Noncompliance and the Demands of Public Reason

Abstract

Political liberals argue that democratic citizens have a duty of public reason to ensure that important laws are justified by reasons fellow citizens can accept given their own moral and philosophical beliefs.1 In any real-world democracy, many will fail to comply with this duty. Most people have never heard of public reason, and many who have heard of it reject it. This raises an important question about the demands of public reason: is there ever a duty to ensure that laws are justifiable to those who are not willing to reciprocate? Most political liberals answer “no”—the duty of public reason is owed only to those who are themselves willing to comply.2 This reflects a more general view that has wide currency in democratic thought: individuals ought to moderate their political activity to accommodate disagreement with others, but only when others are willing to reciprocate. Many think, for example, that individuals ought to seek middle-ground policy compromises, but only with those who are willing to compromise. The prevailing view among political liberals is that the duty of public reason is always conditional on reciprocal compliance in this way. As Andrew Lister asks, “How could it be reasonable to ask me not to count a reason I think true and relevant on the basis that you reject it, if you are not likewise willing to exercise restraint with respect to reasons that you think true but which I reject?”.3 My aim in this article is to answer this question and, in doing so, to rethink the demands of public reason in the face of noncompliance. I argue that there is a wide range of political contexts in which citizens have duties to comply with public reason for the sake of others regardless of whether they reciprocate. This helps lay foundations for a non-ideal theory of political liberalism that gives public reason a more inclusive and morally significant role in the practice of democratic politics. In Section I, I examine what I take to be the strongest argument for the prevailing view that public reason is always conditional on reciprocal compliance. The civic friendship argument grounds the duty of public reason in the valuable communal relation that citizens realize when they reciprocally comply for the sake of one another. Because unreciprocated compliance with public reason lacks mutuality, it undermines rather than promotes relational equality. When individuals bear the “moral cost” of excluding what they take to be true reasons without demanding reciprocation from others, they allow themselves to be treated as subordinates.4 In Section II, I argue that the civic friendship argument misses an important truth about relational inequality—that whether unreciprocated sacrifice generates subordination depends on background features of the relationship in question, including the motivations of the parties and the history of their relationship. I identify two general political contexts—one with background equality and the other with inequality—in which unreciprocated compliance with public reason promotes rather than undermines egalitarian relationships. When citizens are committed to maintaining a fair overall balance of cooperative sacrifice, unreciprocated compliance with public reason can display a valuable form of respect without subordinating compliers. And in contexts with background oppression, complying with public reason without demanding reciprocation can help repair political relationships to a footing of equality and restore bonds of trust. I illustrate the reparative value of public reason by examining the case of caste-based injustice in India. In ordinary political contexts, then, citizens can have duties to comply with public reason without demanding reciprocation. Acknowledging such duties, I argue in Sections III and IV, helps reconceptualize the role of public reason in non-ideal contexts. If the duty of public reason is always conditional on reciprocal compliance, it will have only a marginal political role in democracies characterized by substantial noncompliance and injustice. The view I defend gives public reason a broader and more inclusive role in promoting the ideal of an egalitarian community. This does not mean that political liberals must abandon the idea that civic friendship has special value. Rather, civic friendship is best understood as a relational ideal that citizens of pluralistic democracies should strive to realize in the long-run. Liberals have traditionally sought to justify liberal rights and institutions by appeal to a wider view of comprehensive moral or philosophical truth. Mill, for example, defends equal liberties by appeal to a theory of human flourishing that rests on an individualistic understanding of human nature.5 Political liberals believe that comprehensive views of human nature and the good of the sort to which Mill appeals cannot serve as a proper basis for the public justification of a liberal regime. This is because individuals reasoning freely and in good faith will inevitably disagree about such matters. This “fact of reasonable pluralism” ensures that no comprehensive doctrine can provide a mutually acceptable justification for liberal institutions.6 Why does it matter that citizens can accept the public justification of their political regime? Political liberals answer that the principle of public reason requires important laws7 to be justified by reasons that all reasonable citizens can accept given their own moral perspectives. Rawlsians identify the set of mutually acceptable public reasons in terms of a “family” of “political” conceptions of justice that affirm and give priority to basic liberal rights, opportunities, and distributive entitlements.8 Political conceptions are “freestanding” of comprehensive doctrines—they are built up from liberal values implicit in the political cultures of democracies without relying on comprehensive religious, ethical, or philosophical claims.9 The principle of public reason implies an individual moral duty of public reason, which requires citizens and officials to be willing to justify their political activity by appeal to a political conception of justice.10 The prevailing view among political liberals is that citizens must comply with public reason only for the sake of those who are willing to reciprocally comply.11 This implies that only citizens willing to comply properly belong to the justificatory constituency of “reasonable” citizens to whom the duty of public reason is owed.12 It is not immediately obvious why this view is correct. Not all moral duties are conditional on reciprocal compliance in this way. Consider duties of beneficence to help prevent harm to third parties in dire need. If I am walking by a pond with a drowning person whom I can save at reasonable cost, I plausibly have a duty to do so regardless of whether they would be willing to save me. Why not think that we can owe duties of public reason to those who aren't willing to reciprocate? Political liberals have done surprisingly little to answer this question. The view that public reason is always conditional on reciprocal compliance is often assumed without argument. However, advocates of the civic friendship account of public reason have developed what I think is the most promising argument for the view in the literature. The civic friendship argument grounds the duty of public reason in the communal relation of mutual respect that citizens realize when they reciprocally comply for the sake of one another.13 Andrew Lister understands the relevant form of respect in terms of “non-alienation”—unless laws are mutually justifiable, some will see their terms of political association “as being animated by purposes they find fundamentally alien.”14 R. J. Leland appeals to the value of mutual “non-imposition”. Imposition occurs when we seek to advance others' interests in ways that “substitut[e] [our] own judgments about what's good for recipients' judgments". This disrespects those we intend to help.15 Civic friends avoid the alienating imposition of cooperative terms by ensuring that each can accept the justification of democratic decisions from their own moral perspectives.16 Lister and Leland disagree about the level of societal compliance required for the duty of public reason to become binding. Lister defends a bilateral account—we always have a duty to justify decisions to every person who is willing to justify decisions to us.17 Leland defends a multilateral account—the duty of public reason is binding only if a significant proportion of citizens comply.18 This debate concerns the background conditions required for the duty of public reason to arise. I am addressing a different question: to whom is the duty of public reason owed when it does arise? In particular, why accept the prevailing view that the duty is owed only to those who are willing to comply with the duty? The civic friendship argument supports two answers. First, because unreciprocated compliance with public reason cannot realize civic friendship; it is morally pointless and cannot be justified. From the standpoint of one's comprehensive doctrine, Lister argues, compliance with public reason comes at a “moral cost”—it requires forgoing the pursuit of what one takes to be true justice for the sake of ensuring a mutually justifiable political order.19 This cost could be justified only if compliance produces a significant moral benefit. But unreciprocated compliance produces no such benefit, the argument goes, since only reciprocal compliance with public reason realizes the value of civic friendship. Lister suggests a different rationale for the view that public reason is conditional on reciprocal compliance when he argues that “[r]efusing to comply with a duty to someone who I know would not reciprocate involves affirming my own dignity”.20 The point can be understood in terms of the ideal of relational equality. Social inequality often arises in relationships when one party allows their willingness to sacrifice their interests to be exploited by others to advance theirs. It is sometimes argued that individuals have an interest in being able to appeal to the full range of their moral convictions when deliberating about matters of great political importance. Public reason requires citizens to bracket their fundamental convictions for the sake of ensuring a mutually justifiable political order.21 When X bears this cost for Y but Y is not willing to reciprocate, Y displays a “failure of recognition” towards X.22 And by allowing themselves to unilaterally bear this cost, X displays a failure of recognition towards themselves. In what follows, I respond to both of these arguments by identifying two ordinary political contexts—one with background equality and the other with background inequality—in which unreciprocated compliance with public reason serves important values while maintaining and promoting egalitarian democratic relationships. As an initial point, it is important to observe that particular instances of unreciprocated cooperative sacrifice do not always generate subordination. Whether they do so depends on contingent features of the relationship in question, including the attitudes of the parties and the history of their relationship. When parties commit to a fair overall balance of sacrifice, they need not engage in in-kind reciprocation of every sacrifice to maintain equality in their relationship. If two friends settle on a routine whereby one always shops for groceries, this need not create any relational subordination if the other friend makes sufficiently many other sorts of sacrifices. Moreover, when the balance of cooperative burdens in a relationship is unfair, beneficiaries can help restore relational equality by sacrificing without demanding reciprocation. If partner B consistently sacrifices their projects for the sake of partner A, A need not problematically subordinate themselves by now making sacrifices without demanding reciprocation. Rather, they can help restore relational equality by repaying their debt of sacrifice and recognizing the equal importance of B's interests. As we've seen, subordination can arise in relationships when individuals allow their willingness to sacrifice their interests to be exploited by others. But noncompliance with public reason is not always or even generally exploitative in this way. Some might fail to comply because they have never heard of political liberalism or the duty of public reason. Some might sincerely reject political liberalism in good faith. Perhaps they would willingly comply if they believed that the duty of public reason existed, but they sincerely believe it doesn't exist. Given the burdens of judgement, we should expect that many people will find the best arguments for political liberalism unpersuasive.23 Those who don't comply with public reason might still give equal weight to the interests of those who comply. They might affirm a comprehensive conception of justice that distributes the benefits and burdens of social cooperation in a fair and impartial way. And they may also be willing to comply with egalitarian laws that others advance through fair democratic procedures, and to cooperate on respectful terms in the democratic process. In such contexts, unreciprocated compliance with public reason need not subordinate compliers. Perhaps they make a particular sort of unreciprocated sacrifice, but noncompliers display a more general willingness to do their fair shares of the overall sacrifice required to relate as equals. To help illustrate the point, consider an idealized democratic society with a high degree of background equality and respectful cooperation: Jordania. Jordania is a democratic community with two large political parties, the Lakers and the Heat. The Lakers accept the duty of public reason. They believe that non-alienation is valuable in both its unreciprocated and reciprocated forms. They include all citizens of Jordania—including the Heat—in the justificatory constituency. The Heat do not comply with public reason. This is not because they want the benefits of being included in the justificatory constituency by the Lakers without bearing the costs of compliance. They simply do not find the best arguments for Rawlsian political liberalism persuasive after careful consideration. They instead appeal to their diverse comprehensive doctrines to justify a political platform that guarantees for all citizens a robust and fair set of primary goods. Jordania has fair and free elections. The Lakers more frequently hold a parliamentary majority because they have broader support among the citizenry. As a consequence, the laws more closely reflect the Lakers' platform than the Heat's platform. The Heat willingly do their fair shares of the sacrifices required by these laws and respectfully cooperate with the Lakers to solve collective problems. There is no pattern of oppression or injustice between the Lakers and Heat; one-off injustices are minor and swiftly remedied. An advocate of the civic friendship argument might concede that unreciprocated compliance with public reason does not create relational inequality in this case, but argue that it is nonetheless morally pointless because unreciprocated compliance cannot realize civic friendship. However, I think the best version of political liberalism acknowledges that individuals have an interest in non-alienation that stands alongside their interest in standing in relations of reciprocal non-alienation. Suppose we ask: why does mutual respect in politics require that we reciprocally justify political decisions to one another? There is generally no problematic lack of respect when individuals do not justify their choice of profession or life partner in terms of reasons others can accept. Why is democratic decision-making different? The most plausible sort of answer appeals to some general feature of democratic politics—for example, that it is coercive,24 that it involves public claims to authority,25 or that democratic power is the collective power of free and equal citizens26—in virtue of which mutual respect demands mutual non-alienation. And this feature of democratic politics will imply that citizens have an independent interest in non-alienation whether or not they comply with public reason. Individuals are subject to the state's use of coercive power and claims to authority even if they don't accept public reason. In this sense, I agree with David Enoch that considerations of reciprocity cannot lie at the “most fundamental moral level” of public reason.27 We can add some clarity by drawing two distinctions concerning cooperative reciprocity. The first distinction is between reciprocity of compliance and reciprocity of benefits. Reciprocity of compliance exists when individuals comply with norms out of a motivation to comply provided others do the same. Reciprocity of benefits exists when norms ensure, as Rawls puts it, that “all who are engaged in cooperation and who do their part as the rules and procedure require, are to benefit in an appropriate way as assessed by a suitable benchmark of comparison.”28 Reciprocity of compliance and reciprocity of benefits can come apart—there can be reciprocal compliance with norms that do not ensure fair mutual benefit and unreciprocated compliance with norms that do ensure fair mutual benefit. The second distinction is between local reciprocity and global reciprocity. Local reciprocity exists when there is reciprocity (of compliance or benefits) with respect to a particular norm. Global reciprocity exists when there is reciprocity (of compliance or benefits) with all norms of a given system. Reciprocity can be more or less global; individuals can reciprocally comply with greater or fewer norms and norms can do a better or worse job of ensuring fair mutual benefit. In Jordania, the Heat are not committed to local reciprocal compliance with the duty of public reason—the Lakers comply while the Heat do not. But the Heat display an effective commitment to global reciprocity of compliance and benefits. In such contexts, unreciprocated compliance with public reason need not subordinate compliers. Of course, real-world democracies have enduring legacies of injustice and oppression. Tommie Shelby argues that victims of systemic injustice are not bound by civic obligations, such as the duty to obey the law. Civic obligations are conditional on global reciprocity of benefits; when a cooperative scheme fails to distribute benefits and burdens in a reasonably just way, victims do not have a civic duty to obey the rules of the scheme. Drawing on Shelby, R. J. Leland argues that victims of injustice are not bound by the demands of civic friendship, including the duty of public reason.29 This is because they can reasonably conclude that fellow citizens do not take their civic interests seriously. And we cannot relate as civic friends with those who don't take our civic interests seriously. Notice what follows if we combine this conclusion with the view that public reason is always conditional on reciprocal compliance. Victims of injustice are not bound by the duty of public reason because fellow citizens don't treat them as equal partners in a fair cooperative scheme. So, victims must go above and beyond the call of duty to be included in the justificatory constituency and secure the good of non-alienation. By contrast, fellow citizens are properly included in the justificatory constituency simply by doing their duty. This seems unfair to victims of injustice. Leland suggests a response to this worry in passing, though he does not develop it at any length. Although unreciprocated compliance with public reason cannot constitute civic friendship, the response goes, it can promote civic friendship in the future. Extending fair cooperative terms that victims of injustice can accept from their own perspectives facilitate a kind of “reconciliation”. After reconciliation has been achieved through “an extended demonstration of concern over time”, victims of injustice will be bound by the full range of their civic obligations, including the duty of public reason.30 This is valuable because it is necessary for realizing civic friendship. Leland never clarifies in his brief remarks what he means by “reconciliation” or how public reason helps to promote it. One interpretation is that public reason can help repair political relationships damaged by injustice and oppression.31 I think that there is something right about this idea, and I develop a version of it below. However, any attempt to develop the idea within a civic friendship framework faces two problems. First, the civic friendship account seems unable to explain why unreciprocated compliance with public reason can help repair democratic relationships. The most natural explanation is that justifying laws in terms that victims of injustice can accept displays a valuable form of respect. However, the asymmetrical form of respect involved in complying with public reason without demanding reciprocation cannot be explained in terms of civic friendship, which is constituted by the symmetrical respect of reciprocal compliance. A second problem with Leland's account is that it grounds the reparative value of public reason in the value of realizing civic friendship in the future. But the eventual realization of civic friendship seems at most an ancillary reason to care about repairing relationships damaged by serious injustice. The more important reason is that we owe it as a matter of basic respect to affirm the equal standing of those who have been oppressed. Suppose that majorities can reliably predict that victims will not eventually accept the hand of civic friendship and comply with public reason in the future. They still have an urgent duty to repair their political relationship to a footing of equality and trust. If the use of public reason can help do so, this can ground a reparative duty of public reason. If public reason is grounded in its reparative value, its demands are not properly thought to be conditional on reciprocal compliance. Reparative duties are unidirectional and, plausibly, unilaterally binding. They are unidirectional in the sense that if X wrongs Y, X must perform reparative actions for Y (for example, apologize) that Y need not perform for X. Moreover, they are unilaterally binding in the sense that X must perform reparative actions regardless of whether they have assurance that Y would do the same if their positions were reversed. We must take responsibility for remedying the wrongs we have committed, even if we do not have assurance that those we have wronged would do the same for us in the (possibly hypothetical) world in which they wrong us. This can ground a duty to comply with public reason without demanding reciprocation. I have argued that the civic friendship account has difficulty answering two questions about the reparative value of public reason. First, why think that public reason can be used to repair relationships damaged by injustice? In the next subsection, I argue that the use of public reason facilitates a higher-order recognition of the equal standing of victims of injustice. Second, why is repairing relationships through public reason valuable? Leland answers that it helps promote civic friendship through reciprocal compliance in the future. I argue that moral repair through public reason is intrinsically valuable regardless of whether it eventually leads to reciprocal compliance or not. Democratic citizens stand in a distinctive relationship as co-sovereigns and co-subjects of their laws. They are co-sovereigns at least in the minimal sense that they have equal shares of political power—equal voting and other democratic rights—to determine which laws are made and implemented (or which representatives make and implement them). Like Rawls and many others, I assume that citizens have a duty to use their share of political power to promote just institutions and oppose unjust institutions.32 Citizens' duties of justice as co-sovereigns correspond to their vulnerability as co-subjects.33 In a democracy, we depend on others to ensure that laws and institutions treat us as free and equal members of a fair cooperative scheme. Unless enough fellow citizens vote and advocate for just laws and representatives, we may be subject to a basic structure that fails to give us the rights, entitlements, and opportunities we are owed as free and equal. This vulnerability is heightened by the fact that closed borders, limited economic opportunities, and language barriers make it excessively costly for most individuals to exit their states. Most people cannot easily escape the confines of an unjust basic structure. Political majorities commit a serious wrong when they use democratic power to exploit the vulnerability of minorities to advance their own interests. A paradigm example is persistent majority tyranny. This occurs when majorities use democratic institutions to persistently impose unjust cooperative terms on political minorities, often based on race, gender, class, sexual orientation, caste, or creed. I examine the case of caste-based tyranny below. Majority tyranny is wrong for many reasons. It is wrong in part because it results in substantively unjust institutions. But it is also an intrinsically problematic form of relational subordination—members of majorities and minorities do not relate as equal co-sovereigns and co-subjects, but as rulers and ruled-over. Consciousness of this subordination is likely to be experienced as oppressive by victims and to damage self-respect and bonds of trust. Individuals are active participants in majority tyranny when they vote and advocate for unjust laws, and they are mere beneficiaries when they do not vote for such laws but benefit from them. I will use the more general term “beneficiaries” to refer to both groups, and the term “victims” to refer to those who are subject to majority tyranny. Beneficiaries have a duty to oppose the effects of majority tyranny in a way that repairs their democratic relationships with victims. Importantly, the task of repairing a relationship introduces a set of demands oriented towards recognizing the equal standing of those who have suffered wrongdoing. Public reason can play an important role in this reparative task. It does not replace the need for corrective measures that guarantee victims a fair share of rights, opportunities, and resources, or for appropriate restorative procedures such as trials or commissions that hold wrongdoers to account. The use of public reason helps repair relationships through the public justification of such measures. It does so by facilitating a higher-order recognition of the equal standing of victims of injustice. Higher-order recognition is X's recognition that Y recognizes X's equal standing in their relationship.34 Establishing higher-order recognition is often an important element repairing relationships after wrongdoing. Persistent mistreatment generates a justified perception on the part of victims that they have, and are viewed as having, a subordinate moral status. After this damaging failure of recognition, establishing relational equality requires that victims can agree from their own perspectives that wrongdoers recognize their equal standing.35 This partly explains why reparative gestures such as apologies must be sincerely and freely accepted to have their full reparative effect.36 Higher-order recognition can be contrasted with the mere lower-order recognition that occurs when Y recognizes X's equal standing according to Y's moral standards but not X's standards. Wrongdoers might believe that they treat victims as equals, but if their moral beliefs are fundamentally alien or at odds with victims' beliefs about moral equality, victims might be unable to agree that they are respected as equals. Moral repair remains incomplete in an important sense. The use of public reason recognizes victims' equal standing, and promotes victims' recognition that they are so recognized, in two ways. First, it opposes the continued political alienation of victims. Part of what makes majority tyranny wrong is that it imposes institutions that political minorities cannot see as congruent with their own values and self-respect. Majorities have a strong reason to establish relational equality by combating the political alienation they have created and benefited from. The use of public reason does so by ensuring that important decisions are justified in terms of liberal values and principles victims can accept from their own moral perspectives. Second, the use of public reason promotes higher-order recognition of the equal weight of victims' interests in the distribution of primary goods. Majority tyranny entrenches an unfair and exploitative basic structure. Ensuring that the distribution of cooperative benefits and burdens is justifiable in terms of public reasons victims can accept promotes their recognition that majorities recognize their equality. If there is a mere modus vivendi on cooperative terms based on the balance of political power, there is no adequate assurance that majorities won't engage in further tyranny once their political position is more favourable. Moral repair is best promoted when victims can accept the entire public justification for democratic decisions, including the underlying values, principles, and intuitions that justify the decisions. This provides a reason to include victims of injustice in the justificatory constituency of public reason. Justice as fairness, understood as a political conception of justice, provides an argument from moral equality—the original position argument—that individuals with different comprehensive doctrines can accept. Given these considerations, I think the reparative value of public reason