Volume 6, Issue 1 - Rights and Reciprocity

Why is it important for people to agree on and articulate shared reasons for just laws, rather than whatever reasons they personally find compelling? What, if any, practical role does public reason play in liberal democratic politics? We argue that the practical role of public reason can be better appreciated by examining the confluence of normative and positive political theory; the former represented here by liberal social contract theory of John Rawls and others, and the latter by rational choice or game theory. Citizens in a diverse society face a practical as well as a moral problem. How can they have confidence that others will reciprocate their commitment to supporting governing principles that depart from their own ideal conceptions of truth and value in order to be reasonable to all? Citizens face a practical problem of mutual assurance that public reason helps them solve, and solve as a matter of common knowledge. The solution, on both views, requires citizens’ reciprocal commitment to basing law on a system of shared reasons. Both views place public reason at the core of liberal democratic politics in conditions of diversity, and for quite similar reasons. Our argument illustrates the (often) complementary roles of positive and values-based analysis in constitutional design.

Gillian Hadfield and Stephen Macedo argue that late-Rawlsian stability for the right reasons, that is, stability based on participants’ reciprocal cooperation, can arise even if participants start out only economically rational and indifferent to justice. As they explain, even purely rational actors have an interest in having a neutral “shared logic” to coordinate decentralized enforcement of social cooperation and in internalizing that logic. Once developed and internalized, they add, that logic renders their reasoning public, and their persons, reasonable and responsive to Rawlsian justice considerations. Hadfield and Macedo’s account seeks to lend Rawlsian contractualism a contractarian foundation. I raise five challenges to their account, focusing on the sense in which actors “start out” purely rational; on illiberal means that may serve rational citizens’ joint ends; on the counterexample of Martin Luther King; on the difficulty of specifying the mechanism for shared logic-internalization; and on the further counterexample of a medical student who internalizes compassion, only upon the condition that it serves his rational aims.

In view of the explanatory significance of joblessness, some social scientists, policymakers, and commentators have advocated strong measures to ensure that the ghetto poor work, including mandating work as a condition of receiving welfare benefits. Indeed, across the ideological political spectrum, work is often seen as a moral or civic duty and as a necessary basis for personal dignity. And this normative stance is now instantiated in federal and state law, from the tax scheme to public benefits. This Article reflects critically on this new regime of work. I ask whether the normative principles to which its advocates typically appeal actually justify the regime. I conclude that the case for a pro tanto moral or civic duty to work is not as strong as many believe and that there are reasonable responses to joblessness that do not involve instituting a work regime. However, even if we grant that there is a duty to work, I maintain that the ghetto poor would not be wronging their fellow citizens were they to choose not to work and to rely on public funds for material support. In fact, I argue that many among the black urban poor have good reasons to refuse to work. Throughout, I emphasize what too few advocates of the new work regime do, namely, that whether work is an obligation depends crucially on whether background social conditions within the polity are just.

To what extent does the case for exemptions from laws to accommodate religious (and perhaps other conscientious) commitments rest specifically on egalitarian arguments? To what extent should specifically egalitarian or anti-discrimination concerns be used to determine when such exemptions should be granted? This Article considers both of these questions. It argues that while egalitarian considerations have a role to play in both the general justification and case-by-case evaluation of exemption claims, neither the justification, nor the evaluation of exemptions, properly rests solely on specifically egalitarian considerations. At the level of justification, there is an important, independent role for something akin to the principle of respect for conscience recently put forward by Martha Nussbaum; and, when citizens come to evaluate particular claims for exemptions, the anti-discrimination approach put forward by Christopher Eisgruber and Lawrence Sager in the context of the U.S. and its constitutional tradition is more plausibly seen as a complement to the “balancing test” which has been used historically rather than as an alternative to it.

The right to private property is among the most fundamental in liberal theory. For many liberals the idea of the state is grounded in its role as a protector of private property. If the liberal state is justified by its ability to protect property, the modern welfare state is often justified by its ability to meet needs. According to a view commonly referred to as “welfarism,” the very fact that needs exist implies there is a moral obligation to meet them. In this Article I appeal to Rawlsian contractualist justification, including the “criterion of reciprocity,” in developing a third manner of thinking about the relationship between property and welfare. I argue that welfare rights are necessary conditions for justifying a role for the state in enforcing the “right to exclude,” a fundamental element of private ownership. My Article thus aims to use Rawls’ account of justification, outlined in his later works, to theorize the notion of property-owning democracy from Theory of Justice.