between the institutional principle and the public justification principle in that they both impose requirements concerning public justification does not mean that the intuitions against the latter carry over to the former.
Recall the two intuitions from Section 1.2: (i) that requiring public reasons excludes the use of non-public reasons, irrespective of the weight of those reasons, and (ii) that requiring public reasons undermines the integrity of some agents. The weight of these considerations need not be invariant across all social forms. I will focus on (i) first. It may be the case that the difference in policies supported by public, as opposed to non-public, reasons is relatively minor in some cases because the conditions of the society make them propose similar laws and policies. For the society might itself already adopt norms and practices that largely comply with the direction that non-public reasons require. In those cases, the loss caused by not implementing policies on the basis of non-public considerations might be relatively minimal—those values might be promoted within the society itself and so relatively little is lost by failing to adopt them in guiding political decision-making.
Suppose, for example, that liberal perfectionists are right and having opportunities to lead an autonomously chosen life is central to human flourishing (see Raz 1988; Wall 1998).17 It seems likely, then, that a society with institutions requiring the use of public reasons will result in little lost value overall—since public reasons are, generally, reasons based on certain liberal values then it is likely that the political structure of the society already allows for significant autonomy and a wide range of valuable ways of life. The failure to allow certain non-public considerations—such as liberal perfectionist considerations about autonomy—within political decision-making seems like a relatively weak consideration against adopting institutions requiring the use of public reasons in this context. It is thus likely that the benefits of adopting institutions requiring public justification will frequently outweigh the costs, assuming liberal perfectionism is true.
Alternatively, take the claim that abortion involves killing a morally significant life—a paradigm example of a position where it may seem overly demanding to prohibit people from relying on their non-public reasons (Leland 2019: 90–91; Ebels-Duggan 2010: 67–70).18 Even in these cases, the demandingness of conforming to public justification depends on the particular social condition. Suppose that a society has developed reproductive technology to such an extent that it is relatively easy, and cheap, to externally gestate a fetus. Alternatively, or additionally, imagine a society where the widespread availability of contraceptives and sex education, combined with an effective social safety net for those with children, has all but eliminated abortions done for non-medical reasons simply through the dispositions of the citizens. Abortion is rarely practiced within these societies, and almost always done for medical reasons. The practical need to shape the society on the basis of non-public reasons concerning when life begins is minimal and the benefits of civic friendship and egalitarian relations may be significant in these contexts.
These cases show that the conditions of a political society determine the costs and benefits of adopting institutions requiring public justification, allowing that the considerations raised in Section 3 could outweigh citizens’ non-public reasons in some circumstances. How easily and frequently this is the case will depend on what the actual costs of such institutions are—for example, if liberal perfectionism is true, the costs will be relatively little, and so it will be easier to justify such institutions across a wide variety of social contexts, while if it is true that abortion kills a morally significantly life, the costs are more significant, and so the set of societies in which such institutions can be justified will be relatively narrow.
A similar story can be given for (ii), the threat to people’s integrity brought about by the requirement to use public reasons. However we understand this threat to integrity, it seems that social conditions can make it more or less significant. Whether the society is more or less accepting or compatible with a preexisting viewpoint can change the integrity costs for citizens. The need to alienate one’s own view in political deliberations threatens one’s integrity less if society already largely conforms to one’s views or if there are social structures in place that provide adequate support for one’s identity. How significant the costs to citizens’ integrity are depends on the structure of society and so the weight of the integrity concerns need not override the values supporting institutions requiring public justification.
The general point is that whether there is sufficient reason to adopt institutions requiring public justification depends on the actual conditions of the society in question and it is at least plausible that some societies may be structured such that there is sufficient reason to adopt such institutions. Whether such institutions should be adopted is a matter of political calculation—those within the particular society must evaluate the conditions they are in and determine the appropriate trade-offs between the values served by institutions requiring public justification and the values lost out on by having such institutions. The argument in this section should serve, I hope, to dispel the thought that the values served by institutions requiring public justification must always lose out. It is, if nothing else, reasonable for at least some political societies to choose to adopt such institutions.
4.2. Variations on Institutional Structures
So far I have defended the institutional principle in an all-or-nothing fashion—that a state is to adopt some suite of formal and informal institutions that approximate the kinds of institutions required by the public justification principle. The discussion in Section 4.1 concerned the conditions under which anything like that could be justified. The public justification principle promotes this all-or-nothing kind of thinking—it is a principle of legitimacy, and so it imposes a requirement that laws and policies are publicly justified as a matter of permissible state conduct.19 The institutional principle, by contrast, does not require us to think in all-or-nothing terms. That is, it is compatible with the institutional principle that the reasons to adopt institutions requiring public justification are not weighty enough to justify the entire bundle of institutions that the public justification principle might require, but rather support only adopting some institutions. It is possible to disaggregate the various institutional structures that are part of requiring public justification and see whether the particular institutional structures can be justified, rather than the whole bundle.
This disaggregation strategy can be implemented along various dimensions: subject matter, agents, types of considerations, and so forth. For instance, it may be that there is good reason to allow normal political decision-making to use non-public reasons, but prohibit it in the case of constitutional essentials. Or we might not require that citizens use public reasons in political debate, but do require it for politicians or maybe civil servants. Or, perhaps, we only require that certain particularly trenchant controversies within society are excluded from the justification of laws and policies—perhaps excluding exclusively religious and anti-religious justifications, but not controversial justifications in general. These are each institutions that partially impose requirements for public justification.
The general point is that institutions can be adopted to target specific aspects of the political system. Once we think that there are just pro tanto reasons to adopt the institutions, we need not think that adopting them is an all-or-nothing matter, but rather just about adopting the formal and informal institutions that are best in the situation. This helps explain the relevance of the institutional principle throughout various social conditions. Even if only a few societies can justify the wholesale adoption of institutions requiring public justification, it seems plausible that the costs of adopting some institutions requiring public justification in some domains can be justified. For example, the costs of integrity can be reduced if only civil servants or other government functionaries are required to act on the basis of public reasons, rather than all citizens.20 It becomes more plausible that limited requirements for public justification impose fewer costs, and so are more likely to be justifiable.21
Of course, the fact that only some institutions supporting public justification are adopted also suggests that there are weaker reasons to adopt those institutions on the basis of the values outlined in Section 3. I do not think this is an issue. It is plausible that such institutions can still contribute to the relevant values, and having some institutions that require public justification might provide significant gains for the relevant values—a requirement that politicians rely on public reasons, for instance, might contribute significantly to ensuring that there is an egalitarian distribution of how people’s judgments are subordinated, even if this requirement does not extend to the citizens generally. At the very least, it would require a more careful examination of the particulars of the situation than is possible here. The point is just that it seems plausible that the values that support institutions designed to promote public justification can still provide significant weight to adopting some of those institutions.
If so, then the institutional principle’s relevance is not constrained to the range of societies that fit the description in Section 4.1. It is the case for any society that there may be reasons to adopt some institutions requiring public justification. For the intuitive costs of requiring public justification described in Section 1.2 seem strongest when the requirement is relatively absolute. Allowing partial requirements for public justification, and a theory that explains why partial requirements for public justification are sufficient, thus avoids the sting of those intuitions for a wide range of social forms. The institutional principle provides this explanation. Citizens and officials will generally have reason to take institutions requiring public justification as a serious option, even when they might not have sufficient reason to adopt the whole set of institutions.
5. Concluding Remarks
My focus in this paper has been on what role public justification can play within political life. I have argued that even if we have reasons to abandon the traditional role of public justification as a condition on legitimate state conduct, it can still be more than merely a pro tanto consideration in favor of certain laws and policies. Rather, we have pro tanto reasons to adopt institutions that require public justification—what I have called the institutional principle. To conclude this discussion, I would like to turn to political liberalism more generally to evaluate how adopting the institutional principle, as opposed to the public justification principle, can inform debates concerning the role of public justification.
Among political liberals there are various controversies concerning the requirements of public justification. Must all the laws and policies of a political society be publicly justified, or should only those involving constitutional essentials?22 Does the requirement apply to all citizens, or only to public officials?23 Should the society permit citizens to appeal to non-public reasons, so long as they later make a case in terms of public reasons, or should they only appeal to public reasons?24 Must citizens be sincere in their appeals to public reasons, or is it enough just that they are able to present a case that there are public reasons supporting their preferred law or policy?25
For political liberals these institutional questions hang together. This is because the public justification principle makes a claim about what is required for liberal societies to be legitimate. To be able to set standards for legitimacy, political liberals need to answer what must be publicly justified, who must engage in public justification, and so forth for liberal societies in general. Otherwise the principle would fail to specify the necessary conditions for legitimacy in terms of public justification. This is one sense in which the public justification principle is an all-or-nothing principle.
This all-or-nothing character leads to difficult puzzles. Take the debate about whether public justification should be required only for constitutional essentials. Some political liberals seem to hold that public justification is required only for constitutional essentials because anything more is too demanding on the citizens (Rawls 2005: 227–30). But, as others point out, the basic values which explain why constitutional essentials must be publicly justified also extend to the laws generally (Quong 2011: 273–86). This creates a dilemma: The fact that it is a matter of legitimacy makes the extension of a public justification requirement to laws generally an overly demanding claim on the citizens, but the failure to extend the public justification requirement to laws generally looks like an ad hoc limitation on their theory. Neither option is particularly attractive.
Reinterpreting the requirement for public justification in terms of the institutional principle avoids these problems. These traditional questions are reinterpreted as questions about how institutions requiring public justification should be designed. Put this way, there does not need to be an answer to these questions. Rather, it is a matter of what institutions can be justified, given the benefits of those institutions as compared to their costs. This answer can change in accordance with the context of particular societies—there is no need to assume that there is a single answer. This is especially true given the possibility of disaggregating the institutions that require public justification, as outlined in Section 4.2. Which institutional structures should be adopted will just depend on which ones can be justified. How we answer these questions can change in response to the conditions of the society under question.
To return to the previous example, for the institutional principle there is no need to resolve whether a public justification requirement should be limited to constitutional essentials or apply to laws generally. It is just a matter of whether the pro tanto considerations in favor of designing the institutions in those ways outweighs the costs. This can explain why the demandingness of requiring all laws to be publicly justified can justify not extending a public justification requirement to all laws, while allowing that the considerations involved do not suddenly cease to matter when it comes to laws generally. They just end up being outweighed.
The more general point is that once we shift away from thinking about public justification as a matter of legitimacy, we avoid problems that arise from the assumption that there is an answer to these questions. Instead, there is a more granular task of thinking through how particular institutions requiring public justification are supported by different values, what other values they might inhibit, and the contexts in which a society might benefit from their implementation. While this makes it difficult to make broad claims about how public justification would work within an ideal society, it provides a framework for thinking about the actual adoption of institutions requiring public justification. For the question is just what value can be gotten and what the costs are, not whether this will make the state legitimate, and so even in relatively non-ideal situations we might still be able to find something of value. The shift to the institutional principle, then, provides the resources to shift to a more practical approach to public justification.
Notes
- The classic statement of political liberalism is John Rawls (2005). See also Quong (2011), Lister (2013), and Hartley and Watson (2018). Political liberalism treats public justification as justification for laws and policies following from a shared set of reasons. This can be contrasted with other theories that treat public justification as each citizen having sufficient reason to endorse the laws and policies. For such a view, see Gaus (2011). My focus in this paper is on political liberal public justification and public reason, although what I say may be applicable to other theories as well. ⮭
- For examples see Enoch (2015), Leland (2019), and Wendt (2019). ⮭
- This should not be confused with the idea that there are pro tanto reasons to adopt institutions that are publicly justified. This may also be true, but the model here concerns whether there are pro tanto reasons for states to adopt institutions that require that laws and policies are publicly justified, and not whether such institutions themselves must be publicly justified. ⮭
- My presentation here primarily follows Quong’s interpretation of public reasons, although it simplifies a number of issues. ⮭
- The latter condition is known as “the proviso.” See Rawls (2005: 462–66). ⮭
- This is why there is a distinction between political and comprehensive forms of liberalism. Both forms of liberalism affirm, in some sense, the same reasons, but comprehensive liberals hold that these reasons can be used even if some reasonable citizens dissent from those reasons, while political liberals require agreement. For some discussion, see Quong (2011: ch. 1), Pallikkathayil (2016). ⮭
- Technically, advocates of the public justification principle do not need to hold that public justification has “lexical priority,” but rather that it functions as a kind of deontic constraint on the legitimate (permissible) exercises of power. Like most deontic constraints, there may be conditions under which this constraint is permissibly infringed. I would like to thank Collis Tahzib for raising this concern. ⮭
- Other views sympathetic to public justification that treat it as a pro tanto consideration include Kyla Ebels-Duggan (2010), Chad van Schoelandt (2015), Collis Tahzib (2019). ⮭
- For an argument that the pro tanto principle, or something like it, is compatible with adopting institutions requiring public justification, see Fabian Wendt (2019: 48–51). ⮭
- For some discussion, see Bicchieri (2017: esp. chs. 3–5). ⮭
- While the duty of civility is not legally enforced, political liberals imagine that it would be enforced through the reactive attitudes of citizens. See Quong (2011: 42 fn. 65). ⮭
- See Sections 4.2 and 5 for further discussion. ⮭
- Some may worry that the comparison here is inapt because while parliamentary and presidential systems both achieve the same general value (the value of democracy), the same is not true for having or not having institutions requiring public justification. I do not think that this difference is significant. Even if having institutions requiring public justification achieves different values from not having such institutions, which institutional structure to adopt is still simply a question of which institutional structure gets the most value overall. A problem would arise only if institutions requiring public justification were needed as a matter of legitimacy—so it is impermissible to not have them—but I am operating from the assumption that the arguments in Section 1.2 for why public justification is not required as a matter of legitimacy are correct. I would like to thank an anonymous referee for raising this concern. ⮭
- One may worry about how political norms, or any social norm, can create obligations. This should not be particularly remarkable. Many already accept that some socially imposed rules, for example laws, can create obligations. It seems political norms could as well, especially if we have moral reasons to adopt those norms. Of course, it does not follow that all social norms have such effects—like with laws, it may be that social norms need to have a certain provenance and content (e.g., not be significantly unjust) to genuinely create obligations. Beyond acknowledging the ability of social norms to create obligations, though, my account does not require any particular commitment for how social norms can have normative effects (or, at least no greater commitment than political liberals normally have for the duty of civility). For a discussion of how these requirements might operate, see Hadfield and Macedo (2012). I would like to thank an anonymous referee for raising this concern. ⮭
- See the discussion of Enoch and Leland in Section 1.2 for examples of supporters of the pro tanto principle that take this kind of position. ⮭
- Citizens could have other reasons to comply as well, for instance that they would prefer to not go to jail. These seem to be the wrong kinds of reasons for compliance—they are reasons that are extrinsic to the normative foundations for the laws themselves. We are looking for reasons that are more than simply threats. ⮭
- Supposing they are right is necessary because the argument here is concerned with the cost of requiring public justification, not concerns about integrity or alienation, and so requires that the liberal perfectionist theory (or the claim that abortion involves killing a morally significant life in the next paragraph) are true for there to, in fact, be a cost. ⮭
- For discussion on the political relevance of the moral status of fetuses, see Schouten (2017). ⮭
- This is true even though on some interpretations of the public justification principle the requirement for public justification only applies to constitutional essentials and major social institutions (Rawls 2005: 227–30). While on these interpretations the public justification principle does not apply to all laws and policies, it is still all-or-nothing in the sense that it applies as a condition of legitimacy to all states. That is, all states which fail to satisfy the public justification principle—by failing to have all the laws and policies within the relevant domain publicly justified—fail to be fully legitimate. ⮭
- For discussion, see Vallier (2015). ⮭
- A defender of the public justification principle might also hold that the particular institutions that are adopted to enforce this requirement are variable in response to the particular contextual factors of a society. This might be one way to make the public justification principle more plausible in light of the intuitive challenges in Section 1.2, although it is unclear whether this is a viable strategy if we think of public justification as a matter of legitimacy. See Section 5 for further discussion. ⮭
- Rawls (2005: 227–30), Hartley and Watson (2018: 64–72), Quong (2011: 273–86). ⮭
- Vallier (2015). ⮭
- Rawls (2005: xlix-l; 462–66), Hartley and Watson (2018: 75–82; 2009). ⮭
- Schwartzman (2011), Quong (2011), Carey (2018). ⮭
Acknowledgments
I would like to thank those who have helped me along with this paper: Quyen Pham, Mark Schroeder, and Collis Tahzib. I would also like to thank two anonymous referees for this journal. Finally, I would like to thank Jonathan Quong for his extensive feedback and support in the development of this paper.
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