politics, philosophy & economics article

© SAGE Publications
Los Angeles, London,
New Delhi, Singapore
and Washington DC

1470-594X
201005 9(2) 151–175

Public justification and the

limits of state action
Andrew Lister
Queen’s University, Canada

abstract One objection to the principle of public reason is that since there is room for
reasonable disagreement about distributive justice as well as about human
flourishing, the requirement of reasonable acceptability rules out redistribution
as well as perfectionism. In response, some justificatory liberals have
invoked the argument from higher-order unanimity, or nested inclusiveness.
If it is not reasonable to reject having some system of property rights, and
if redistribution is just the enforcement of a different set of property rights,
redistribution is legitimate if chosen democratically. This article explores two
problems with this response. First, there are different ways to describe the set
of possible policies, and so different ways to specify the noncoercive default
that obtains in the absence of conclusive justification. Second, if the coercive
exercise of political power must be conclusively justified, policies that are
more coercive ought to require conclusive justification as against policies that
are less coercive. These problems about the baseline with respect to which we
require public justification raise the question of how we measure coercion,
and whether or in what sense there is a presumption against coercion. The
article distinguishes and argues against three such presumptions.

keywords public reason, liberal neutrality, coercion, legitimacy

1. Introduction
The ideal of public justification has been described as the theoretical foundation
and ‘moral lodestar’ of liberalism.1 The exercise of political power is justified
only if it is justifiable to all those subject to it, that is, only if it is acceptable to
all suitably rational and moral individuals without them having to give up the
religious or philosophical doctrine they reasonably espouse.2 This principle of

DOI: 10.1177/1470594X09345680
Andrew Lister, Department of Political Studies, Queen’s University, Mackintosh-Corry Hall, Kingston,
Ontario, K7L 3N6, Canada [email: andrew.lister@queensu.ca] 151
politics, philosophy & economics 9(2)

public reason3 is also controversial. No one objects to citizens reasoning together

about the public good, but there is much disagreement about whether in these
deliberations citizens should exercise ‘epistemological restraint’,4 and appeal
only to those of their moral views that are in some appropriate sense shareable
by all. One worry about the demand for public justifiability is that it would rule
out redistributive policies aimed at promoting social justice, not just perfection-
ist policies aimed at promoting controversial conceptions of virtue, since there
is room for reasonable disagreement about distributive justice, as well as about
human flourishing. Liberals must either allow some perfectionism, it seems, or
sacrifice some justice-based policies.5 This article assesses a particular response
to this objection, a response that I will call the ‘argument from higher-order
un­animity’, or ‘nested inconclusiveness’.
The argument from higher-order unanimity provides a democratic escape clause
for liberals who would also be egalitarians. Although state action must be con-
clusively justified (that is, not reasonably rejectable), we may choose democrati-
cally between actions inconclusively justified against each other, but conclusively
justified against inaction. If redistribution can be described as the enforcement of
a different set of property rights, and if it is not reasonable to reject having some
system of property rights, then redistribution will be legitimate if chosen demo-
cratically. The main problem the article explores is that there are different ways
to describe the set of possible policies, different ways to measure coercion, and
so different ways to specify the noncoercive default that obtains in the absence of
conclusive justification. The article focuses on the work of Gerald Gaus, who has
articulated more clearly than anyone else a conception of public justification with
these two features: the demand that justification of coercive laws be conclusive
and the escape clause that consists of democratic choice between laws conclu-
sively justified as against no law at all. Gaus’s argument is particularly interesting
because he does not merely claim that his theory is reasonable for people like us
to accept. Instead, he grounds his view in ‘basic claims about the nature of moral-
ity and reasoning’,6 and thereby seeks to justify an idea that some have thought
dead,7 but that Gaus claims is ‘radical and compelling’: liberal neutrality.
After explaining Gaus’s argument, in Section 2 of the article, I will identify
two problems with the way we apply the idea of higher-order unanimity: the
aggregation problem and the measurement problem (Section 3). Gaus’s argument
can avoid the charge of arbitrariness by appealing to a rule of maximal logically
feasible disaggregation of policies, and by the rule that every increment of coer-
cion must be conclusively justified. However, there will often be room for reason-
able disagreement about which policies can be assessed independently of others,
and about how coercive rival policies are. In such cases, no matter what we do,
there will be reasonable objections to what is reasonably taken to be coercion.
The fourth section of the article examines the moral rationale for framing public
reason in terms of a presumption against state action. This section distinguishes
three asymmetries (between reasons for action and inaction) that can figure in a

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principle of public justifiability, and argues that that none is justified. In particu-
lar, a Kantian principle of respect for persons does not yield a general demand for
conclusive justification, that is, an exclusion of all reasonably rejectable reasons
across all types of policy.

2. Gaus’s semi-libertarian neutrality

Gaus’s argument contains four essential theses. The first I will call the prima
facie wrongness of coercion. That an action is coercive is always a reason against
it, though a reason that can be overridden by other moral reasons of sufficient
strength (Claims I and II in Gaus’s 2003 presentation of the argument).8 The
second thesis I will call the demand for conclusive justification. Moral justi-
fication requires impartial reasons, and impartial reasons are reasons all fully
rational moral agents would accept when presented with these reasons (Claims
III and IV).9 Simply believing that the balance of reasons favors coercion is not
sufficient. Coercion must be justified on grounds no one could reasonably reject
(Claim V). Justification is conclusive when the balance of reasons tilts so strongly
in favor of coercion that one would be unreasonable to think that the balance of
reasons favors not coercing.10 The third thesis is the application to states. The
rule that coercion is permissible only if conclusively justified applies to govern-
ment as it does to individuals (Claim VI), and all government actions are coer-
cive, because even laws that are not directly coercive rely on the state’s power
of taxation. Therefore states cannot legitimately act at all, except for reasons all
fully rational moral agents must accept (Claims VII and VIII), a principle Gaus
refers to as the ‘minimal principle of neutrality’.11 State action is justified only
if not reasonably rejectable; if the cases for and against action are inconclusive,
we default to inaction.12
Now, with enough philosophical confidence about what fully rational and
moral individuals would accept, the demand for conclusive justification is easily
met. If people were fully rational, one might think, surely they would not smoke,
but would support public funding for art galleries.13 If we draw the boundar-
ies of the reasonable so narrowly, the minimal neutrality principle will not rule
out much state action. Yet liberals such as Nagel, Rawls, and Gaus are strongly
committed to the view that there are for many moral questions significant obsta-
cles to understanding and reasonable agreement, that is, ‘burdens of judgment’.
Furthermore, even if in an ideal speech situation unrestricted by pressures of
time, all fully rational moral agents would eventually arrive at a particular view, it
is not ­necessarily the case that the fully rational and moral members of a particu-
lar society will all accept this view. Gaus thus adds a further principle of ‘respect
for people’s deliberations’ (Claim IX), which raises the bar for government action
by specifying that our standard of conclusive justification is unanimous accept-
ability of fully rational and moral, but otherwise real citizens, who have not given
up their day jobs for full-time inquiry and deliberation.14

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Other liberals have reasoned their way to this or similar conclusions, and then
looked for a way out. ‘It would be an impossibly restrictive condition on politi-
cal power’, Thomas Nagel wrote, ‘to say that its exercise may be justified only
by appeal to premises that others could not reasonably reject.’15 Requiring that
state actions be reasonably non-rejectable would give a veto over state action
to anyone with a reasonable difference of factual beliefs or a reasonable differ-
ence in the ranking of accepted values. Nagel’s solution (and Rawls’s) was to
claim that it is sufficient that the basic moral grounds for state action be reason-
ably non-rejectable, even if the precise weights attached to these reasons and the
details of the factual context are a matter of reasonable disagreement.16 Without
an independent rationale, however, it will appear unprincipled to water down
the ­criterion of public justifiability, simply in order to arrive at a non-libertarian
result. According to Gaus, many defenses of liberal neutrality tailor their concep-
tion of public justification so as to justify contemporary ‘liberal-like’ states. ‘The
task of political philosophy is not to legitimize current political regimes, but to
examine the conditions under which political coercion can be justified.’17
Even though he embraces the standard of conclusive justifiability, Gaus does
not conclude that only a minimal, merely protective state is legitimate. The bare
idea of reasonable rejectability is ambiguous, as soon as we allow for there to be
more than one alternate policy. Are we requiring that state action P1 be reasonably
non-rejectable versus P0, the option of doing nothing, or versus all other possible
actions P2, P3 . . .? If reasonable people agree P0 is worse than P1 or P2, it would
be irrational to conclude from the reasonable rejectability of P1 in favor of P2 that
we must settle for P0.18 The obvious solution is to look for a ­reasonable procedure
for choosing among the actions unanimously reasonably preferred to inaction,
a procedure such as democratic choice. In other words, some of our reasonable
disagreements about policy may be ‘nested’19 by a reasonable consensus on the
preferability of having some common policy, as opposed to leaving individuals
free to decide for themselves, a claim Joseph Chan refers to as the argument from
‘higher-order unanimity’.20 This condition of higher-order unanimity is Gaus’s
fourth thesis. Our disagreements about the morality of nuclear deterrence and the
death penalty are just as ultimate and personal as our disagreements over abor-
tion, Nagel recognized, but the former disputes do not involve matters of individ-
ual conduct the state may or may not regulate.21 There is reasonable agreement
on the need for collective punishment and defense, but (deep) disagreement about
whether to use certain means in the execution of these agreed-upon ends. The
inconclusiveness of public reason about nuclear weapons and the death ­penalty is
nested by the conclusive case for having a common policy, as against the alterna-
tive of private militias (some nuclear equipped) and private police (some applying
the death penalty).
Nagel was uncertain whether egalitarian economic policies could be justified
in this way, because it did not seem unreasonable to reject taxation for redistri-
bution, in the same way that it seems unreasonable to reject having a common

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military policy.22 It is unreasonable to reject the idea of having some system

of enforced property rights, however, and if we consider welfare schemes and
estate taxes to be simply a part of a more egalitarian system of property rights,
‘redistributive’ policies would be legitimate if chosen democratically. After all,
property is backed by state coercion – the threat of use of collective force should
some persons invade the property rights of others.23 With this additional ­premise
about nested inconclusiveness or higher-order unanimity, we arrive at liberal neu-
trality, Gaus’s Claim X: ‘Reasons that presuppose values, claims about the good
life, or about human perfection rarely if ever can justify coercion by the state.
Reasons that presuppose basic rules of justice can justify coercion by the state.’24
Gaus calls liberal neutrality a ‘radical and compelling’ principle, but it is not a
foundational principle; it is, rather, a summary of the conclusions one generally
reaches based on more basic considerations about the moral justification of coer-
cion. Although hostile to much state action conventionally considered legitimate,
this version of liberal neutrality is not libertarian in the ordinary sense, Gaus
concludes, since it permits redistribution.25
Before turning to the problems with the argument from higher-order unanim-
ity, I want to emphasize its importance by contrasting it with another, simpler
response to the redistribution objection. There is an important moral difference,
one might argue, between state action based on a controversial conception of the
good and state action based on a controversial conception of justice. People have
a personal interest in not having other people’s conception of the good imposed
on them, and to ignore this interest constitutes a form of disrespect and injury.
They do not have the same kind of interest around principles of the right, and it
would be a category mistake to say that if the state overrides someone’s concep-
tion of justice, it is thereby harming or insulting them. I may care greatly about
the conception of justice that the state adopts, but if the decision goes against my
view, this does not personally harm me, or unfairly burden my ability to pursue
my conception of the good life. My external preferences about what other people
should have to lead their lives have a different moral status than my internal
preferences about how to lead my own life. The state must respect the latter, as a
fundamental condition of respecting me as a person, but has no comparable duty
to respect the former.26
This argument is correct, I think, but also limited in its consequences. It is
indeed wrong for the state to impose a conception of the good life on me, a fully
autonomous adult. Even if I am wrong about what life is best for me to lead, it
is my life, and I have a right to make my own mistakes. One can make this anti-
paternalist argument, however, without any commitment to public justification. It
is simply true that autonomy comes first, one might argue, but also true that when
it comes to defining what counts as murder, for example, we must answer this
question as best we can based on the whole moral truth, without any bracketing of
reasons that are allegedly too controversial. The worry about redistribution never
gets off the ground, in this case, because one never assumes that all exercises of

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coercive political power must be reasonably non-rejectable. Without a commit-

ment to public justifiability, however, we accept that it is legitimate to determine
the scope of our duties to one another under the heading of justice by appealing to
controversial ethical or religious views.27 Of course, it is not legitimate to define
our rights and duties so as to promote adherence to a particular doctrine. The idea
is rather that we define our rights and duties based on the answers provided by a
particular doctrine about what aspects of persons merit respect, who counts as a
person, and other basic issues. Limits on abortion might be justified, for example,
on the grounds that the soul enters the fetus at conception. One can always reject
such limits on the grounds that the soul enters later, or that there is no soul, but
the principle of public reason permits another response, which is that whether
true or false, such reasonably rejectable claims about the soul are not legitimate
grounds for state coercion. Public reason has always been seen to be useful in
defeating limits on abortion.28 Such limits aim at what their proponents take to be
the public good, but they involve an exercise of coercive state power that alleg-
edly cannot be justified to the women in question. In contrast, anti-­paternalism by
itself is no help in opposing limits on abortion. If paternalism involves constraints
on liberty intended to benefit the person whose liberty is constrained, limits on
abortion are not paternalistic. The point is not to correct a mistake the woman
is making about what is good for her, and so to make her life go better by our
lights, but to protect the fetus (so the proponent of such limits will say).29 The
virtue of the demand for public justifiability, in this context, is that it does not
simply object to people imposing their conception of the good life on others, it
objects to imposition and coercion as such, when reasonably rejectable. Hence,
the problem with redistribution, and the importance of the argument from higher-
order unanimity.

3. The democratic escape clause

3.1. The aggregation problem
The demand for conclusive justification requires a default that obtains when
­justification is inconclusive.30 Yet this demand can be applied at different ­levels,
to different descriptions of the space of choices, yielding different default poli-
cies. The argument from ‘higher-order unanimity’ makes use of this fact. It
initially seems that redistribution is illegitimate because we apply the criterion
of conclusive justification to two choices separately: whether to tax for police
protection of property (conclusively ‘yes’) and whether to tax for redistribution
(inconclusive, hence ‘no’) (see Table 1).

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Table 1

Redistribution Police

P1 = progressive taxation and a P3 = laws versus theft,

welfare program (active/coercive) police to protect property (active/coercive)

P2 = flat taxation and no welfare P4 = no laws versus theft and

program (inactive/noncoercive) no police (inactive/noncoercive)

The three-option description aggregates these choices:

1. PL = [P1, P3] = enforcement of property rights plus equalizing redistribution.
2. PR = [P2, P3] = enforcement of property rights, no redistribution.
3. P0 = [P2, P4] = no enforcement of property rights, no redistribution.
PL and PR are inconclusively justified against each other, but each is conclusively
justified as opposed to P0. Hence PL (or PR) is legitimate if chosen democrati-
cally. When the requirement of conclusive justification is applied to the single
three-option choice, it yields a different result than it does when applied to the
two two-option choices separately.
Similar reasoning could justify restrictions on abortion, however. Disaggregated,
we face two choices: whether to have a law against abortion (inconclusive, hence
‘no’) and whether to have a law against murder (conclusively ‘yes’). Yet we could
consider prohibition of abortion to be an element of the prohibition of murder,
and so describe our options as a broad law against murder (that is, some abor-
tions are prohibited, along with ordinary murders), a narrow law against murder
(that is, no abortions are prohibited, only murders), and no law against murder.
‘No law’ is now the inactive or noncoercive baseline, but this anarchical default
is reasonably rejectable in favor of either the narrow or the broad murder law.
Applied to this description of the space of choices, the requirement of conclu-
sive justification permits some laws against abortion, so long as such laws are
chosen democratically from among the set of murder laws that are rationally
preferable to no law at all. Moreover, if we are allowed to aggregate policies to
this level, why not even further? Instead of demanding conclusive justification
for cul­tural and economic policies separately, we could apply the criterion to the
choice between a perfectionist state (that is, one that aims to improve people’s
lives for their own sakes, based on reasonably contestable ideals of a good life), a
non-perfectionist state, and no state at all. If the inactive or noncoercive baseline
is no state at all, then some fairly strong forms of perfectionism would be legiti-
mate, if chosen democratically.
The problem with the democratic escape clause for egalitarians therefore
seems to be that there are different ways to divide up policies, and so different
ways to specify the inactive or noncoercive baseline. When the demand for public
justifiability is applied at a disaggregated level to separate choices between action

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and inaction (zoomed in, as it were), the principle has libertarian consequences.
Conversely, it seems possible to legitimize a lot of very coercive state action by
‘zooming out’, and applying the unanimity criterion at a higher level of aggrega-
tion, to three-option cases in which the inactive baseline approaches the state of
nature. It will be tempting for egalitarian liberals to apply the criterion of higher-
order unanimity at a higher level of aggregation to permit redistribution, although
not so high as to permit paternalist perfectionism, but then at lower level to rule
out the prohibition of abortion. Yet this mode of reasoning is precisely the results-
oriented approach that Gaus rejects.
One way to avoid the charge of arbitrariness would be to adopt the rule of
maximum logically feasible disaggregation (that is, maximum feasible ‘zoom
in’). The rationale for this rule would be that the aggregation of policies allows
some coercion to slip through the cracks, so to speak, even if this coercion is
not conclusively justified. Yet there will be a point of maximum feasible dis­
aggregation, because the more we disaggregate policies, the greater the chance
that the justification of one policy will depend on the state of other policies.
In many cases, our ultimate object of concern is not the policy itself, but its
contribution to some other variable, and our concern is to get that variable past
some threshold. If this variable is also affected by other policies, there may be
a ­number of possible combinations of policies that would be justified, so that it
would be impossible to say, for a particular setting of a particular policy, whether
this policy was justified. For example, there is a lot of variation in the scope of
the property rights people can have. Jurisdictions can be more or less protective
of landowners, against the state’s power to expropriate private holdings for pub-
lic use without the owners’ consent. It is plausible to think that if we engaged in
more redistribution of income via the tax system, so that the distribution of wealth
was more equal, we would also be justified in having stricter protections of the
rights of property owners, and a more limited collective right of eminent domain.
Conversely, if we have little redistribution of income and a highly unequal distri-
bution of wealth, it might be appropriate to have weaker protections for property
owners. Similarly, the justice of a particular rate of progressive taxation might
depend upon whether we have low university tuition and an ordinary student loan
system or high tuition and an income-contingent loan-repayment scheme. With
high tuition and income-contingent loan repayment, a less progressive tax system
might be justified, because what we are ultimately concerned about is not the tax
and tuition policies themselves, but their joint effect on an underlying variable,
such as a measure of fair opportunity or the level of the social minimum. The
question of whether a particular level of taxation is conclusively justified could
not be answered without knowing what other policies are in effect. It is also
­possible that there are interaction effects between discrete, micro-level policies,
that is, that the causal effect of one policy varies depending what other policies
are in place. These two phenomena (threshold goals affected by multiple policies
and interaction effects between policies) force us to aggregate, and apply the

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c­ riterion of conclusive justification to packages of actions (that is, to ‘zoom out’),

but only to the level at which these packages can be independently evaluated.

3.2. The measurement problem

Suppose, now, that egalitarians are right that the maximal feasible disaggregation
is to the level of whole property systems PL, PR, or P0. Is it sufficient, for one of
these systems to be legitimate if chosen democratically, that it be unanimously
reasonably preferable to the inactive or noncoercive policy of having no property
system at all or must it be unanimously reasonably preferable to all less coercive
systems? If we want all coercion to be justified, libertarians will argue, we need
to show that a given system involves no excess coercion (no coercion that can
be reasonably rejected) not just that a given package of coercion is better than
none at all.31 Libertarians may concede that the protection of property involves
­coercion, and that this coercion cannot be assessed apart from considerations
about how it is distributed, but nonetheless insist that the preferred libertarian
system of property rights involves less coercion than does the egalitarian sys-
tem. That the egalitarian system of property rights is conclusively justified with
respect to a state of nature does not legitimize democratic choice of this system,
they will say, because it is not conclusively justified with respect to the libertar-
ian system, which must carry the day, as the less coercive, and hence the default
policy.
To meet this objection, egalitarians must assert that their ideal system of
­property rights (now including so-called ‘redistribution’) is no more active or
coercive than the libertarian system. The absence of redistribution simply involves
the state using its coercive powers to exclude citizens from different properties,
egalitarians have to argue; if the government is not forcibly redistributing some
part of your wealth, it is forcibly excluding others from that part of your wealth.
Egalitarians cannot admit that their proposed economic system is more coercive,
but claim that this does not matter. For our guiding assumption is that coercion
must be conclusively justified, that is, not reasonably rejectable. We are led, then,
to adopt an incremental version of the public justifiability principle. Conclusive
public justification is required for each increment of coercion, permitting demo-
cratic choice only between equally coercive policies unanimously reasonably
preferred to less coercive policies.
Aided by the rule of maximal feasible disaggregation, and generalized so as
to handle degrees of coerciveness, Gaus’s public justifiability principle is less
­vulnerable to the charge of arbitrary, results-driven application. We now have two
new sources of potential disagreement, however: about the level at which policies
can be assessed independently and about the degree of coerciveness of the poli-
cies involved. There is likely to be room for reasonable disagreement about both
issues. The question of whether one policy depends for its justification on the state
of another policy will often be controversial for the same ­reasons that the policies
themselves are controversial. Does the effect of one policy vary depending on

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whether another policy is in place? Is our moral concern, in this instance, with a
threshold variable affected by a number of possible policy ­choices? Reasonable
people will often disagree about such matters.
The question of how to rank policies in terms of their coerciveness is also
likely to be controversial. For example, opponents of abortion will argue that the
absence of a law against abortion does not amount to collective inaction. In the
context of ordinary laws against assault, permission of abortion involves the state
in coercing those who would come to the defense of the unborn.32 Similarly, in a
situation in which husbands are allowed to beat their wives, laws against public
assault constrain anyone who wants to come to the defense of a woman suffering
domestic abuse. The point is that for the state not to have one rule may lead it to
do more things than it would otherwise have done under another rule. Conversely,
although having one law is obviously more coercive that having no laws at all,
as soon as we have some laws, the addition of a new law may not mean that the
state is coercing more, but just differently. It is not obvious what the noncoercive
baseline is, in the case of the state, because the state is in the business of setting
and enforcing general rules.
There may be good reasons for thinking that the appropriate baseline is
­anarchy in the case of property and not in the case of abortion, but these reasons
will involve qualitative moral judgments about the opportunities denied or made
available in each case.33 We cannot simply count the number of laws or forbidden
actions in order to assess the level of coercion associated with a particular policy,
for the same reasons that we cannot arrange our basic liberties so as to maximize
liberty tout court. We should not say that there is less coercion in a society with
no traffic lights and no freedom of conscience than in a society with freedom of
conscience and heavily regulated traffic, despite the greater number of discrete
acts of interference in the latter case.34 To figure out what the appropriate baseline
is, for the purposes of applying the requirement of conclusive justification, we
need to assess the value of the liberties or opportunities that laws deny people, or
create. Such questions will often be the subject of reasonable disagreement.
Given the likelihood of reasonable disagreement about the appropriate level
of aggregation and best measurement of coercion, it may seem that we are back
to our starting point – the fear that a commitment to public justification would
force us to accept a minimal state. If it is not unreasonable to think that the
egalitarian property system involves more coercion, or to think that police protec-
tion of property can be assessed independently of taxation for redistribution, will
the reasonable objections of libertarians not block state action aimed at securing
egalitarian social justice? We can collectively decide between equally coercive
policies, but any reasonable objection to a more coercive policy is decisive. This
rule would seem to place tremendous weight on the views of the most libertarian
of reasonable citizens. The more fine-grained one’s measurement of degrees of
coerciveness, the closer this barely reasonable libertarian comes to being a dicta-
tor! Is this a reductio of the idea of public justification?

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In fact, I do not think this follows, because we have no reason to suppose that
everyone must adopt the barely reasonable libertarian’s judgment about what the
appropriate default should be. Suppose I believe that I am entitled to vote for
the left or egalitarian system of property rights on grounds of the argument from
higher-order unanimity. Your view that PL is more coercive than PR is a reasonable
objection to PL as opposed to PR. But I already conceded that you had reasonable
objections to PL. You do not have a reasonable objection to my supporting PL over
P0, because you concede that were these the only two options, PL would be justi-
fied. I am simply supporting what I reasonably take to be the best of the options
that are conclusively justified as compared to what I take to be the less coercive
option, relative to what I take to be the maximum level of feasible disaggrega-
tion. This, of course, is what you object to; you think that I am mistaken about
the measurement or aggregation issues, that I have the wrong default, and that I
should therefore be supporting PR as the not conclusively defeated baseline. The
problem is that our situations are symmetrical; I too have a reasonable objection
to your judgment about what the noncoercive default is. If I were not permitted
to rely upon my own reasonably contestable views about the correct level of
aggregation and the correct measurement of coercion, I would have no default
for cases of inconclusive justification. For the identification of a default depends
upon resolution of the problems of aggregation and measurement. Reasonable
disagreement about aggregation and measurement cannot block state action,
because the default that obtains when action is not conclusively justified can only
be determined by deciding which policies can be evaluated independently and by
assessing the coerciveness of these different policies. One could try to make the
case for a default default, so to speak – a default baseline for situations in which
there is reasonable disagreement about what the noncoercive baseline should be.
Yet I cannot see what basis there would be for making such a choice, since any
notion of the least coercive default will simply beg the question.
The conclusion we have reached is that the democratic escape clause is salvage­
able, and can be used by egalitarians to defend ‘redistribution’ if they are pre-
pared to defend the necessary claims about aggregation and measurement. It is
no longer so clear that Gaus’s argument succeeds in deriving liberal neutrality;
there is a gap that needs to be filled between Claims IX and X. More importantly,
however, I think that the problem of the noncoercive baseline makes the underly-
ing demand for conclusive justification somewhat puzzling. I am obliged to defer
to any reasonable objection to coercion, but only relative to my own resolution
of the aggregation and measurement problems, which will often be reasonably
contestable. Yet the reason coercion is supposed to be bad, other things being
equal, is that it involves other people substituting their judgment for mine about
what it is I should do with myself. When coercion is not reasonably rejectable,
although I am still not doing what I want, the coercion is supposed to be justified
from my own perspective. The idea behind this demand is Kantian. To treat others
as free and equal moral persons, we must only act coercively in ways that they

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themselves would endorse, if they were fully reasonable and were presented with
the relevant arguments. For any coercive law, it must be the case that the reasons
of those coerced endorse the coercion, even if some such persons will unrea-
sonably reject this coercion. When a law is conclusively justified, in this way,
all fully rational moral persons are be able to view it as self-legislated.35 When
there is reasonable disagreement about aggregation and measurement, however,
we ­ cannot avoid some substitution of judgment, whatever we do. Reasonable
disagreement about the baseline from which we demand that deviations be con-
clusively justified implies that there will be reasonable objections to coercion,
no matter what we do – or rather, there will be reasonable objections to what is
reasonably taken to be coercion.
So be it, one might say; what matters in terms of my political conduct is that
the coercion I support actually be publicly justified, not that everyone think it
publicly justified. Even if I am justified in supporting a particular law because
it was chosen democratically from what I reasonably take to be the appropriate
set of options (the set of all equally coercive laws conclusively justified relative
to all less coercive laws), there is a question about whether others are obligated
to obey the law, if they reasonably endorse a different baseline, that is, if they
­reasonably take the law not to have been conclusively justified as against what
they reasonably take to be a less coercive alternative. Is conclusive justification
just a criterion for one to have the right to coerce or is it also a criterion for ­having
an obligation to obey? If the demand for public justification is a criterion of
legitimacy, then the problem of reasonable disagreement about the noncoercive
baseline threatens the stability of liberal regimes.
Perhaps the demand for conclusive justification is still coherent, at least as a
principle governing the right to coerce, if not the obligation to obey. Yet these
difficulties suggest to me that we should reconsider the underlying idea that coer-
cion stands in need of conclusive justification.

4. Three asymmetries
We can distinguish three asymmetries between action and inaction that could
be built into a principle of public justification, each of which will yield a differ-
ent presumption against state action. To keep these three presumptions distinct,
it will be helpful to categorize reasons according to whether they are public or
nonpublic and for or against action (see Table 2).
Someone who does not accept a principle of public justifiability will argue that
the state should act if and only if 1 + 3 > 2 + 4. In contrast, a believer in public
justification will limit us to considering only boxes 1 and 2, or to considering
them first. The most obvious possible asymmetry is a heightened standard of
justification. Is our criterion that of the balance of reasons in boxes 1 and 2,
or must 1 outweigh 2 according to some more demanding standard? A second
possible asymmetry would exist if there was always something in box 2, while

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Table 2  Public and nonpublic reasons for and against action

For action/coercion Against action/coercion

Public 1 2
Nonpublic 3 4

other boxes might be empty. Is there always some public reason against engag-
ing in coercion, even if a defeasible reason? I will refer to this asymmetry as the
prima facie wrongness of coercion. A third possible asymmetry would arise if
we consider public justifiability merely a necessary and not a sufficient condi-
tion for state action, that is, if public justifiability makes state action permissible,
but not mandatory. If 1 outweighs 2, then we decide based on the balance of
reasons 1 + 3 versus 2 + 4, which means that we will not act if 4 outweighs 3 by
more than 1 outweighs 2; a nonpublic case against action can outweigh a public
case for action. However, if 1 does not outweigh 2, then we cannot act even if
1 + 3 > 2 + 4; a positive nonpublic case (3 > 4) cannot tilt the scale in favor of
action if the public reasons are not themselves in favor of action (1 < 2). In this
version of the public justifiability principle, nonpublic reasons can block the case
for state action, yielding the asymmetry that I will refer to as the legitimacy of
nonpublic reasons for state inaction.

4.1. The prima facie wrongness of coercion

Gaus’s argument begins with a presumption against coercion:
(I) (a) It is prima facie morally wrong for Alf to coerce Betty, or to employ force against
her. (b) With sufficient justification, the use of coercion or force by Alf against Betty
may be morally justified.36

To clarify the nature of this presumption, I want to distinguish prima facie from
pro tanto reasons. In Susan Hurley’s terminology, a prima facie reason applies
provisionally, given incomplete understanding of the situation, but on closer
inspection may have ‘no residual reason-giving force’.37 In contrast, pro tanto
reasons do apply in a given situation, given full knowledge, but may not be deter-
minative, because other pro tanto reasons may also apply. While qualifying a
­reason as prima facie indicates that it probably, but not certainly applies, qualify-
ing a reason as pro tanto means that it applies, but may be outweighed or over-
ridden by other reasons when we make our all-things-considered judgment about
what to do.
If Claim I asserted that coercion was prima facie bad, in Hurley’s sense, it
would mean that coercion is usually wrong, but not always, and hence that if
one has to decide what to do without full knowledge, one ought not to coerce. A
prima facie reason, in this sense, would suggest that our presumption against state

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action is a social decision rule that we agree to adopt in view of the consequences
it will have (as a device for regulating our social interactions), a rule involving
a default position, a burden of proof, and a heightened standard of proof for
deviating from the default. The model would be the legal presumption of inno-
cence. If it asserted an institutional presumption, Claim I would not be plausible,
as a ­ general rule governing coercion no matter what the coercing agent. At an
individual level, the presumption against coercion is plausible because the state
protects citizens from arbitrary interference and domination. If the state does not
protect people, however, no other agency will. If Claim I were intended to defend
an institutional, consequentially justified presumption, rather than the existence
of a pro tanto reason, there would be a big gap between Claim V (that Alf ought
not to coerce Betty unless he has impartial reasons justifying the coercion) and
Claim VI (that Claim V ‘applies to governments and their agents’). Claim I is not,
however, intended to assert an institutional, consequentially justified presump-
tion. Claim I asserts only that in the absence of adequate justification, and other
things being equal, the use of coercion is morally wrong, not that it is desirable
for us to consider coercive acts wrong unless they can be shown to be right
according to some heightened burden of proof. In other words, Claim I asserts
that coercion is pro tanto morally wrong. The presumption that results is not a
social decision rule we agree to adopt in view of its consequences, but a convic-
tion about the moral reasons that apply to each instance: the conviction that there
is always something bad about (hence a reason against) coercion.
Is this true? Suppose we define coercion descriptively as ‘an intentional action,
designed to replace [one person’s] chosen option with the choice of another’.38
Is it always bad, in one respect, if I seek to replace your judgment about what
you should do? No. If you are hell-bent on murder, I do not think it bad, in any
respect, that I should seek to replace your judgment about what to do with my
own. If we adopted Gaus’s view, we would have to be prepared to say that laws
against murder, assault, and rape are only justified because the standing presump-
tion against coercion is successfully rebutted. Yet our belief that such laws are
legitimate does not seem to be based on an ‘on-balance’ judgment. We do not
weigh the benefit of being safe from murder and rape against the cost of losing
one’s freedom to murder and rape; we do not count frustrated desires to murder
and rape as having any value.39
Suppose, for example, that Alf aims to murder Betty, but can be deterred by a
threat from Charlie. However, if Alf does not kill Betty, Debra will, regardless of
what Charlie does. Now consider Charlie’s choice of whether to coerce Alf. If he
decides not to coerce Alf, Alf kills Betty. If Charlie decides to coerce Alf, Debra
kills Betty. In both cases, Betty is dead, but in the latter case, additionally, there is
the fact that Charlie coerces Alf. The two alternatives are equal, but for the extra
coercion due to Charlie’s coercing Alf. If force and coercion are bad, other things
being equal, and since things are otherwise equal here, it seems that Charlie must
desist from coercing Alf. But this conclusion does not seem right. Charlie’s coer-

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cion in this case is not bad, despite the fact that it accomplishes nothing. Better
that someone be trying to defend Betty, even if this defense involves unsuccessful
coercion.
I conclude that coercion is not in itself bad, irrespective of what the object or
content of the coercion is. Now, we could define a subset of cases of coercion
in which the coercion is in at least one respect morally objectionable. But not
all state action will count as coercive, on this partially moralized conception of
coercion. Unless all coercion in the descriptive sense has something morally bad
about it, it will not be the case that all state action has something morally bad
about it, because it is only true that all state action is coercive on the descriptive,
unmoralized account of coercion. The unmoralized conception of coercion could
be the basis for establishing a general presumption against the state threatening to
use force, but the fact that there is nothing pro tanto wrong with coercion in the
unmoralized sense means that such a presumption could only be an institutional,
consequentially justified presumption, and such a presumption is not justified in
the case of the state.

4.2. Nonpublic reasons for state inaction

Claim II seems to introduce a second asymmetry between action and inaction.
(II) One ought not engage in coercion or force if one does not have adequate moral
justification for it.40
The asymmetry lies in the absence of the parallel claim that one ought to engage
in coercion if one does have adequate moral justification. If Claim II sets out a
necessary condition, but not a sufficient condition for coercion, coercion would
be permissible, but not mandatory if adequately justified. On this interpretation,
Claim II would condemn coercion that lacks adequate moral justification, not
failures to act coercively where coercion does have adequate moral justification.
This appearance of asymmetry carries through to Claim VII:
(VII) Government actions are coercive. So [by earlier theses] government and its agents
ought not to act unless they have impartial justificatory reasons.41
State action must be conclusively justified, but does conclusive justification
require state action? Offhand, it would seem that Gaus must be committed to
the view that a negative nonpublic case cannot trump a conclusively positive
public case. Socrates’ view that nonenforcement of contracts would discourage
materialism and so improve the quality of people’s souls42 ought not be able to
trump a conclusive public case for contract law. If our only principle were that
government must not act if it lacks a suitably public justification, we would have
no legitimate complaint, in such a case, as the government would not have not
acted. In his most recent work, however, Gaus argues that it is legitimate for
reasons against coercion to be nonpublic because we often exempt people from
coercive laws on grounds of their religious views.43 He argues against what he
calls ‘the error of symmetry’:

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Many have held that reasons for supporting a proposal, and reasons for objecting to it,
are subject to the same requirements. If justifying a law requires that we give others a
reason they accept, then to reject a justification must also require providing a reason
others accept. We will show that this cannot be the case. There is a fundamental asym-
metry between reasons to justify to another a law and reasons to reject that law.44

If fully rational and moral agents can be nonreligious, then publicly justified
laws will have to have a secular rationale, but laws can be defeated by reason-
able religious convictions without any secular backing, Gaus claims.45 However,
the idea of ‘rejection’ is ambiguous. Are we talking about rejecting the law as a
whole, so that it applies to no one, or are we talking about rejecting the applica-
tion of the law to a dissenting subgroup? Exemptions for religious minorities are
not justified by the religious views themselves, but by the fact that the people in
question sincerely hold these views, and therefore take themselves to be under an
overriding obligation not to comply with the laws. The reason that justifies the
exemption is respect for religious liberty.46 I will therefore assume that Claims II
and VII hold that government ought to act if and only if it has adequate impartial
reasons, which avoids the asymmetry implicit in requiring only that the case for
state action be made in terms of public reasons.

4.3. The standard of justification

The reformulated principle still contains an asymmetry, however, since public
justification is understood to be conclusive rather than merely plausible public
justification. Even if (by Claim I) there is something defeasibly wrong with each
case of coercion, we still need to know why defeating this reason should require
not just a judgment about where the balance of public reasons lies, but rather such
an overwhelming preponderance of public reasons as to make the case for coer-
cion not reasonably rejectable. State action may be coercive, but state action can
also prevent coercion, and the claim that there is something wrong with coercion
ceteris paribus does not establish that it is worse to coerce than to fail to prevent
coercion. The fact that box 2 (from Table 2) is never empty does not establish
that coercion should only be permissible if the public case for it meets some
heightened standard of justification.
The step from the pro tanto reason against coercion to the demand for con-
clusive justification depends on the requirement of a special kind of impartial or
multi-perspectival justification. Coercion requires moral justification (Claim II),
but only impartial reasons can justify coercion (Claim III), and to count as impar-
tial, reasons must not be rejectable by fully rational moral agents:
(IV) A reason R is a moral, impartial reason justifying Q only if all fully rational moral
agents coerced by Q would acknowledge R, when presented with it, as a justification
of Q-ing.47

I may be convinced that a particular view is true, and provides a reason for
­coercion, but if ‘some other fully rational moral agents are simply incapable

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of seeing this reason as a justification’, it is not permissible to coerce for this

­reason.48 Since this demand rests on the Kantian ideal of respect for persons as
free and equal moral agents, let us consider how one might derive a demand for
public justifiability from Kant’s moral philosophy.
The core idea of Kantian universalization is that some rules of conduct cannot
be rationally endorsed by all, as general rules of conduct. That all should break
promises when useful is not conceivable, as a universal law, because if everyone
acted on this maxim there would be no practice of making promises and trust-
ing people to keep their promises. That all should ignore the cries of others in
need is conceivable, as a universal law, but because we necessarily will our own
­happiness we cannot will that this hard-hearted maxim should be a universal law.
Extending this idea to yield a principle of public reason requires that we spell out
what we mean by the claim that certain laws cannot be rationally endorsed by
all. Consider, for example, the maxim that abortion should be prohibited because
fetuses have souls from conception or the maxim that killing animals for food
should be prohibited because animals are sentient creatures that feel fear and pain.
Such maxims pass the contradiction-in-conception test, because their universal
adoption would not be self-defeating. The contradiction-in-willing test is more
promising, as a source of a doctrine of public reason, because we want to say
that not everyone can reasonably endorse these maxims, even though there would
be no inconsistency if they did. Still, if we assume that the views in question are
not unreasonable, anyone could come to endorse these maxims, without being
unreasonable, even if they would not be unreasonable to reject them. So there is
neither a contradiction in imagining the universal adoption of these maxims, nor
an impossibility for any particular rational agent to endorse them. The problem is
that fully rational moral agents will never, all at the same time, endorse prohibi-
tions on abortion or the eating of animals. When we say that a fully rational moral
agent is incapable of endorsing a law that is based on a controversial, but reason-
able religious or philosophical view, what we mean is that the person in question
could not endorse the law without giving up the philosophical view that they
not unreasonably hold, and that it is wrong for legislation to be based on such
grounds. Yet this wrong is not revealed by pointing to any formal impossibility of
collective willing, or any mechanical application of Categorical Imperative tests.
The impossibility of collective willing we see in the cases of lying and refusing
to come to the aid of others is of a different kind than that involved in the case of
maxims involving reasonably contestable moral views.
If we turn to the other formulas Kant offers for the Categorical Imperative,
we can plausibly defend an ideal of public reason. The autonomy formulation
directs us to think of the will of every rational being as the legislative source of
the moral law. The Kingdom of Ends formula directs us (in Robert Johnson’s
words) to ‘act only on principles which could earn acceptance by a community of
fully rational agents each of whom have an equal share in legislating these prin-
ciples for their community’.49 It is not obvious from Kant’s formulas, however,

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how far this exclusion of controversial maxims must extend. We are demanding
reasoned acceptability from the perspectives of all fully rational moral agents,
but what exactly are these perspectives? One view would be that for each such
agent, given everything the agent currently believes, the agent would endorse the
law if presented with the argument in its favor. In this case, any disagreement
of fully rational moral agents would bring into play the Kantian side constraint
on coercive action, even if the disagreement is just over a factual question or a
conflicting judgment about the weighting of commonly accepted values. Our
standard for the exclusion of reasons would be the absence of unanimity on the
part of all fully rational and moral agents who have here and now been presented
with the arguments for the law. This view would yield a very narrow set of legiti-
mate public reasons. Alternately, we might think that our standard for exclusion
should be the impossibility of rational unanimity in the ideal speech situation. For
many differences of empirical beliefs, and many differences in judgment about
the weight of competing values, it is plausible to think that all could endorse
the same view, at the same time, if we all had unlimited time for reflection and
deliberation and data gathering, even if we now disagree because we live in an
actual society, not the ideal speech situation. This view would yield a broader set
of legitimate public reasons.
Which position is correct? I do not think that there is a technical way of resolv-
ing this question by appeal to a formal Kantian criterion. Everything comes down
to an interpretation of the demand that it be possible that all rational agents should
at the same time endorse the reasons supporting the law in question. None of
the formulas of the Categorical Imperative provides a simple way to specify the
scope of perspectives across which reasonable disagreement triggers exclusion.
Everything depends on the interpretation one gives to the modal notion of ‘possi­
bility’ in the idea of reasonable acceptability. Fleshing out a principle of public
reason will therefore require substantive argument about what respect for persons
requires, based on particular cases of proposed coercive collective action.
Even if we resolve this question about the scope of excluded nonpublic ­reasons,
I do not think we will arrive at the demand that coercive state action be conclu-
sively justified. Suppose we all agree that passing a particular law will mean
more state coercion. State action can also prevent coercion on the part of others. I
may reasonably think that the balance of public reasons supports the law, because
the law would prevent a lot of coercion, while you may reasonably think that the
balance of public reasons inclines in the opposite direction, because you disagree
about the extent of the coercion the law would prevent. Why should your view of
the matter trump mine? The claim that there is something wrong with coercion
other things being equal does not establish that it is worse to coerce than to fail
to prevent coercion. Respect for persons as rational and moral agents figures on
both sides of the equation. We may face a choice between acting coercively in a
way that can be reasonably rejected and failing to act coercively, which can also
be reasonably rejected, precisely because other people’s rational nature makes

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a claim upon us to protect them from coercion. It is not obvious to me that the
Kantian idea of respect for persons as ends requires that we do nothing, just
because the case for protection is not so overwhelming as to make someone who
would deny it unreasonable.
One reason for thinking that there is something inherently wrong with incon-
clusively justified state action would be that the inconclusiveness of public
­reasons involves reasonable disagreement about the ranking of values, and that
state action based upon reasonably contestable rankings of values involves ille-
gitimate paternalism. In his defense of liberal neutrality, for example, Daniel
Weinstock conceded to Thomas Hurka that any principle that forbade state
­advertising campaigns encouraging exercise or discouraging smoking would be
unacceptable. Since no reasonable person prefers cancer to health, and the empiri­
cal evidence about the effects of smoking and exercise on health is conclusive,
measures promoting exercise and discouraging smoking are publicly justifiable.50
In response, Gaus denies that reasonably contestable rankings or weightings of
public values constitute legitimate public reasons. ‘Liberal neutrality requires
justification by impartial reasons, and reasons that presuppose a controversial
value ranking do not qualify.’ It may be reasonably incontestable that ill health is
bad and that smoking causes ill health, but there is reasonable disagreement about
the importance of the pleasures of smoking compared to the risk of disease and
death. Weinstock is wrong to conclude, therefore, that it is legitimate for the state
to discourage smoking, based on the view that the harms of smoking outweigh
its pleasures.51 Any such measures still employ coercion, at least to raise taxes.
‘Given that rational people weigh the relative values of pleasure and safety dif-
ferently, coercive acts that can only be justified on the grounds that the pleasure
does not outweigh the risk to health fail to provide a neutral case.’52
This example argues against paternalistic state action, however, not inconclu-
sively justified state action in general. It is objectionable for the state to use
its power to try to discourage fully autonomous adults from smoking, if such a
policy can only be justified in the circumstances by the view that the ill health
from smoking is worse than the pleasure of smoking. Suppose, however, that the
issue at stake is about the effects of secondhand smoke on nonsmokers. On one
side of the question is the public interest in protecting people from being harmed
by the actions of others. On the other side of the question is the legitimate interest
in people being able to lead their lives without constant public surveillance and
intervention for myriad, sometimes minor costs that our choices may impose on
others.53 If state action requires impartial justificatory reasons, and controversial
rankings of public reasons do not count as impartial, then the government would
be required to impose the least expansive restrictions on smoking that are conclu-
sively justified, as against the alternative of no restrictions at all. I do not see the
rationale for this asymmetrical treatment of reasonable objections to the presence
or absence of coercion. In neither case is the majority substituting its judgment
for the individual’s about a matter properly within only the individual’s authority.

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No matter what decision we make, someone’s judgment about the right ranking
of values is being disregarded, but not for the sake of that person’s well-being.
The same is true, I think, in cases in which state action is inconclusive because
of reasonable disagreement about the facts. Suppose there is reasonable disagree-
ment about whether global warming is happening because of human intervention
in the carbon cycle and about how bad its effects will be, and that the government
takes action to stop global warming. Those coerced by the government’s environ-
mental policy (forced to pay more in tax on gasoline, for example) can complain
that they have been coerced without conclusive justification. Yet in the absence
of such policies, people could complain that they are being harmed by the carbon
emissions of others, without consent on their part. Suppose we agree that the state
is acting more coercively by taxing gasoline than it would be simply by enforcing
protections of persons and property that do not allow people to defend themselves
against the harmful carbon emissions of others. Nonetheless, the considerations
that support anti-global warming policy are valid public reasons. There is no
paternalism involved. There are reasonable objections on both sides. In fact, there
is coercion or something very close to coercion (harming without consent) on
both sides of the equation. The demand for conclusive justification of coercion
implies that it is worse to coerce than to prevent coercion, or harm, even for the
state, but the rationale for this asymmetry is not clear.
I conclude that there is no moral objection that applies generally to all cases
of publicly, but inconclusively justified state action. There is a valid objection
to paternalism, at least of certain kinds. However, principles of public reason
exclude nonpublic reasons from the justification of state action across the board,
not just from the justification of paternalistic policies.

5. Conclusion
My goal in this article has been to extricate the ideal of public justification
from its framing by a set of presumptions against state action. What needs to be
­publicly justified, I think, are our collective decisions; there should be no default
that favors collective inaction. Without a default, we cannot demand conclusive
justification, that is, that our laws not be reasonably rejectable. Yet this makes
sense. The fact that a law depends for its justification on a reasonably rejectable
reason does not necessarily make it illegitimate. The moral problem arises only
when the basic, motivating moral considerations behind the law are reasonably
rejectable. It is a problem if some people reasonably feel that they could not
support the fundamental purposes that animate the community’s decision with-
out giving up the religious, philosophical, or ethical doctrine they reasonably
espouse. At a minimum, we can say that such decisions lack a kind of civility.
The need for public decisions to be publicly justifiable even where these deci-
sions are not objectionably paternalistic is rooted, at least in part, in the good of
civic friendship. A commitment to public reason is a condition of community

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under conditions of pluralism. The remaining question is whether we can say

that such decisions also involve disrespect for persons, even where no paternal-
ism is involved. I am not sure of the answer. The question is important, however,
because as Steven Wall has argued, it is doubtful that considerations of civility
or community must always take precedence over the first-order moral views that
citizens hold.54

notes
I received helpful comments and criticism on earlier drafts of this article from Margaret
Moore, one anonymous referee, and from the participants in a November 2007
Workshop on Public Reason held at the University of Arizona. I would particularly like
to thank Peter de Marneffe, for his critical response to the paper at that workshop, and
Jerry Gaus, who provided generous feedback and encouragement at a number of stages.

  1. Jeremy Waldron, ‘Theoretical Foundations of Liberalism’, Philosophical Quarterly

147 (1987): 128; Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and
Community in Liberal Constitutionalism (Oxford and New York: Clarendon Press
and Oxford University Press, 1991), p. 78.
  2. Thomas Nagel, ‘Moral Conflict and Political Legitimacy’, Philosophy and Public
Affairs 16 (1987): 223; John Rawls, Political Liberalism (New York: Columbia
University Press, 1996), pp. 139, 214; Charles Larmore, ‘The Moral Basis of
Political Liberalism’, Journal of Philosophy 12 (1999): 606–7; Jonathan Quong,
‘Disagreement, Asymmetry, and Liberal Legitimacy’, Politics, Philosophy and
Economics 3 (2005): 301.
  3. I will use terms such as ‘ideal of public justification’ and ‘principle of public reason’
interchangeably. Strictly speaking, the principle of public reason has a narrower
role in Rawls’s theory – that of helping determine the practical implications of
principles of justice already on hand. When citizens disagree about the implications
of principles, a common commitment to shared modes of reasoning nonetheless
reassures them that they are all indeed interpreting common principles, and not
arguing from comprehensive doctrines. As this reference to the exclusion of
comprehensive doctrines suggests, however, the first stage of Rawls’s theory is
framed by a demand for public justifiability which Rawls calls the ‘liberal principle
of legitimacy’. See Rawls, Political Liberalism, pp. xlvi, 136, 216. Whereas Rawls
justifies public reason by appeal to liberal legitimacy, I will refer to the latter
as itself being a principle of public reason, since it excludes reasons from the
justification of the exercise of political power without declaring them to be false
or logically irrelevant. In adopting this broad usage, I believe I follow Charles
Larmore, who says that ‘public reason is not one political value among others’,
but ‘envelops all the different elements that make up the ideal of constitutional
democracy’. See Charles Larmore, ‘Public Reason’, in The Cambridge Companion
to Rawls, edited by Samuel Richard Freeman (Cambridge: Cambridge University
Press, 2003).
  4. Nagel, ‘Moral Conflict and Political Legitimacy’, p. 229; compare Joseph Raz, The
Morality of Freedom (Oxford: Oxford University Press, 1986), p. 110 and Joseph

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Raz, ‘Facing Diversity: The Case of Epistemic Abstinence’, Philosophy and Public
Affairs 19 (1990): 37, 43.
  5. Simon Caney, ‘Liberal Legitimacy, Reasonable Disagreement and Justice’, in
Pluralism and Liberal Neutrality, edited by Richard Bellamy and Martin Hollis
(Ilford: Frank Cass Publishers, 1999), p. 29; Joseph Chan, ‘Legitimacy, Unanimity,
and Perfectionism’, Philosophy and Public Affairs 1 (2000): 5–42; Quong,
‘Disagreement, Asymmetry, and Liberal Legitimacy’, p. 303.
  6. Gerald F. Gaus, ‘Liberal Neutrality: A Compelling and Radical Principle’, in
Perfectionism and Neutrality: Essays in Liberal Theory, edited by Stephen Wall and
George Klosko (Lanham, MD: Rowman and Littlefield, 2003), p. 138.
  7. Richard Arneson, ‘Liberal Neutrality on the Good: An Autopsy’, in Perfectionism
and Neutrality: Essays in Liberal Theory, edited by Stephen Wall and George
Klosko (Lanham, MD: Rowman and Littlefield, 2003).
  8. My summary of Gaus’s argument draws heavily on Gaus’s ‘Liberal Neutrality’,
which presents the public justifiability principle as a ‘consensus’ rather than a
‘convergence’ theory (or is at least ambiguous between the two). I have since come
to realize that Gaus is in fact committed to a convergence view. The difference
between these two approaches concerns the requirement of reasonable acceptability
of coercion. The ‘consensus’ interpretation is that all reasonable, fully rational, and
moral (or otherwise) qualified points of view must accept a particular set of reasons
that is sufficient to justify some coercive law. The ‘convergence’ position is that
all reasonable or qualified points of view must accept some set of reasons that is
sufficient to justify the law, but not necessarily the same set. The consensus view
is dominant; see, for example, Rawls, Political Liberalism and David M. Estlund,
‘The Insularity of the Reasonable: Why Political Liberalism Must Admit the Truth’,
Ethics 108 (1998): 252–75. For the distinction itself, see Fred D’Agostino, Free
Public Reason: Making It Up as We Go (Oxford: Oxford University Press, 1996),
p. 30 and Nagel, ‘Moral Conflict and Political Legitimacy’, p. 218. Gaus explains
what he calls ‘the error of consensus’ in Gerald F. Gaus and Kevin Vallier, ‘The
Roles of Religious Conviction in a Publicly Justified Polity: The Implications
of Convergence, Asymmetry and Political Institutions’, Philosophy and Social
Criticism 1–2 (2009): 56–62. What I call the ‘measurement’ and ‘aggregation’
problems apply to both versions, I believe, but some of the arguments in Section 4
may need to be reformulated.
  9. Gaus, ‘Liberal Neutrality’, p. 143. Similarly, Michael Blake argues that although
coercion is presumptively forbidden, we can justify it against this presumption by
demonstrating that the rule licensing the coercion is not one those coerced could
reasonably reject. See Michael Blake, ‘Distributive Justice, State Coercion, and
Autonomy’, Philosophy and Public Affairs 3 (2002): 274–5.
10. As Michael Blake puts it, we justify coercion by showing that the rule licensing the
coercion is one to which those coerced could not reasonably withhold their consent.
See Blake, ‘Distributive Justice, State Coercion, and Autonomy’, pp. 274–5.
11. Gaus, ‘Liberal Neutrality’, pp. 148–9.
12. ‘Insofar as any reason is rationally rejectable, the minimal principle of neutrality
[T8] deems that reason unacceptable as a justification of government action.
Government thus must be neutral with respect to citizens’ reasons that are rationally
rejectable by others.’ See ibid., p. 149.

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13. Gaus cites T.H. Green as an advocate of paternalism justified by the claim that
much paternalism would be accepted by fully rational moral persons. See ibid.
14. Ibid., pp. 151–3.
15. Nagel, ‘Moral Conflict and Political Legitimacy’, p. 231.
16. Thus, after recognizing that reasonable people can disagree over ‘levels of
public provision of education and health care, social security, defense policy,
environmental preservation, and a host of other things that liberal societies
determine by legislative action’, Nagel argued that in many of these areas citizens
can nonetheless appeal to a ‘common ground of justification’. People disagree on
many such issues due to differences ‘in judgment over the preponderant weight of
reasons bearing on an issue’, rather than (as with religious questions, for example)
due to ‘a bare confrontation between incompatible personal points of view’ or
‘a pure confrontation between personal moral convictions’. See ibid., pp. 232–3.
Jonathan Quong and Micah Schwartzmann have shown that Rawls’s political
liberalism is similarly open to reasonable disagreement about matters of justice.
See Micah Schwartzman, ‘The Completeness of Public Reason’, Politics,
Philosophy and Economics 2 (2004): 198–203; Quong, ‘Disagreement, Asymmetry,
and Liberal Legitimacy’, p. 316; compare John Rawls, ‘The Idea of Public Reason
Revisited’, in The Law of Peoples (Cambridge, MA: Harvard University Press,
1999), p. 169.
17. Gaus, ‘Liberal Neutrality’, p. 138, citing Daniel M. Weinstock, ‘Neutralizing
Perfection: Hurka on Liberal Neutrality’, Dialogue 38 (1999): 53; Thomas Hurka,
‘Indirect Perfectionism: Kymlicka on Liberal Neutrality’, Journal of Political
Philosophy 3 (1995): 49.
18. Gerald F. Gaus, Contemporary Theories of Liberalism (Thousand Oaks, CA: Sage,
2003), p. 217.
19. Gerald F. Gaus, Justificatory Liberalism: An Essay on Epistemology and Political
Theory (New York: Oxford University Press, 1996), pp. 180–2; Gaus, Contemporary
Theories of Liberalism, p. 216.
20. Chan, ‘Legitimacy, Unanimity, and Perfectionism’, p. 22.
21. Nagel, ‘Moral Conflict and Political Legitimacy’, p. 233; compare Caney, ‘Liberal
Legitimacy, Reasonable Disagreement and Justice’, p. 28.
22. Nagel, ‘Moral Conflict and Political Legitimacy’, p. 234.
23. Blake, ‘Distributive Justice, State Coercion, and Autonomy’, p. 277. Blake cites
Jeremy Waldron, The Right to Private Property (Oxford and New York: Clarendon
Press and Oxford University Press, 1988) as well as Shelley v. Kraemer, 334 US
1 (1948), the US Supreme Court case that found that enforcement of contracts
involved state action, and hence that constitutional demands for equal protection
ruled out enforcement of contracts involving racial restrictions.
24. Gaus, ‘Liberal Neutrality’, p. 153.
25. Ibid., p. 159.
26. Thanks to Will Kymlicka for pressing this objection.
27. See Steven Wall’s distinction between two kinds of perfectionism; Steven Wall,
Liberalism, Perfectionism and Restraint (Cambridge and New York: Cambridge
University Press, 1998), p. 12.
28. See, for example, Joshua Cohen, ‘Institutional Argument is Diminished by the
Limited Examination of the Issues of Principle’, Journal of Politics 1 (1991):

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221–5; Judith Jarvis Thomson, ‘Abortion: Whose Right?’ Boston Review 3 (1995),
cited by Rawls, Political Liberalism, p. lvi n. 31; and Jeffrey Reiman, ‘Abortion,
Natural Law, and Liberal Discourse: A Response to John Finnis’, in Natural Law
and Public Reason, edited by Robert P. George and Christopher Wolfe (Washington,
DC: Georgetown University Press, 2000).
29. One might argue that there is still the imposition of a conception of the good in
the case of abortion. Here, the ambiguity of the term ‘conception of the good’
becomes important. Above, we were thinking of a conception of what is the best life
for me. But if we think in terms of a conception of human flourishing in general,
or a comprehensive moral doctrine, then we could try to argue that in the case of
abortion, there is still the imposition of a conception of the good. But I think that
now the argument has shifted in a subtle way. The state is not imposing on me a
particular conception of what is good for me, it is defining the scope of my duty
not to harm others according to a contestable moral doctrine about who counts as a
person. Is this wrong? To answer ‘yes’, we need to appeal to the demand for public
justifiability. For the intuitions about the wrong of paternalism that were doing the
work above will no longer do the same work here.
30. Any heightened standard of justification, such as conclusiveness, must involve a
presumption against one of the options, because with a heightened standard, it will
be possible that both the cases for and against action fail. The only alternative would
be randomization; then we could say that even if we ended up adopting what would
otherwise be a reasonably rejectable policy, we did not base our decision on any
reasonably rejectable reason, because we did not use any reasons at all – we simply
flipped a coin. On randomization as a solution to the potential ‘incompleteness’
of public reason, see Andrew Williams, ‘The Alleged Incompleteness of Public
Reason’, Res Publica 2 (2000): 210–11. Randomization may seem a sensible option
for a series of one-off, local decisions, because in the long run, no one view wins all
the time. For an ongoing policy or general rule, however, it will seem unfair that we
randomize once, and the policy is set forever more. Periodic re-randomization, or
alternation of policies would solve this problem, but at the expense of confusion and
uncertainty of various kinds. How would randomization apply to the definition of
marriage, for example?
31. A comparison with Rawls’s difference principle may be helpful. To justify a given
level of inequality, it is not sufficient to show that that the least well off are better
off than they would be in a state of nature. To justify all of the inequality, we would
have to show that each extra bit of inequality helps, or at least does not harm, the
least well off.
32. ‘Will anyone argue that abortion should be left to private judgment, so that people
who judge it as homicide are entitled to use force to prevent their fellow citizens
engaging in it (just as they are entitled to use force to prevent infanticide or sexual
intercourse between adults and eight-year-old boys)?’ See John Finnis, ‘Abortion,
Natural Law, and Public Reason’, in Natural Law and Public Reason, edited by
Robert P. George and Christopher Wolfe (Washington, DC: Georgetown University
Press, 2000), p. 75.
33. I owe this point to Peter de Marneffe’s insightful comments on an earlier version of
this article.
34. Charles Taylor, ‘What’s Wrong with Negative Liberty’, in Philosophy and the

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Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press,

1985), p. 219; compare H.L.A. Hart, ‘Rawls on Liberty and Its Priority’, University
of Chicago Law Review 3 (1973): 534–55 and Ronald Dworkin, ‘What Rights Do
We Have?’ in Taking Rights Seriously (London: Duckworth, 1978).
35. The last part of this paragraph summarizes a personal communication from Gaus,
but for related argument, see Gerald F. Gaus, ‘On Justifying the Moral Rights of
the Moderns: A Case of Old Wine in New Bottles’, Social Philosophy and Policy 1
(2007): 91–3 and Gaus, Justificatory Liberalism, p. 151.
36. Gaus, ‘Liberal Neutrality’, p. 139.
37. Susan Hurley, Natural Reasons (Oxford: Oxford University Press, 1989), p. 133.
38. Blake, ‘Distributive Justice, State Coercion, and Autonomy’, p. 272.
39. I draw here on Alistair Macleod, ‘Freedom, Autonomy, and Coercion: A Note on
Bruce Landesman’s “Global Economic Inequality, Partiality, and Coercion”’, paper
presented at the AMINTAPHIL Conference on ‘Coercion, Justice, and Democracy’,
St Louis, MO, November 2006; Alistair Macleod, ‘Coercion, Justice, and
Democracy’, in Coercion and the State, edited by David Reidy and Walter Riker
(London: Springer Science and Business Media, 2008), p. 66.
40. Gaus, ‘Liberal Neutrality’, p. 141.
41. Ibid., p. 146.
42. Socrates, The Republic, 556b.
43. Gerald F. Gaus, ‘The Place of Religious Belief in Public Reason Liberalism’
(unpublished, 2007), pp. 18–19.
44. Gaus and Vallier, ‘The Roles of Religious Conviction in a Publicly Justified Polity’,
p. 52.
45. Ibid., p. 63.
46. Peter de Marneffe and Alyssa Bernstein made this point in discussion.
47. Gaus, ‘Liberal Neutrality’, p. 143.
48. Gaus, ‘Liberal Neutrality’, p. 149.
49. Edward N. Zalta (editor), ‘Kant’s Moral Philosophy’, The Stanford Encyclopedia of
Philosophy, spring 2004 edn. (Stanford, CA: Stanford University, 2004).
50. Weinstock, ‘Neutralizing Perfection’, p. 55; compare Chan, ‘Legitimacy, Unanimity,
and Perfectionism’, pp. 10–18.
51. Gaus, ‘Liberal Neutrality’.
52. Ibid., pp. 157–8.
53. Compare Seana Valentine Shiffrin, ‘Paternalism, Unconscionability Doctrine, and
Accommodation’, Philosophy and Public Affairs 3 (2000): 205–50.
54. Wall, Liberalism, Perfectionism and Restraint, pp. 80, 118.

Andrew Lister is Assistant Professor of Political Studies at Queen’s University, Canada.

His research focuses on questions related to pluralism, toleration, and public reason.

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