Legal Theory Lexicon

This is a collection of the Legal Theory Lexicon posts from Legal Theory Blog. A new entry appears each week on Sunday. The most recent posts appear on this page. To access older posts use the "Table of Contents" below. (Many of the Legal Theory Lexicon posts have benefitted from comments by Ken Simons of the Boston University School of Law.)

Sunday, November 09, 2003

Legal Theory Lexicon 009: Public Reason
    Introduction How should citizens in a modern pluralist democracy debate and discuss public affairs? What kinds of reasons are appropriate in the context of judicial opinions, legislative debate, or administrative decisionmaking? There is wide agreement that the government should not censor public debate about politics, at least not without very good reason. But when it comes to a related question of political morality - "To what ideal should citizens aspire in political debate?" - the issue is cloudy. For example, some have argued that religious reason should be excluded from public debate; others argue for the exclusion of statements which degrade people on the basis of their religion, race or ethnicity. Still others contend that in public debate, an ideal of political morality should mirror the freedom of expression: all viewpoints should contend in a marketplace of ideas. An ideal of public reason can provide guidance on these issues. This post provides a very short introduction to the idea of public reason--with a special emphasis on the role of that idea in the work of John Rawls.
    Before we get into the background and complications, let's briefly state the core idea of John Rawls's idea of public reason--the version of the idea that has been most influential in legal theory. Rawls argued that public political debate about the constitutional essentials should be conducted on the basis of public reasons. His view was that public reason included common sense, the noncontroversial results of science, and public political values. Nonpublic reasons include the deep and controversial premises of particular moral and religious theorys; for example, the utilitarian idea that only consequences count would be a nonpublic reason. Rawls thought that the Supreme Court's deliberations and opinions about the meaning of the United States Constitution exemplified the idea of public reason.
    Historical Perspective Where does the idea of public reason come from? Contemporary scholarship sometimes assumes that the notion of public reason was invented out of whole cloth by Rawls, but in fact, it has a long philosophical history. For example, the phrase "public reason" is found in Thomas Hobbes' Leviathan. The section of Leviathan in which this passage appears addresses the question, whose reason should govern the question of whether a purported miracle has occurred?
      For in these times, I do not know one man, that ever saw any such wondrous work, done by the charm, or at the word, or prayer of a man, that a man endued but with a mediocrity of reason, would think supernaturall: and the question is no more, whether what we see done, be a Miracle; whether the Miracle we hear, or read of, were a reall work, and not the act of a tongue, or pen; but in plain terms, whether the report be true, or a lye. In which question we are not every one, to make our own private Reason, or Conscience, but the Publique Reason , that is, the reason of God's Supreme Lieutenant, Judge; and indeed we have made him Judge already, if wee have given him a Soveraign power, to doe all that is necessary for our peace and defence. A private man has alwaies the liberty, (because thought is free,) to beleeve, or not beleeve in his heart, those acts that have been given out for miracles, according as he shall see, what benefit can accrew by mens belief, to those that pretend, or countenance them, and thereby conjecture whether they be Miracles, or Lies. But when it comes to confession of that faith, the Private Reason must submit to the Publique ; that is to say, to God's Lieutenant.
    In this passage, Hobbes uses the phrase "public reason" to refer to the reason or judgment of the sovereign.
    A second use of the phrase "public reason" is found in Rousseau's Discourse on Political Economy:
      In effect, though nature's voice is the best advice a good father could listen to in the fulfillment of his duty, for the magistrate it is merely a false guide which works constantly to divert him from his duties and which sooner or later leads to his downfall or to that of the state, unless he is restrained by the most sublime virtue. The only precaution necessary to the father of a family is that he protect himself from depravity and prevent his natural inclinations from becoming corrupt, whereas it is these very inclinations that corrupt the magistrate. To act properly, the former need only consult his heart; the latter becomes a traitor as soon as he listens to his. Even his own reason ought to be suspect to him, and the only rule he should follow is the public reason , which is the law. Thus nature has made a multitude of good fathers of families, but it is doubtful that, since the beginning of the world, human wisdom has ever produced ten men capable of governing their peers.
    Rousseau's use of the phrase "public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of private individuals. The latter sort of reason is self-interested; the former sort is concerned with the common good. This suggests a connection between Rousseau's idea of public reason and his notion of the general will. The general will (like public reason) is concerned with the good of all; whereas, the individual will (like private reason) is concerned with the good of the individual.
    Another early use of the phrase "public reason" is found in Thomas Jefferson's Second Inaugural Address:
      [I]t is proper that you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration . . . . [They include] the diffusion of information and the arraignment of all abuses at the bar of public reasons
    Jefferson's notion of public reason seems connected to an ideal of democratic government. Information should be widely diffused so that government actions may be judged at the bar of public reason - which in this case seems to be the collective reason of the citizens of a democratic society. In this view, the quality or efficacy of public reason is connected to the freedom of speech and press.
    In What is Enlightenment, Kant introduces the idea of public reason as an answer to a question that might be phrased, "What restrictions on freedom of public discourse will facilitate public enlightenment?" Kant replies:
      The public use of man's reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hinderance to the progress of enlightenment. But by the public use of one's own reason I mean that use anyone may make of it as a man of learning addressing the entire reading public . What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.
    As Kant uses the phrase, "public reason" is defined in terms of the audience to which reasons are given. Public reason is addressed to the entire public. Public reason should be free if the public is to become enlightened - that is, if citizens are to rely on their own reason without the guidance of another. Notice Kant's use of the phrase is, in a sense, diametrically opposed to Hobbes'. For Hobbes, public reason is reason bound by the judgment of the sovereign; for Kant, public reason is precisely that reason which is free from such constraint.
    Here is the point of the history: the idea of public reason is contested, with different theorists offering different conceptions public reason. I am about to give you Rawls's ideas about public reason, but it is very important to realize that Rawls's theory is just one of many, and that new theories of public reason are likely to emerge in the years ahead.
    Rawls and Public Reason In an early formulation, Rawls explained what he has called the "idea of free public reason":
      [G]reat values fall under the idea of free public reason, and are expressed in the guidelines for public inquiry and in the steps taken to secure that such inquiry is free and public, as well as informed and reasonable. These values include not only the appropriate use of the fundamental concepts of judgment, inference, and evidence, but also the virtues of reasonableness and fair-mindedness as shown in the adherence to the criteria and procedures of common sense knowledge, and to the methods and conclusion of science when not controversial, as well as respect for the precepts governing reasonable political discussion.
    Although this discussion contains the core of the Rawls' position, a few additional points deserve separate discussion:
      First, Rawls understands public reason as the reason of a political society. A society's reason is its "way of formulating its plans, of putting its ends in an order of priority and of making its decisions accordingly." Public reason contrasts with the "nonpublic reasons of churches and of many other associations in civil society." Both public and nonpublic reason share features that are essential to reason itself, such as simple rules of inference and evidence. Public reasons, however, are limited to premises and modes of reasoning that can appeal to the public at large. Rawls argues that these include "presently accepted general beliefs and forms of reasoning found in common sense, and the methods of science when these are not controversial." By contrast, the nonpublic reason of a church might include premises about the authority of sacred texts and modes of reasoning that appeal to the interpretive authority of particular persons.
      Second, the limits imposed by Rawls' ideal of public reason do not apply to all actions by the state or even to all coercive uses of state power. Rather, his ideal is limited to what he calls "the constitutional essentials" and "questions of basic justice." Thus, the scope of the freedom of speech and qualifications for the franchise would be subject to the Rawlsian ideal, but the details of tax legislation and the regulation of pollution control would not.
      Third, Rawls' ideal of public reason applies to citizens and public officials when they engage in political advocacy in a public forum; it also governs the decisions that officials make and the votes that citizens cast in elections. The ideal does not apply to personal reflection and deliberation about political questions; by implication it could not apply to such reflection or deliberation about questions that are not political in nature.
    With these features in mind, we can offer a summary of the Rawlsian ideal of public reason; this ideal has three main features: (1) The ideal of public reason limits the use of reason to (a) the general features of all reason, such as rules of inference and evidence, and (b) generally shared beliefs, common- sense reasoning, and the noncontroversial methods of science. (2) The ideal applies to deliberation and discussion concerning the basic structure and the constitutional essentials. (3) The ideal applies (a) to both citizens and public officials when they engage in public political debate, (b) to citizens when they vote, and (c) to public officials when they engage in official action - so long as the debate, vote or action concerns the subjects specified in (2). With Rawls' view in mind, we proceed to two preliminary subjects: first, the role of the idea of public reason in the regulation of public discourse and, second, the ways in which a particular ideal of public reason might be justified.
    Public Reason and Law How is the idea of public reason relevant to legal theory? One answer to this question might begin with Rawls's observation that judicial reasoning, for example the reasoning of the Supreme Court, exemplifies public reason. It would be unusual to see a Supreme Court justice rely on a particular religion or on a deep philosophical view about the meaning of life or the ultimate nature of the good. There are exceptions, however. One of the most infamous Supreme Court opinions in the contemporary period is Chief Justice Burger's concurring opinion in Bowers v. Hardwick, the case that was recently overruled in Lawrence v. Texas. Burger argued that criminalization of homosexual conduct was constitutionally permissible, because the prohibition on such conduct was rooted in Judeo-Christian morality. Arguably this argument exceeded the bounds of public reason, because the United States is a pluralist society in which there are many citizens outside of the Judeo-Christian tradition, including, for example, Buddhists, adherents of Native American religions, and nonbelievers.
    One of the interesting features of the idea of public reason is that it provides an argument against what we might call going deep in legal theory. By going deep, I mean making arguments that rely on deep philosophical premises, about ultimate values on the one hand or metaethics and moral psychology on the other. So, for example, it might be argued that utilitarianism (or welfare economics) is an inappropriate source of legal arguments, when the argument relies on a deep utilitarian premises, such as the notion that only utility (e.g. hedonic value or preference satisfaction) is valuable. That premise, it might be argued, goes beyond public reason.
    The idea of public reason is deeply controversial and the subject of heated debate, but the connections between public reason and law have only recently begun to be explored in depth. For an example of a recent discussion of these issues, take a look at my post on the public reason session at Fordham's recent "Rawls and the Law" conference--here.