PUBLIC REASON: Lawrence Solum, in a lengthy post on “legitimacy,” suggests the following possibility: that legitimate state interests are “those that rely on public reason and illegitimate state interest rely on nonpublic reason.” Of course, this leads to the question of “what is public reason?” – which Solum goes on to ask. A few remarks about what he says about public reason:

The first thing to wonder about is what kind of concept “public reason” is. Solum says that public reason is the “common reason” of a society. But is common reason merely an statistical notion? By this I mean that the common reason of a society is just what most people tend to believe is the case, what passes for “common sense.” If this is the case, then there’s no particular restriction on theological beliefs being part of a society’s public reason, so long as most (all?) people believe in them. And in addition, morals laws might be legitimated by public reason, if enough people believed in the moral principles they enforced. So on the statistical interpretation, public reason doesn’t have much content – it’s just what most people happen to believe. A reason given by a church, for instance, grounded in that church’s sacred texts, could pass as a public reason, so long as enough people were members of that church (that its members constituted a large part of the “public at large.”

Is there way we can give public reason more bite? A slightly stronger way to cast public reason is to say that, as a matter of fact, there is no such large consensus on moral/religious beliefs so that any of these beliefs can serve as a basis for public policy. But this is only because, given religious and moral pluralism, we’re not likely to reach a consensus on anything unless we bracket our controversial moral and religious beliefs. And lack of consensus on some vital things is bad, sometimes even worse than waiting for the day when our particular vision of the good will triumph. So for strategic reasons, we agree to a common mode of discourse, of “public reason,” because we realize that that’s the only way we’re going to get along.

This is to give public reason still too weak of an interpretation, I think – it makes it into a modus vivendi. We don’t appeal to our view of the good for strategic reasons; it won’t win a consensus, it may only anger those who disagree with us. But one would have thought we might agree to speak in terms of only public reason on moral grounds, viz., that it would be unfair to impose one’s theological views on other people, say. This is a stronger claim, with normative bite, but we need an explanation of why it’s unfair to impose those theological beliefs on others, even if they do have a majority in favor of them. We could say, after all, that fairness is preserved if a procedure is democratically enacted, and that all parties had a roughly equal chance to air their position.

If we want to say in response to this that we can’t use controversial philosophical beliefs to impose on people laws that violate their fundamental rights or interests, then it seems clear that what is doing the work is not public reason per se, but a prior understanding of what those rights and interests are. We agree with the majority in Lawrence, if we do, because we think that right to privacy in this instance is fundamental. That is, we think those who oppose that right are mistaken, in the content of their belief, rather than in the terms that they cast it in (we don’t object to the fact that their arguments against same-sex intercourse are theological; we object to them because they are wrong, though this may also entail that we think their theological beliefs are wrong as well). My worry is that to cash out Solum’s idea of public reason, we’re going to fall pretty quickly into some view about the content of morality, about what things people have rights to and what they don’t. I don’t know how else to draw the line between public and nonpublic reason other than on substantive moral grounds, i.e., public reasons are reasons that advance the moral principles we find worthy of assent, and nonpublic reasons are those that don’t. Still, in a way, I hope I’m wrong about this. And there does seem something right about saying that what's wrong with a certain sort of (public) argument is that it's theologically based. But can talk of "public reason" adequately cash out this intuition?

- posted by Chad @ Wednesday, July 09, 2003