How can claims to authority be reconciled with our status as free and equal persons? This is the fundamental problem that Gaus addresses in his new book The Order of Public Reason. Claims to authority are evident in our political order, but we also make claims to authority in social morality. When we make moral demands, we tell other people what to do – and we sanction non-compliance. Given that we disagree on what morality requires and on what laws we should have, these claims to authority seem problematic. Gaus's solution to the fundamental problem stands in the tradition of Public Reason Liberalism: claims to authority have to be publicly justifiable, i.e. justifiable from the perspective of all persons concerned, in light of their differing evaluative standards. While John Rawls and other Public Reason Liberals separate moral and political philosophy, thereby developing a ‘freestanding’ political philosophy, Gaus presents a unified picture of the moral and the political order (pp. xiv, 2). His version of Public Reason Liberalism applies the idea of public justification to both.
To say it straight away, The Order of Public Reason is a great book – an impressive mature work of a leading contemporary moral and political philosopher. It provides an illuminating, elaborate and coherent perspective on a wide array of topics in practical philosophy. Not only does Gaus have command of the relevant literature in ethics and political philosophy, but also in epistemology, economics, experimental psychology, social choice and game theory. As always, he writes in a clear and accessible style.
Evidently, the heart of Gaus's theory is his account of public justification. Authoritative rules of social morality, as well as authoritative laws, have to be justifiable to every person. They are justifiable to a person if that person has sufficiently strong reasons to accept them (and in case of moral rules also to internalize them). A person need not consciously acknowledge a reason in order to ‘have’ the reason, because we sometimes do not actually see our reasons. Instead, a person has sufficient reason to believe or do (or accept) something if she would see the reason after ‘a respectable amount of good reasoning’ (p. 250) and if the reason is not outweighed by competing ‘defeater’ reasons.
Gaus then translates the justificatory problem into a deliberative one. Instead of asking what is justifiable to empirical persons, we ask what moderately idealized counterparts of these empirical persons could agree on. These moderately idealized counterparts – Gaus calls them ‘Members of the Public’ (p. 26) – actually perform ‘a respectable amount of good reasoning’, and so actually see all the reasons the empirical persons have. In addition, Members of the Public take only ‘mutually intelligible’ evaluative standards as the basis of their reasoning (p. 279). Nevertheless, there is a deep pluralism in evaluative standards – including even conceptions of justice – among the Members of the Public (pp. 2, 276).
Gaus thus formulates the Deliberative Public Justification Principle as follows (pp. 267, 27): ‘L is a bona fide rule of social morality only if each and every Member of the Public endorses L as binding (and so to be internalized).’ The same will hold for laws in the political order. A moral and political order that includes only publicly justified rules, institutions and laws is an ‘Order of Public Reason’. People who live in an Order of Public Reason do not have to submit to authority that is not justifiable to them, which means that they are free in a positive sense (p. 224). Gaus sees this as a Kantian element in his theory.
The public justification principle is a demanding test. Nonetheless there are, first of all, some abstract rights that pass it. To see this, Gaus invites us to start with an ‘abstract justification’ (p. 336) where the pluralism of evaluative standards among the Members of the Public is provisorily hidden behind a (more or less) Rawlsian veil of ignorance. What Members of the Public have in common in this setting is, according to Gaus, that they see themselves as agents. He tries to show that all Members of the Public would therefore accept a presumption in favour of negative liberty (p. 341), as well as abstract rights against coercion and deception (p. 349) and a right to liberty of conscience (p. 354). Gaus thinks that these negative ‘rights of agency’ – in contrast to positive welfare rights (p. 363) – will be accepted by Members of the Public even after reintroducing the pluralism of their evaluative standards. They are thus ‘fully justified’.
Second, because Members of the Public are aware of the pluralism of their evaluative standards, they would agree on a ‘partition of moral space’ (p. 372) through some system of private property rights (p. 377) and rights to privacy (p. 381). To indicate their purpose, Gaus calls this kind of rights ‘jurisdictional rights’.
Both rights of agency and jurisdictional rights are fully publicly justified, but they are too abstract for actual moral and political orders. They have to be concretized to the level of rules and laws to be able to work (p. 369). And there are many ways to concretize them. On the level of concrete rules and laws, the deliberative efforts of the Members of the Public do not lead to one determinate result. Instead, there will usually be an ‘eligible set’ of acceptable proposals for concrete rules and laws. An eligible set consists of proposals that all Members of the Public prefer to having no rules or laws at all in some area of activity (p. 322). But Members of the Public will differ in their ranking of the proposals in the eligible set.
One method to select one proposal out of the eligible set as the authoritative rule or law would be to let a political arbitrator decide. This is the solution of classical contract theorists and also Gaus's own solution in earlier works (p. 24). But now Gaus emphasizes the possibility of non-political coordination. If an eligible set contains an evolutionarily developed and actually accepted moral rule, then this rule has a quality which other proposals in the eligible set lack (p. 410). That a moral rule is a part of an actually accepted, ‘positive’ social morality is, according to Gaus, a necessary (but not sufficient) condition for claiming the status of being a justified authoritative moral rule (pp. 164, 263). A merely possible but not actual authority is simply no authority at all. Though this aspect of Gaus's theory constitutes a certain conservatism, it is not meant to deny the possibility and legitimacy of reform within the eligible set (p. 434). And of course the abstractly justified rights of agency and jurisdictional rights are a source for criticism of actual moralities and laws (pp. 180, 429).
In the last chapters of the book, Gaus deals with the political implications of his approach. In contrast to Rawls and most other Public Reason Liberals, he argues that the public justification principle leads to classical-liberal conclusions concerning the proper scope of government (pp. 508, 526). The reason for this is that some Members of the Public have classical liberal beliefs. These beliefs might not be more reasonable than the beliefs of welfare liberals, but classical liberals can let stronger redistributive proposals drop out of the eligible set (pp. 501, 521). Only a ‘small state’ – not necessarily a ‘minimal state’ – can be publicly justified (p. 506).
One basic challenge that all forms of Public Reason Liberalism face is to provide convincing reasons to accept the public justification principle in the first place. Gaus thinks that the public justification principle is not in need of being publicly justified itself (p. 226) or being justified by any other ‘external’ justification. Instead, he tries to show that the principle is internal to our everyday practice of moral reasoning: we do not blame a person for what she did when the person had no access to the reasons why her action was wrong (pp. 184, 258). This is why, for example, we do not blame little children or animals for what they do. Gaus tries to show that this is to acknowledge the public justification principle for claims to authority among free and equal persons.
One feature I would like to emphasize about Gaus's theory is its ‘realist’ character. It shies away from drawing pictures of ideal justice and instead specifies a range of justifiable options. We should aim at living by rules and laws that are in the eligible set, not living by rules and laws that would instantiate our own vision of perfect justice. Nonetheless, I have the impression that Gaus sometimes tends to identify an Order of Public Reason with ‘justice’ (e.g. p. 446). In my opinion, we should better view an Order of Public Reason as a ‘modus vivendi’, and stay agnostic towards justice in the project of public justification. This would also be more in line with Gaus's conceptualization of Members of the Public as having different conceptions of justice. To push Gaus's theory even further in a ‘modus vivendi’ direction, some might even be willing to give compromising a prominent place in public justification. Gaus, however, argues that justification has nothing to do with compromising (pp. 406, 505).
In this short review I had to restrict myself to what I see as some main theses and arguments of Gaus's book. His concise critique of purely instrumentalist accounts of morality and his interesting defence of the rationality of rule-following are just two examples of what I had to leave out. The Order of Public Reason is a voluminous but also extremely rich book, worth reading for anyone working in moral and political philosophy. It deserves to become a classic reference work of Public Reason Liberalism.
