535
Must Politics Be War?
In Defense of Public Reason Liberalism
Forthcoming with Oxford University Press
Version 2.0
Kevin Vallier
Associate Professor of Philosophy
Director, Program in Philosophy, Politics, Economics, and Law
Bowling Green State University
Note to Readers: You may circulate this draft without my permission, but citations to the manuscript must cite the version number so that they are not confused with future drafts, which may change considerably. Comments are welcome.
NEW IN THIS UPDATE:
1. Moral peace is understood as the social state that results from a rational, moral trust in shared moral rules rather than moral conventions.
2. The discussion of intrinsic value and the realist foundation for public reason has been dramatically shortened and altered.
3. There is a new stand-alone chapter discussing the value of moral peace and how it grounds an ideal of respect for persons. The foundation is importantly distinct from the previous version.
4. The supplement has been either deleted or moved into this document.
5. At present, the book is too long by 15,000 words. Advice on what to cut is appreciated.
Table of Contents
Introduction……………………………………………………………………………………..……………………..3
Chapter 1: Social Trust Moral Peace……………………………………………….………..…….….20
Chapter 2: The Value of Moral Peace.……………………………………….…………………………..54
Chapter 3: Public Justification………………………………………..………..…………………………..116
Chapter 4: Legal Systems………………………..………………………………………………….……..…180
Chapter 5: Primary Rights………………………………………….……………………..………………...244
Chapter 6: Constitutional Choice……………………..………..……………………………………….291
Chapter 7: Associations……………………………..………………………………………………………...328
Chapter 8: Property Economy……..……….……………….………………………………….……...381
Chapter 9: Process Democracy………………………………….…………………………………………453
Epilogue…………………………………………………………………………….………………………………...520
Bibliography…………………………………………………………………………………………………………522
Index…………………………………………………………………..……………………………………………....536
Introduction: Must Politics Be War?
“War is politics by other means.” ~ Carl von Clausewitz
“Politics is war by other means.” ~ Michel Foucault
American politics is more divided today than at any point since the Civil War. There are fewer moderate politicians on either side of the political divide, and an increasing spirit of hardened partisanship has made political compromise, even on issues where compromise is desperately needed, all but impossible. With the advent of internet politics and social media, Americans can easily insulate themselves from opposing points of view, and constantly reaffirm their own prejudices, and even grow more radical and intolerant over time. We find among Republicans an almost entirely closed media circuit, with Fox News and talk radio driving even much of the political agenda of the Republican Party. While the intellectual and media base of the Democratic part is much larger, we find an increasing hostility to alternative points of view in the Academy, where membership in the Democratic Party is heavily concentrated.
In light of these social conditions, one might wonder whether American politics isn’t invariably a struggle for power between the righteous and the wicked. American political life looks like a brute contest for dominion, where the victors drag the country in their direction without concern or respect for the losers.
Our present condition raises the specter of a more general concern. People have said for centuries that political life as such is war. Be it the orthodox vs. the heretical, the rational vs. the superstitious, the racially pure vs. the impure, the productive vs. the parasitic, the story is the same. Politics is an arena of strategic confrontation where parties struggle to defeat their opponents. Even democracy is a gladiatorial encounter. Philosopher David Enoch’s recent remarks speak for many; with respect to politics, “there is no way out of the arena,” and we are all mere players. We must “enter it, to fight, shoulder to shoulder … for what is just and good.”[1]
This book attempts to identify social, political, and economic institutions that could convince people with divergent worldviews that our shared political life is a fundamentally moral enterprise. That is to say, we could look at political contestation and negotiation as within the bounds of an acceptable public morality. Under these institutional conditions, social life in a diverse society would not be naked institutionalized aggression, but rather a deep, but respectful disagreement about collective choice on matters where individual and local choice is not feasible or attractive.
Some may see this aim as fundamentally utopian. But I do not contend that politics can suppose or aim at agreement about the good or about what justice requires, or other matters of deep dispute. Rather, I am asking whether there are institutional structures that can sustain a rational social trust in our public moral order. Can the ordinary practice of directing the moral and political actions of others be justified given our deep disagreements? Can we show, at least in principle, that each person has sufficient reason to endorse the social rules that govern us all, such that our disagreements can be governed by common rules that each regards as morally binding? I grant that it is not easy to show that this practice is justified and that there is a shared moral order that we can endorse together. But I am convinced that a book length treatment of the problem can show that the project is not beyond our ken.
This book is a work of political philosophy, an abstract inquiry into the conditions that would morally justify social and political institutions. It is not a work of history or of social science, though it appeals to both historical and social scientific considerations. Since political philosophy is invariably a lofty enterprise, one might wonder how it could be used to solve such a real-world practical problem of an overly partisan politics. The answer is that political philosophy can identify practical possibilities with attractive moral qualities. As such, it can perform some critical functions. The philosopher John Rawls argued that one practical aim of political philosophy “is to focus on deeply disputed questions and to see whether, despite appearances, some underlying basis of philosophical and moral agreement can be uncovered.”[2] And if this goal is too ambitious, then political philosophy can at least help us narrow these disagreements “so that social cooperation on a footing of mutual respect among citizens can still be maintained.”
My goal is similar to Rawls’s, though with an important difference. Rawls came to believe that free societies invariably must face the “fact of reasonable pluralism,” which means that persons will inevitably disagree about matters of ultimate import, such as the nature of the good and the truth or falsity of religion.[3] The fact of reasonable pluralism would destabilize a society that is governed by a single conception or account of the good life because even some reasonable people would eventually reject that conception or at least endorse goods that might override that conception. In response, Rawls concluded that the theory of justice could still perform its reconciling function, so long as people with different understandings of the good could endorse a shared conception of justice. But towards the end of his career, Rawls despaired even of this, acknowledging that reasonable people can disagree about which liberal conception of justice is correct, at least within a limited range. The hope, even at the end of Rawls’s life, was that justice could play a central role in narrowing our divisive political questions and securing respectful social cooperation.
I believe that reasonable disagreement about justice runs as deep as reasonable disagreement about the good. Informed people of good-will disagree so much about what justice requires that we need to identify some other domain of the moral to reconcile us despite an ongoing disagreement about justice. Just as relations of justice were thought to reconcile us despite our disagreements about the good, we can identify some broader moral relation to reconcile us despite our disagreements about justice. So the project of this book is deeply Rawlsian in spirit, but follows the Rawlsian line of argument from where Rawls left it.
In my view, securing mutually respectful social cooperation only requires rational social trust in our shared moral order. We are subject to a wide variety of moral and legal rules that we use to direct one another’s behavior. We order one another to engage or refrain from engaging in many lines of conduct, and those orders raise the question of their justification. If our practice of insisting on certain behavior from others cannot be justified, then it looks as those these demands are small-scale acts of war. They are attempts to dominate and browbeat one another. If political philosophy is to perform its reconciling function, we must locate a moral standard by which we can distinguish between demands that preserve respectful social order and those that disrupt it. To put it another way, we need a moral standard that can establish moral peace between persons, a state of society with widespread, rationally justified social trust that our shared moral practices have authority such that free people can use it as an ongoing, mutually justified basis to preserve, rather than undermine, social order. The right moral standard can explain how free people who deeply disagree can requires lines of conduct from one another without risking authoritarianism, disrespect, sectarianism, and instability. If these requirements have authority, then each person can see herself as under a duty to comply with these requirements, and as such, can have no legitimate objection to them.
The moral standard I defend is public justification. A public justification for a moral or legal rule specifies when an agent has sufficient reason to endorse the moral or legal rule in question. If each agent in a society has sufficient reason of her own to endorse the moral and legal rules to which she is subject, then I argue she can be said to be reconciled not merely to being subject to the rule but reconciled with others who direct her to follow the rule, including others very different from herself. Thus, an account of public justification can form the foundation for relations of trust between diverse persons. If each person is only subject to moral and legal rules that she sees herself as having reason to endorse and believes that others have sufficient reason of their own to endorse, then she sees that each person has distinctively moral reason to comply with the rule, and so she can trust others to follow it. By establishing social trust in this way, then, a standard of public justification can succeed where the theory of justice fails.
Of course, as we shall see, any account of public justification is going to be controversial among reasonable people. But if the standard of public justification is required to secure a widely endorsed and weighty moral good like social trust, then the standard is well-grounded. For insofar as persons have reason to endorse that good, they have reason to establish a moral and legal order whose rules are publicly justified.
I offer three arguments that a social trust between persons is a great moral good. First, social trust is extrinsically valuable because it lays the foundation for the accumulation of social capital, or social knowledge that persons can use to form mutually beneficial social relations. Social capital, we shall see, is critical for making any large-scale political and economic institutions work well. So social trust has extrinsic value because of its central role in making institutions work. Second, social trust has value because it is a precondition for forming a wide array of social relations on which we place great value, such as relations of love and friendship. Without social trust, we lack the grounds for extending trust to persons we do not know, which undermines our capacity to form any moral relationship with them at all. A trustless world is one that lacks love and friendship, and relations of love and friendship are perhaps humanity’s most cherished goods.
My final argument is that rational social trust in our shared moral order helps to specify an attractive ideal of respect for persons. When we insist upon treating persons in accord with moral and legal rules that can be justified from their perspective, we recognize that they are inviolable. That is to say that there is a real moral requirement that we treat persons with respect, which requires treating them in accord with rules that can be publicly justified. Rawls thought that the ideal of respect for persons could only be made determinate by appealing to a theory of justice, with all its attendant complications.[4] I shall argue that the standard of public justification, by establishing the conditions for rational social trust between persons, yields a superior specification of respect for persons. The standard of public justification specifies the conditions for respect even in cases of deep disagreement about what justice requires.
An ideal of respect for persons helps to explain why we should think that treating others in accord with the standard of public justification has overriding force in determining how we should interact with those we disagree with. If we focus only on the value of social trust, we cannot explain why other values cannot override public justification. But if public justification specifies a conception of respect for persons, public justification can inherit its moral priority from respect for persons. This is because a standard of respect for persons arguably lies at he center of that part of morality that determines what we owe to one another.
The standard of public justification grounds an account of public reason liberalism, a liberal theory of social legitimacy and authority that emphasizes the importance of justifying coercive law to multiple reasonable points of view. As the inheritor of the social contract tradition in political philosophy, public reason liberalism attempts to create a social contract among citizens: a complex agreement on the terms of social life. But unlike the social contract tradition, which relies on the problematic notions of express and tacit consent, public reason relies on the idea of public justification.[5]
Unlike most versions of public reason liberalism, however, I do not think the most fundamental thing to be publicly justified is coercive law. Public justification applies not merely to laws but to moral rules that comprise what P.F. Strawson, Kurt Baier, Joseph Raz, and Gerald Gaus have called a social morality.[6] The turn towards a social morality helps demonstrate that the public reason project is not an attempt to promote the interests of the modern liberal state. Instead, as I will argue, the liberal state is considerably limited by the fact that moral peace between persons is most often realized through non-coercive moral rules alone.