Discussion and Review

The very first sentence of the Conclusion is illustrative: “The philosopher’s stone that transforms individual goal pursuit into social restraints on goal pursuit is, like other alchemical projects, enticing but misguided” (547). Let’s reflect for a moment on why Gaus begins the conclusion of this 550-page book in this way. Wasn’t this point merely one of many made along the way? Isn’t this just part of the point of the book?

I. Hayek and the Social Contract Tradition

I suggest that if we take Jerry at his word, we can shed light on the deepest themes in the book. First, note that this claim in effect rejects the entire basis of the social contract tradition, a tradition one might easily think that Jerry is defending and extending rather than rejecting. In some sense, Jerry rejects the contract metaphor. The idea that our interest in social morality can ground our reasons to follow social-moral rules (the idea that arguably lies at the heart of the contractarian tradition) must be rejected; and Jerry has tried to show why at great length. Instead, we must adopt an entirely distinct philosophical anthropology, one that is at root deeply Hayekian, for as Jerry says, “Our reason did not produce social order - we did not reason ourselves into being followers of social rules. Rather, the requirements of social order shaped our reason.” This just is Hayek, who wrote:

Man is as much a rule-following animal as a purpose-seeking one. And he is successful not because he knows why he ought to observe the rules which he does observe, or is even capable of stating all these rules in words, but because his thinking and acting are governed by rules which have by a process of selection been evolved in a society in which he lives, and which are thus the product of the experience of generations (LLL, 11).

Many of you know Hayek the classical liberal, but Jerry is following Hayek the social theorist, who attempted to integrate the rationality of rule-following into his philosophical anthropology at the deepest level. Jerry has argued throughout the book that the conception of the person employed within public reason liberalism and liberalism broadly speaking must move in this Hayekian direction. If public reason liberals follow Jerry’s lead, the fundamental structure of public reason and even the nature of the social contract theorists’ project must substantially change. In short, political justification must not begin with deriving the rationality of rule-following from a teleological conception of practical reason. Instead, it must begin with an understanding of the nature of human beings who are already rule-followers and the nature of the moral emotions and cooperative activities that accompany such rule-following. It is in this way that Jerry moves most forcefully away from Hobbesian conceptions of public reason. He goes further by arguing that even the Kantian conception of the person he endorses cannot be constructed out of practical reason alone. Instead, human nature contains Kantian elements for thoroughly Humean-Hayekian-evolution reasons. Our rule-following nature is contingent on our social development (though no less contingent than our goal-seeking nature).

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In 25.1 Jerry comments on the quotation from Green that opens the chapter. At the end of the rich passage, Green says “That, however, is the beginning, not the end, of the state. When once it has come into being, new rights arise in it and further purposes are served by it.” Green was not as adverse about the further purposes as we might be. Jerry wishes to examine what further purposes states may serve after it has assumed the role “as interpreter and protector of social morality”. Might there be a function of states as “providers of services and goods that are not morally required”? In our time, ever since the rise in the influence of economics or what used to be called political economy, the first task that comes to mind is the provision of public goods or, more colloquially, the remedying of “market failures” (i.e., externalities). With what are known technically as public goods, the benefits accrue to people independently of their contribution to their production. They thus create what is called a “collective action problem”, which often approximates an n-person PD. The two defining features of a public good are indivisibility (once produced it is available at no additional cost to anyone) and nonexcludability (it is not feasible or efficient to exclude people from enjoying the good). The thought is that states may or should step in and facilitate the production of the good, taxing people for the costs. If all goes well, the result will be mutually beneficial for all or, more colorfully, progress towards the Pareto frontier.

Jerry rightly points out that there are alternative institutions and communities capable of addressing many public goods problems. Given how dangerous state action can be — and I would add, clumsy — Jerry argues that we should seek assistance first in non-statist approaches. But he concedes that there are “times when the state and its coercive power appear to be the only viable way to cope with some problems. In these cases, the provision of public goods is, at least in principle, capable of publicly justifying state coercion” (533). He rightly points out that the costs of providing the good in question must considered when raising the question.

25.2 considers a problem with this abstract case for the state provision of public goods, namely, “that few goods are purely public”. If some Members of the Public prefer no good to particular packages of goods and costs, then no proposal for producing the good will pass. The result is constraining, “a severe restriction on the range of justifiable public policy.”

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Sects 24 and 25 are likely to be as controversial as the others in this chapter. In 24, “Private Property and the Redistributive State”, Jerry defends a three basic propositions:

- Private property rights are justified in Jerry’s theory at a relatively early stage, and this constrains what is to follow.

- Socialism will not figure in the eligible set.

- A variety of redistributive frameworks will also be rejected.

I’ll start with the first (subsect. 24.1). Jerry starts by reminding us that in 18.3 he established private property when considering public justification in conditions of evaluative diversity. There, following a suggestion of an early John Gray, Jerry argues that a jurisdictional conception of private property rights are what “deeply pluralistic social order[s]” need to handle their disagreements. A jurisdictional conception of private property rights understands property as “a sphere in which one’s evaluative standards have great authority for others” (374). [Small point: The name of this account, used by Eric Mack in his interesting account of rights, can mislead if one comes to think that the authority of the property owner rivals the state’s jurisdictional rights. If one wanders onto the land of the US federal government, that is, the land it owns, then one is subject to its authority (in the sense above). But even on one’s own land in the US one is subject to the jurisdictional authority of American government (at different levels), or so the latter claim. US law is supposed to determine what counts as ownership, etc. The state’s authority is jurisdictional in a more elementary sense, I think, than the Mack-Gaus one.]

Jerry grants that property rights depend more on the state than other rights. “… the right to private property must be interpreted and developed, but to a far greater extent than other abstract rights, is definition depends on the state” (509). This is largely true, though Jerry could have used a less misleading word than ‘definition’. And it is always worth remembering that there was a great deal of property prior to the rise of modern states. [The political conditions of medieval life typically defy being categorized as either “states” or “states of nature”.] Again, on the next page: “Thus, far more than other basic rights, the political order determines our rights of property.”

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I’m going to structure my discussion of this section a little differently. I’m also going to be a bit polemical about it. Perhaps this treatment will galvanize some discussion about this section, which I believe is rather significant for Gaus’ argument.

In the preface to the book, Gaus decries the tendency of political philosophers to turn into hedgehogs, each championing one among many potential political creeds (liberal egalitarianism, libertarianism, Marxism, communitarianism, etc.). Gaus then announces his attention to take a different, “foxier” path, one that does not endorse a particular political philosophy, but asks how we should think about the moral order—including the political order—in a world lacking reasonable agreement about many basic moral questions. In doing so, he eschews any desire to champion, hedgehog-style, any single political philosophy—including libertarianism, a philosophy with which he is prominently associated (p. xv). I distinctly remember reading this passage months ago and saying to myself, the philosopher doth protest too much. And lo and behold, many months later, I am not surprised to see that Gaus’ in-depth examination of the nature of morality is yielding libertarian political conclusions.

I should be clear here—I don’t think there’s anything wrong with Gaus attempting to defend libertarianism in this book. If something like reflective equilibrium is a legitimate method for producing valid moral claims, one would expect Gaus, a libertarian, to endorse a libertarian political system, and to argue that the moral situation in which we find ourselves today calls for libertarian principles. If his analysis of morality had yielded the conclusion that communism was the only acceptable economic system, one would expect Gaus to go over the argument seven or eight hundred times until he had found the problem with it. Again, let me repeat—there is nothing illegitimate about this as a method of argument. But it is a little disingenuous of Gaus to act as though he is merely following the argument where it goes, and the fact that it leads to pro-libertarian conclusions is just some sort of happy accident.

Technically, of course, Gaus’ argument does not unambiguously endorse any particular political order. But Gaus’ analysis of morality most definitely tilts in a libertarian-friendly direction. Reasonable people who aim to settle upon a political order, says Gaus, will consider which principles they could reasonably accept as the basis for such an order. They will do so on a principle-by-principle basis; they can do this, because Gaus eschews any efforts at evaluating competing political orders as a whole. Of course, Gaus says, they will endorse all the standard things that libertarians like to endorse—basic rights to life, liberty, and property. But will they endorse anything else? It should be clear that there will be a very serious obstacle to their doing so. Endowing the political order with any further powers will only be morally legitimate if every reasonable moral citizen would agree to such endowment. And there is an important class of people—libertarians like Gaus himself—who can be expected to object to any such expansions of state authority. In effect, libertarians can reasonably count upon other citizens endorsing a set of principles which, considered all by themselves, constitute the libertarian ideal point. Not surprisingly, libertarians will be reluctant to endorse any move away from this ideal point, and their endorsement is necessary in order for any such move to be legitimate.

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Overview of §22

Chapter VIII of Gaus’ book is entitled “The Moral and Political Orders.” Appropriately enough, it takes up the topic of the relationship between the moral and the political order. Section 22 deals with the place of political authority in a broader story about moral authority. Section 23 discusses coercion in relation to moral and political authority.

Section 22 (“The Authority of the State”) begins by contrasting Gaus’ position with that of the social contract tradition. The latter, Gaus argues, holds that “There is no role for social morality as a distinct and independent source of moral authority” (p. 450). In order to reject this position, Gaus examines what he calls the “Comparative Procedural Justification Principle,” which states that “If the Members of the Public have available two procedures for selecting from the optimal eligible set, O and P, and P is itself publicly justifiable, while O is not, P should be employed” (p. 450). This principle is weaker than the Procedural Justification Requirement, which he discusses earlier. The former, unlike the latter, does not demand a uniquely justified optimal principle; it just demands a publicly justifiable principle be used. Gaus agrees that certain institutional arrangements (basically, those of modern representative democracies) may be good ways to protect basic individual rights (p. 452). This is why “Constant included political rights among the rights of the moderns” (p. 452). But this is “insufficient to yield the justification of a system of governance,” because there are many possible institutional arrangements that might accomplish this goal (p. 455). Hence the Comparative Procedural Justification Principle “does not support political authority over informal social authority, for political authority too relies on informal social-moral authority—an evolution of a political-moral culture leading to the selection of one of a wide range of acceptable political systems” (p. 455).

Gaus then investigates the nature of political authority. Following Thomas Christiano, he distinguishes between three different ideas of political authority. The first, which Gaus endorses, recognizes that states have a blameless liberty to coerce people into obeying its rules. There are good reasons why reasonable people would endorse such rules. Any society will possess people who simply do not respond to moral rules (e.g., psychopaths). Such people can respond to strategic incentives, however, and so if the harms that violations of moral rules can produce are to be avoided, then the state ought to have permission to align incentives appropriately (through threats and, presumably, offers; p. 463). Second, the state has the ability to push people (i.e, through incentive alignment) to participate in a particular moral equilibrium. Gaus holds that in doing so, the state is doing more than just providing a focal point upon which people can coordinate. For “the authority of the state allows us to make the implicit claim that should there be controversy or uncertainty about our claim, there is an authoritative answer that we all have reason to endorse”—the answer provided by the state (p. 466). I’m not really clear on what Gaus is driving at here, but it seems to be a second-order claim that the dictates of the state in resolving conflicts about moral equilibria creates a distinct moral reason for endorsing the resolution. It’s not just that the equilibria would in fact be an equilibria, and that it seems to be the one everyone is moving (thanks to the state) to accept. In addition, there is a moral obligation to do what the state says when it tries to do this. Without this additional moral obligation, the state is serving merely as a focal point, for everyone except psychopaths unable to respond to moral reasons. The third notion of authority is the idea that states have a “right to rule” (p. 468). Gaus takes this idea to mean that when states create rules, people have obligations to the states themselves to obey them. Gaus rejects this idea, and claims that whatever obligations people have to obey moral rules is owed to their fellow citizens. This is compatible with my interpretation of Gaus’ second notion of political authority; one can believe both that it is morally wrong not to accept the moral equilibria generated by states, and that if I commit this moral wrong, I am wronging my fellow citizens, not the state itself.

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Overview of §21

The Deliberative Model, as is now familiar, is indifferent between the various rules in the socially optimal eligible set as possible bases of equilibrium.  It doesn’t select one of the rules as the favoured basis of an equilibrium.  The lesson of §19-20 is that it does select one of the rules as the favoured basis of an equilibrium once it is in actual fact the basis of an equilibrium.  Since the Deliberative Model, according to Gaus, “explicates the moral point of view” (425), that raises questions about the power of the moral point of view to ground criticism of moral orders.  In §21, Gaus explains the extent to which the moral point of view does have that power, and why, to the extent that it doesn’t, that isn’t an objection to it.  (more…)

Overview of §20

In §20, Gaus explores the idea—foreshadowed in §19—that not only can a selection from the socially optimal eligible set of rules be justified as a result of convergence in a ‘Kantian Coordination Game’ (see §19.2), so that “[c]oordination on a morality can occur even though no procedure of coordination has itself been publicly justified” (410), but “the process of arriving at a publicly justified morality may well be a social evolutionary one, in which people gradually come to coordinate on a common set of moral rules” (410).   (more…)

Overview:
As I read it, section 19 attempts to lay down one of the foundation stones for GG’s larger effort to reconcile two apparently opposed ways of thinking about the authority of moral rules:

(1) the ‘instrumentalist’ (Hobbesian, Humean, Gauthierian) view that ‘social morality is necessary for human cooperation and social life’ and
(2) the ‘deontological’ (Rousseau, Kant, Strawson, Rawls, Darwall) view that moral requirements are irreducibly constituted by relations among agents who recognize their mutual standing as free and equal persons.

Earlier in the book, GG has said that ‘both are correct’ (193): social morality is both a ‘device’ of social coordination and a body of rules deriving its authority from its consistency with respect for the freedom and equality of all agents. In this section, GG starts to explain how they are integrated and, moreover, why both are necessary. According to GG, taking (1) more seriously than contemporary Kantians often do is the key to overcoming the threat of ‘indeterminacy’ that hangs over the public reason idea.

The ‘indeterminacy’ involved arises because there are, in principle, many alternative sets of moral rules that are consistent with the ‘rights of agency’ and the ‘abstract’ idea of ‘jurisdictional rights’ GG has defended in earlier chapters. Even if these general entitlements can be publicly justified, agents must still settle on a scheme of rules that all can regard as having requisite moral authority. Without such a settlement, it will be impossible to reach agreement on how exactly the more general entitlements of ‘free and equal’ persons should be interpreted in particular cases. Each of these more specific schemes of moral expectations is publicly justified, yet so far no one has sufficient reason to accept any of them as uniquely publicly justified.

One is tempted to suggest here that a uniquely publicly justified scheme can be identified only if it is selected by a collective decision rule that is itself publicly justified. The main point of this section is to deny that this ‘Procedural Justification Requirement’ (392) is necessary. This is good news, according to GG, because he appears to believe that that requirement is impossible to satisfy without resorting to highly artificial – and hence reasonably rejectable – redescriptions of the choice situation (as with Rawls’s Original Position).

In the body of the section, GG attempts to explain how it is possible for a uniquely justified set of social/moral rules to emerge automatically through interaction between agents who are at all times acting only on reasons that reflect their own commitments. To establish the possibility of such a solution, GG relies on a series of game-theoretic coordination models. These are intended to illustrate how the bare, even random, fact of convergence (within iterated interaction) on one of a pair of alternative moral schemes can be (1) an equilibrium solution and (2) in large N-person cases generate a bandwagon effect. As a result of iterated interaction, players in these games find themselves in situations in which they acquire sufficient reason to accept schemes of rules just because others have already opted for them; as more and more do so, we reach a point at which everyone has sufficient reason to go along with the option around which convergence is occurring.

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Gaus begins with a discussion of the function of rights and an attack on the common taxonomy of choice vs. interest theories of rights.  Rather than give a theory of the necessary conditions of something being a right, Gaus is concerned with what he calls the jurisdictional function of rights.  Gaus’ concern with rights is practical; he is concerned with what rights do, not with giving a theory that specifies the necessary and sufficient conditions of rights.

In so many places in OPR, we have seen Gaus put aside the traditional metaphysical and epistemological concerns with reasons, morality, and responsibility to focus on the practical problems that arise from an attempt to make sense of individual reason and social morality.  The distinctiveness of Baier-Strawson view (which should really be just called the Gaus view) is primarily this focus on the essentially practical nature of the philosophical enterprise.

Gaus sees rights as a solution to the practical problem of the incommensurability of values.  How is it possible to find a collective choice or social agreement between persons when their fundamental values so often conflict?  In the last section we saw that one solution may be to abstract or idealize to find out what common standards we share, but as we have seen, this solution only has limited usefulness.  Another solution is to “partition the moral space” (372) so that each individual is the rightful decision maker in his or her own defined sphere.  In effect, why not privatize social morality in a publicly justified way so that not all value questions are open to social choice?  In each individual’s sphere, they are sovereign and others may not  override their decisions.

The contrast to what might be called the devolution of moral authority is what Gaus calls the centralizing response.  The centralizing response hold that when faced with evaluative diversity, the proper response is look to commonalities in values to try to regulate and organize social morality with an overarching standard.  The problem with this solution to the problem of diversity is that, as we saw in the last section, it is indeterminate.  In contrast, by devolving moral authority each individual has a determinate authority over a determinate sphere.  This solves the problem of seeking a common standard for the basis of public moral authority by relocating that authority in the rules of devolution rather than in the substantive claims of public moral authority itself.

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Chapter VI begins by reminding us of an important conclusion from the previous chapter, namely, that the Members of the Public (MoP) will be confronted with a large set of rules of social morality, and that with respect to these rules, the MoP (as a group) is indifferent (they prefer any member of the set to no rule at all, but do not converge on any particular member of that set).

The goal of this chapter is to advance to two partial solutions to this ‘problem of indeterminacy.’  They both concern individual rights, specifically, those rights commonly known (from Benjamin Constant’s famous essay) as the ‘liberty of the moderns.’  These solutions are only ‘partial’ because they serve only to narrow somewhat the set of eligible rules of social morality, but do not pick out any particular rules.

Section 17 presents the first of these two partial solutions.  In this section, drawing on the work of Benn, Gewirth, and Rawls, Gaus employs an ‘argument from abstraction’ to show that all reasonable Members of the Public would be committed to endorsing, at least in an abstract form, certain fundamental individual rights (the ‘liberty of the moderns’), as such rights are essential for effective agency.

Gaus begins the section by reminding us of the ‘Kantian-Rawlsian two-step procedure’ for arriving at justified principles under circumstances of reasonable pluralism (diversity of ends and values among the reasonable MoP). Roughly, this procedure involves ‘bracketing’ our disagreements, adopting a shared perspective, and reasoning on the basis of this shared perspective (the perspective of pure practical reason for Kant, the perspective of the original position for Rawls).

Gaus advances his own ‘argument from abstraction’ in this section in order to show that the MoP would support certain individual rights for all persons.  However, specific interpretations of individual rights, that is, specific rules, acceptable to all MoP in accordance with the ‘deliberative model,’ will need to be formulated at a later stage.  Nonetheless, showing that all reasonable MoP endorse such rights can serve to narrow the set of eligible rules of social morality (rules that deny such rights to some persons or deny them altogether are ruled out).

Gaus claims that the success of any argument from abstraction (whether Rawls’s original position argument, or the argument that Gaus advances in this section) depends on three claims:(a) the successful identification of a shared perspective (the original position for Rawls; the perspective of abstract agency for Gaus); (b) the importance or weightiness of the evaluative standards identified by the shared perspective (why the conclusions of the shared perspective should be taken seriously by the MoP for the purposes of evaluating rules of social morality); and (c) the ability of the conclusions generated via the shared perspective to survive the return of the Members of the Public to their ‘full set of evaluative standards’ (i.e., the ability of the conclusions of ‘pro tanto justification’ to survive ‘full justification’).

Gaus asserts that it was a concern with (c), the compatibility of the conclusions of the shared perspective (the conception of ‘justice as fairness’ endorsed by the parties in the original position) with reasonable persons’ various ‘comprehensive doctrines,’ that prompted Rawls’s move to political liberalism.  Rawls’s commitment to the original position device as the appropriate perspective for ascertaining principles of political justice remains constant from A Theory of Justice to Political Liberalism (p. 336).  As we’ll see, Gaus thinks that while the first principle of justice as fairness (the basic liberties principle), or some version of it, survives (c), the difference principle cannot.

The “second abstraction characteristic of Rawls’s original position,” Gaus explains, is that it focuses on the justification of abstract principles rather than rules.  Gaus restates his claim (from 14.3) that “principles are too vague and too subjective to interpretive controversy to provide an effective framework for cooperation” (p. 337).  Nonetheless, identifying principles shared by the MoP can be useful, since such stably shared principles would at least eliminate many proposed rules for social morality.

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Summary

This section begins with the problem of how to rank qualified proposals offered by Members of the Public (MoPs) in the Deliberative Model. One option would be to consider all proposals simultaneously, but Gaus rejects this possibility as unrealistic given our cognitive limitations. He argues instead for pairwise comparisons of proposals to construct ordinal rankings that satisfy modest conditions of social choice, including “asymmetry of preferences, symmetry of indifference, reflexivity of preference, and transitivity of strict preference” (305). (more…)

Summary

In the last section (V.14), Gaus advanced the Basic Principle of Public Justification and developed a Deliberative Model for determining whether social morality satisfies that principle. Andrew Lister summarized the parameters of the model here. Most of section V.15 is devoted to specifying the model further by constraining the set of rules that may qualify as proposals within it.

Before discussing particular contraints, however, Gaus describes the Deliberative Model as reflecting the Kantian idea of “legislation in the realm of ends” (292). Every person represented in the model is both subject to the law and the legislator of it. But, as Gaus notes, this is a fairly sophisticated idea. What if normal moral agents (NMAs) can’t understand or appreciate it? We can’t expect most people to grasp the complex philosophical arguments offered for reasoning from within the Deliberative Model. As Gaus says, not everyone is a stage 6 Kohlbergian reasoner. The question, then, is how to develop the Deliberative Model so that justifications for proposed rules of social morality (or “proposals”) are accessible to all NMAs. The answer is that the model itself need not be accessible to all NMAs; only the reasons offered for proposals must be accessible (and acceptable) to them. You don’t have to be able to read (or understand) the Order of Public Reason to have sufficient reasons for endorsing rules of social morality, but you do have to be able to understand the reasons that justify those rules.

Having addressed this concern about the accessibility of the Deliberative Model, Gaus next specifies and defends a number of formal constraints that qualify proposals as moral rules, rather than rules of some other kind. These constraints are as follows: (more…)

A rule that fails to meet this standard will be one that will not support the normal reactive attitudes with respect to all normal moral agents. But so what? Why is it crucial that all normal moral agents be subject to resentment and indignation for rule violations, to the point that it would be preferable not to have a rule at all, than to have a rule that (in virtue of being reasonably rejectable) would fail to license reactive attitudes with respect to even just one normal moral agent? Gaus’s answer, I think, is that our moral practices include not only reactive attitudes such as resentment and indignation, but prescriptions that claim to be authoritative. We express resentment and indignation as a prelude to issuing imperatives. But if someone doesn’t have sufficient reasons to endorse a rule, it would be wrong for us to order them to comply with it, which means that the rule would effectively not apply to them. But then we would not have a common set of rules of social morality; instead, we would have a parcellized set of rules covering the various overlapping bits of conflicting evaluative perspectives. Morality would not fulfill its function.

If this is the argument, I have two doubts. The first is that I’m still not clear that moral practices involve claims to authority, in the specific sense of authority of one person over another, authority to command compliance in face of disagreement, e.g. “Even though you don’t think you should ?, you should still ? simply because I am ordering you to ?.” Moral practice clearly involves expression of reactive attitudes and claims that others should respect the authority of morality, but these claims may simply be epistemic claims about what is right, rather than claims that others should defer to our judgment about what is right.

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Gaus rejects the requirement that deliberators deliberate in terms of shared reasons. To be a bona fide moral rule, a rule must be endorsed by each and every member of the appropriately (i.e. partly) idealized public, each based on the total set of reasons he or she accepts. “Mutual intelligibility” requires only that these personal evaluative standards pass some threshold of plausibility such that they can be generally recognized as genuine moral perspectives. But members of the public will still think that many of the reasons their fellows appeal to are bad reasons. They also think that this use of bad reasons for the assessment of moral rules is appropriate. In intellectual argument each will criticize the other for accepting bad reasons, and argue that others ought to change their views. When it comes to determining what count as valid moral rules, however, everyone accepts that each will assess proposed rules based on his or her own evaluative standards, and that rules will count as valid only if they meet with the unanimous approval from these diverse perspectives.

An alternate view would be that deliberators accept that they are to deliberate only on the basis of the reasons they share. What is wrong with the shared reasons view? Gaus’s answer in Section 14.4 (d) comes in the form of a response to Jon Quong’s argument for the shared reasons view.¹ Quong’s argument is based on the requirement that public reasoning be sincere. I will explain the dispute, then briefly argue that the underlying issue isn’t really about sincerity.

Insincere deliberation may be justified in some circumstances, but it is pro tanto morally bad because it makes public reasoning into a form of manipulation. If I argue that your beliefs commit you to supporting a particular proposal even when I don’t think they do, then I am not respecting your capacity for rational moral agency; I am treating you as a thing to be moved, not a person to be reasoned with. Conversely, sincerity in public reasoning expresses respect, helping to sustain civic friendship. Quong formulates the idea of sincerity in public justification in terms of three conditions, involving persons A(lf) and B(etty) and a proposal X.

1. A reasonably believes he is justified in endorsing X,
2. A reasonably believes that B is justified in endorsing X (…)
3. A may only… offer arguments in favour of X to B that he reasonably believes B would be justified in accepting.²

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1. Jonathan Quong, Liberalism Without Perfection, OUP 2010, Chapter 9 “The Scope and Structure of Public Reason” [↩]
2. Gaus cites the first two of these conditions on 288. All my quotes from Quong are from Chapter 9 of from Liberalism Without Perfection [↩]

Overview

Section 14 defines the “Basic Principle of Public Justification” (BPPJ) and lays out “the deliberative model” that specifies the principle. The BPPJ provides a necessary condition for a moral imperative to be authoritative. The assumption is that an imperative “?” is made in a particular context C based on a rule L. The condition is (1) that each normal moral agent has sufficient reasons to internalize L and hold that L requires ? in circumstances C, and (2) that moral agents do generally conform to L.

The BPPJ provides a rule-based standard for assessing particular moral demands in context, and so has as one of its components a criterion for determining when a rule counts as a bona fide moral rule; each and every normal moral agent must have sufficient reasons to internalize the rule. The idea of a normal moral agent (NMA) has figured in Gaus’s earlier discussions of moral psychology. A person is a moral agent if they have the capacity to understand and care about following social rules for its own sake; such an agent is normal if they have the cognitive capacities of a fully-functioning but still boundedly-rational human being. Thus some people do not qualify as NMAs, either due to lack of cognitive capacity (young children, severe mental disabilities) or lack of ability to internalize rules (young children, psychopaths). The reasons an NMA “has” are not the reasons there truly are, nor simply the reasons that agent thinks she has. On the one hand, Gaus argues that there is no point in saying that I “have” a reason if it is completely inaccessible to me, given my epistemic situation. On the other hand, he accepts that I have a reason not to cross the bridge in front of me even if I don’t think I have such a reason, if a reasonable amount of investigation and reflection would reveal the bridge to be unsafe (234-6). The reasons a NMA has are thus the reasons she would have if she engaged in a respectable amount of good reasoning based on what she currently believes (summarizing 250).¹

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1. For doubts about the idea that we have reasons that we would recognize if we deliberated more, see Alexander Moon’s comment to the previous installment of the discussion group [↩]

Once we give up on the idea of full rationality, we are led, Gaus argues, to theorize from the point of view of what John Pollock called real rationality.  Pollock distinguishes, helpfully, between justified and warranted choices.  Justified choices are the products of epistemically valid procedures of reasoning; warranted choices are the product of all possible relevant reasoning.  Gaus argues “in a world of less than perfect information and cognitive capacities, we need some concept to indicate when a person’s reasoning about the world is up to acceptable standards and when it is not.” (247)

This conception of justification cannot be equated with truth, however.  The fact that there is a reason does not necessarily mean that anyone actual person will necessarily be justified in acting on that reason.  One can be justified in having a reason, but what ultimately matters in terms of interpersonal justification is whether or not that reason is warranted.  One can be reasonably said to have a reason, however, if they do not have any defeaters that are accessible to them.  This standard is importantly not that there are no defeaters, there may be, but they are not accessible to a person that has done a reasonable amount of reflection and investigation.  Gaus argues that “the reasons you have must be accessible to you, and as a real rational agent in a world in which cognitive activity has significant costs, rationality does not demand one keep on with the quest to discover less and less accessible reasons.”  (253)

What counts as a respectable amount of deliberation is often vague and will vary with context.  Gaus compares what counts as a respectable amount of deliberation in a physics seminar to what counts for a baseball umpire.  Baseball umpires need to make calls quickly and, hence, deliberation must be very quick, understanding that there will be a certain amount of error.  Not so in a physics seminar.

Morality, after all, is not meant to be the esoteric doctrine of the epistemic elite.  We expect normal adults to be able to grasp and follow the rules of social morality.  Gaus claims that “normal moral agents have accessible undefeated reasons to affirm” the rules of social morality. (255) The idea that normal adults should be able to recognize their moral reasons sets a maximum limit on the epistemic demands of normal moral reasoning. But, we must be careful not to set the bar too low.  People do wrong and we often think it is because they did not take sufficient care or deliberation before they acted.  The thing to do is not always glaringly obvious.  After all, our conceptions of social morality are not static, we genuinely learn both from our own actions and from what others tell us.  The possibility of moral change, both progressive and regressive, occurs because finding out what reasons we have is often a social and collaborative venture.

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Gaus begins this section by noting that the idea of social morality that he has been advancing seems to rely on an internalist conception of reasons.  As he claims, the debate between internal and external reasons has become a kind of obsession.   Gaus’ conception of reasons stakes out a position in that debate in opposition to what Joseph Raz has called the Classical View of external reasons as facts about properties of action.  On the Classical View, internal reasons are merely beliefs about facts, not reasons themselves.  The internalist, however, argues that reasons for action must be connected to the motivational set of an agent, that is, to her beliefs and desires about the action in question.   The debate between internal and external reasons has, according to Gaus, become confused.  The debate is really about what reasons there are or what reasons exist.  It is, therefore, really a question about the ontology of reasons.  But, as we have seen throughout the Order of Public Reason, social morality in a world of constrained and embodied reasoners is about what reasons we have, not with what reasons there are.  Gaus’ theory then is only inconsistent with externalism if the externalist also holds an externalist theory of what it means to have a reason, basically that to have a reason is for there to be an external reason that applies to that person.  Gaus rejects this form of externalism, the externalist view of having a reason, as implausible.

Externalism about having reasons is implausible because “it misconstrues the relation between having a reason and being a rational agent.” (233) Consider Aristotle, for instance.  The externalist is committed to saying that Aristotle had a reason to accept the truth of particle physics; but surely, Gaus argues, to think that Aristotle had a reason to embrace particle physics is to make a serious mistake.   Reasons are justificatory, but there is no way that Aristotle could be justified in believing particle physics.  Similarly, to claim that a person or a group have a certain moral reason even though that reason is totally inaccessible to them, in the same way that Aristotle’s reason to accept particle physics is inaccessible, is to not only misuse the language of reasons but, more importantly, to misunderstand and “undermine the point of discourse about reasons and rationality.”(235) We use the idea of having a reason, according to Gaus, to make the actions and intentions of other people intelligible.  The externalist view of having a reason severs the idea of a reason from its role in explaining and justifying action.

Rejecting the externalist view of having a reason does not, however, commit Gaus to, what he calls, the Reason Affirmation Thesis that to have a reason is to affirm that one has that reason.  Affirming a reason is neither necessary nor sufficient to having a reason.   The neurotic may affirm reasons that they do not, in fact, have–crazy beliefs, that the world will end if one blinks for instance, do not provide reasons.  Affirmation is also not necessary to have a reason, all that is required is that there be, in the words of Bernard Williams, “a sound deliberative route” from the subjective motivational set that one has to the reason.  We might think of the Reason Affirmation Thesis as the idea that only the reasons that an agent actually claims to have at any time can justify action.  The rejection of the Reason Affirmation Thesis means that Gaus is committed to some amount of idealization of rational agents.  If we notice that we need to go beyond the actual reasons that agents claim to have, we need another standard of what counts as a reason.  The problem is that once we begin to idealize, we move closer and closer to the externalist view of having a reason.  Gaus cites Steve Wall who argues that once we begin to idealize we realize that “a fully rational person will affirm all, and only, the (external) reasons that apply to her.” (237) If Wall is correct; we will have backed into the externalist view of having a reason merely by idealizing.

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If sections 4 - 11 have been primarily descriptive, section 12 is where the book begins to take a distinctly normative turn. Having sketched over the last three sections an account of how his positive and normative projects relate to one another, in section 12 Gaus expands the discussion he left us with at the end of section 11 in order to bring his descriptive work to bear on some of the questions he set out at the beginning of the book.

As I pointed out in my earlier comments, Gaus concludes section 11 with a brief discussion of the relationship between guilt, moral authority, and moral autonomy and as I said above, section 12 is primarily dedicated to developing this discussion further. Gaus emphasizes that guilt is part of the mechanism through which we internalize moral rules and on his view this is important for two closely related reasons:

(i) When an individual feels guilty for violating a moral rule, that guilt carries with it an implicit recognition of the authority of those who make demands on her that she comply with the rules of social morality. In this way, guilt complements resentment and indignation in Gaus’s Strawsonian account of how the moral emotions constitute the practice of social morality; guilt being the mechanism that gives standing to others to make demands on us, whereas resentment and indignation are (among) the mechanisms through which we make the actions of others our business. This is Gaus’s focus in 11.4.

(ii) By facilitating and ultimately manifesting our internalization of moral rules, guilt expresses our moral autonomy. When it is directed at a moral rule (and not simply a taboo), guilt typically indicates that an individual accepts the authority of the rule over her and is capable of appreciating the reasons why the rule applies to her. This, as opposed to (i), is Gaus’s focus in section 12.

Although Gaus spends a lot of time discussing the importance of guilt, he begins section 12 by discussing the moral emotions more generally. In particular he emphasizes that the moral emotions have built in appropriateness conditions, meaning that they typically require (or at least entail) that the person subject to a moral emotion has certain beliefs about the person towards whom her reactive attitude is directed (12.1). As we saw in section 11, on Gaus’s view the moral emotions are a constitutive part of our social morality and in this section he argues that this insight, combined with evidence from moral psychology undermines the rationalistic picture of morality on which reason allows us to overcome our passions. Gaus’s emphasis on the appropriateness conditions of the moral emotions though distinguishes him from ‘the new sentimentalists’ who argue that our moral judgments and practices are grounded primarily in our affect and that our moral emotions do not (and more importantly, need not) carry a substantial amount of cognitive content. On Gaus’s view, both reason and affect are important, and more important still is that our emotions engage our reason in the right sort of way. Ultimately Gaus will argue that it is only when this is true, that our practice of social morality can be consistent with our nature as free and equal moral persons.

In emphasizing the importance of our emotions engaging our reasons, Gaus’s point is not that beliefs about those whom our emotions are directed towards are always prerequisites of the moral emotions, but rather that they are typically required in order for our emotions to be sustained. To illustrate this Gaus directs us towards the concept of responsibility, asking what sorts of beliefs and emotions are required to sustain our practice of holding one another accountable to the demands of social morality. Gaus argues that responsibility requires more than just the ability to identify that a moral rule has been broken and the capacity to blame others for violating those rules. Specifically it requires that the individual being held responsible has certain beliefs and that we know her to have these beliefs. It is hard to sustain blame (and similarly hard to maintain resentment) if we come to doubt that the person we are blaming lacked either the requisite knowledge of the moral rule in question, recognition that the rule applies to her, or an understanding that her actions in fact violated that rule.

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Gaus’s big question is: what sort of social order is appropriate for a society comprised of free and equal persons? The goal of the book then is to provide a framework for gaining critical leverage on our idea of social morality and its attendant practices. Gaus spends the Preface and Chapter 1 laying out the idea of social morality and making the case that social morality is both critically necessary, but at the same time, not an entirely rosy affair. As a result, he argues that our practices call for both normative justification and positive explanation. Chapter 2 began that task by looking at instrumentalist accounts of morality which, Gaus tells us, provide a promising framework for justifying and explaining social morality. Unfortunately, Gaus argues, instrumentalism fails, meaning that we can’t simply reason our way into morality. Chapter 2 leaves us with an explanatory project then that Gaus takes up in chapter 3. There he asks us to look at our actual practices, psychologies, and commitments and, drawing on work in evolutionary game theory, anthropology, and psychology, among other things, he directs our attention to the importance of deontic reasoning, the need for moral/social rules, and the necessity of having a community in which individuals are not merely disposed to follow the rules, but to enforce them as well.

As J. Brennan pointed out in his comments two weeks ago, Gaus’s discussion in sections 7 and 8 of Chapter 3 of how and why something that looks like social morality might develop left us with a number of questions about the normative significance of the descriptive account Gaus offers. I think it’s now clear though that, having left us with these questions, the latter half of chapter 3 is where Gaus begins to offer answers. In sections 9 and 10 Gaus provides us with an account of the rationality of rules and draws our attention to the relationship between positive and true social morality. As Ian Ward emphasized in his comments last week, a core part of Gaus’s story is the idea that an account of true or appropriate social morality must necessarily be constrained by a society’s positive social morality. On Gaus’s view we can gain critical leverage on our practices (in part through employing “transcendent moral concepts”), but that criticism must always proceed from within our existing practices.

In chapter 4 Gaus continues to develop the normative/explanatory project that he began in chapter 3 focusing on how our emotions (sections 11 and 12) and our reasons (section 13) respectively fit into our moral practices. In the rest of these comments I’ll focus on section 11 where Gaus discusses the relationship between our emotions, the concept of moral standing, and our practices of enforcing morality. Later this week I’ll turn my attention to section 12 where Gaus discusses the relationship between our emotions and our concepts of moral autonomy and moral personhood.

Comments on Section 11:

We’ve now seen in several places that an important feature of social morality is that it makes one’s actions the business of others. Section 7’s discussion of the importance of rule-following punishers gave us an account of why this is an important part of social morality, but in section 11 Gaus returns to this important feature of morality, reminding us that we still need an explanation of where the authority to make demands on others comes from. In order to provide this explanation Gaus directs us to two fundamental features of a system of rules populated by rule-following punishers: (i) that we normally display a concern with the conformity of others, and with enforcing this conformity and (ii) a recognition on the part of individuals that the rules normally override one’s own goals, values, and ends (p. 187). Gaus then point us towards our psychology and in particular our emotions in order to explain both (i) and (ii).

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The key concern here is what the normative authority of moral rules consists in.  Gaus identifies two conditions that such rules must satisfy:

1) The justification condition: the rule must pass justificatory muster from the perspective of free and equal persons addressing each other; and
2) The minimal effectiveness condition: the rule must already command some degree of compliance among a significant number of members of the group to which it is taken to apply.

The requirement that a moral rule satisfy both conditions, in turn, places certain constraints on the business of moral theorizing.  Gaus has already claimed that especially austere and rigorist forms of deontolotical ethics that neglect what we might call the holistic character of moral deliberation – the ways in which deontic (rule-based) reasons interact with other species of normative reasons (here Gauss focuses primarily on reasons of the instrumentalist/consequentialist variety; a full account would presumably specify the role of aretaic reasons as well) in context of our reasoning on ethical and political matters.  At the same time, his account of the “strong” character of the relevant rules signals a concern about ethical theories that reduce certain moral concepts to how they are understood within the concept of a particular conceptual scheme, cultural order, or set of social conventions.

Moral rules, and the deontic reasons they generate, must be exhibit some degree of responsiveness to the traditions and practices of a given group:

Unless our analysis of “true morality” connects up with what actual agents see as morality, our philosophical reflections will not address our pretheoretical worries. We come to philosophy worried about the nature of morality, moral relations between free and equal people, and the justification of moral claims. If we develop a philosophical account of morality that tells us what is “right and wrong” that treats moral and conventional rules the same, or sees morality as just another form of prudence, or insists that morality is entirely a matter of reason and so emotion is simply a threat to sound moral judgment – then our account is too far distant from our actual moral concepts to enlighten us about our initial concerns (OPR 174).

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