ISSUE INDIVIDUATION IN PUBLIC REASON LIBERALISM

Colin Manning

A Dissertation

Submitted to the Graduate College of Bowling Green State University in partial fulfillment of the requirements for the degree of

DOCTOR OF PHILOSOPHY

May 2021

Committee:

Kevin Vallier, Advisor

Gary Oates Graduate Faculty Representative

Brandon Warmke

Michael Weber ii

ABSTRACT

Kevin Vallier, Advisor

This dissertation addresses the problem of issue individuation in public reason liberalism.

The problem of issue individuation involves how laws relate to one another for purposes of

public justification. That is, how many laws may be justified at once? The dissertation first provides an overview of the literature on issue individuation, and articulates three conditions any principle of issue individuation must meet. Then it articulates a solution to the problem of issue individuation in the form of a functional independence principle, which individuates laws based on the goals of idealized members of the public. Finally, the dissertation explores the implications of the functional independence principle on arguments regarding property rights and egalitarian redistribution. iii

ACKNOWLEDGMENTS

It takes a community to write a dissertation. As such, my acknowledgments are numerous

and diverse.

First, I must acknowledge my family, both biological and chosen, who have offered me

unconditional love and support throughout this arduous process: my parents Pam and Jon, my

sister Nicolette, and my chosen grandmother Mary.

Next, my eternal thanks to the graduate students of the Bowling Green State University

Philosophy Department, the greatest group of friends and colleagues one could ask for. Special thanks to Amitabha Palmer and Ryan Fischbeck for their helpful and challenging feedback on drafts of this dissertation; as well as to Sara Ghaffari, Tim Walsh, John Luchon, Mark Herman,

Scott Simmons Will Luger, and Pierce Gordan, most virtuous in friendship. And speaking of the department, thanks to our exemplary secretary Margy DeLuca for her endless help and support.

Also a special thanks to my therapist Kevin Walker and my psychologist Elizabeth Cox,

who fought to pull me out of the abyss.

My unending gratitude to the professors who have helped me along this path. Great thanks

to Michael Weber, Brandon Warmke, and Gary Oates for sitting on my committee. Special

acknowledgments to Alyssa Bernstein, who started me on this journey, and to Christian Coons,

who kept me from giving up on it.

Finally, my greatest thanks to my advisor and friend Kevin Vallier. He never stopped caring,

never stopped supporting, and refused to give up on me, no matter how many reasons I gave him

to. I am forever indebted. iv

TABLE OF CONTENTS Page

INTRODUCTION...... 1

CHAPTER 1: ACCOUNTS OF ISSUE INDIVIDUATION IN PUBLIC REASON

LIBERALISM...... 4

Public Reason Liberalism: A Primer...... 5

The Deliberative Model...... 5

The Intelligible Reasons Requirement...... 7

Moderate Idealization...... 8

The Problem of Issue Individuation...... 10

Fine- vs. Coarse-Grained Issue Individuation...... 10

The Import of the Problem...... 11

Against Coarse-Grained Models...... 12

The Presumption in Favor of Fine-Grained Individuation...... 12

Critiques of Arguments that the Presumption Can be Met...... 13

The Basic Structure Argument and the Radical Derivative

Justification Thesis...... 13

The Basic Interests Argument...... 15

The Argument from Completeness...... 16

Watson and Hartley’s Relationship Argument for Coarse-Grained

Individuation...... 19

Gaus’s Justificatory Dependence Principle...... 22

The Principle...... 22

Challenges by Enoch...... 24 v

Elaborating on Enoch’s Challenges...... 25

Challenges by Lister...... 29

A Defense of Gaus against Lister’s Challenges...... 35

Against Approximating Incrementalism...... 35

Against the Infeasibility of Disaggregation...... 36

An Alternative? Lister’s Reasons-for-Decisions Model...... 38

Lister’s Model...... 38

Against Lister’s Model...... 39

Vallier and Billingham vs. Lister...... 39

Against Lister’s Reasons-for-Decisions Model: A Dilemma...... 40 Conclusion...... 41

CHAPTER 2. A FUNCTIONAL INDEPENDENCE ACCOUNT OF ISSUE

INDIVIDUATION ...... 43

Three Conditions for an Adequate Account of Issue Individuation...... 43

The Functional Independence Principle...... 46

The Functional Independence Principle Meets the Three Conditions...... 50

The Presumption in Favor of Fine-Grained Individuation...... 51

Clear, Explanatory Outcomes...... 51

The Zoom Problem...... 53

Objections to the Functional Independence Principle...... 55

Dealing with Multiple Preferences and Cardinal Information...... 58

Some Thoughts on Policy Epistemology...... 59 vi

CHAPTER 3: AN ASSOCIATIONAL ARGUMENT FOR EGALITARIAN

REDISTRIBUTION ...... 61

Vallier on Redistribution...... 62

The Functional Dependence between Property Rights and Redistribution...... 63

An Associational Right of Citizenship...... 68

An Associational Argument for Egalitarian Redistribution...... 73

Redistribution and Sub-Public Justification...... 83

Exemptions and the Limits of Political Association...... 88

BIBLIOGRAPHY...... 95 1

INTRODUCTION

Public reason liberals contend that a necessary condition on the legitimacy1 of law is that laws be publicly justified - that is, justified to those persons subject to the law. To that end, public reason liberals endorse the Public Justification Principle (PJP):

A coercive law L is justified in a public P if and only if each member i has sufficient

2 reason(s) Ri to endorse L.

According to the PJP, the objects of public justification are coercive laws. However, over the

last decade public reason liberals have come to disagree on the proper scope or granularity of laws.

John Rawls, Peter de Marneffe, T.M. Scanlon, Lori Watson and Christie Hartley contend

that the scope is narrow3: the PJP applies only to laws regarding constitutional essentials and

matters of basic justice. That is, members of the public need only have sufficient reason to endorse laws that involve certain fundamental political questions, including the structure of

government and political processes, and the equal basic rights and liberties of citizens.4 The other laws of a legal system are then justified derivatively, through the procedures and institutions these fundamental laws establish - for example, voting. In this way, large bundles of laws are justified at one time, directly through application of the PJP and derivatively through procedures such as voting. I will call this method of individuating laws coarse-grained.

In contrast, Jonathan Quong asserts that the scope of coercive laws is broad5: every

individual law should be the object of the PJP. That is, for every individual law, members of the public must have sufficient reason to endorse that law in order for that law to be publicly justified. I will call this fine-grained individuation of law.

1 A law is legitimate when the state has a claim-right to coercively enforce that law. 2 Vallier, Liberal, 24. 3 For this terminology, see Quong, Liberalism, 273-75. 4 Rawls, Political, 227. 5 Quong, Liberalism, 274. 2

Gerald Gaus and Kevin Vallier take a more nuanced approach to the individuation of law.

On the one hand, both broadly endorse a fine-grained approach to law individuation.

However, Gaus notes that certain laws may have “strong interactive effects”6, and that such laws may have to be justified together in small bundles. Gaus thus proposes a Justificatory

Dependence Principle that individuates laws based on whether or not they constitute distinct

“issues.” If they do, each law must be justified separately i.e. more fine-grainedly. If they do not, they must be justified together, i.e. more coarse-grainedly.

I will call establishing the appropriate grain of law the problem of issue individuation.

Addressing this problem has considerable consequences for the public reason literature. This is because establishing the proper scope of coercive law is critical to establishing what members of the public have sufficient reason to endorse. How we individuate issues establishes a baseline against which laws are compared by members of the public. For example, are laws against murder and laws regarding abortion to be justified together, or separately? If they must be justified together, then members of the public may have sufficient reason to accept even draconian abortion laws, so long as doing so assures that laws against murder are justified. Or again, are laws regarding property rights to be justified alongside laws regarding redistributive taxation? If not, then there may be no way to justify redistributive taxation. This is because libertarian members of the public will have defeater reasons for any form of redistributive taxation, unless doing so would assure a broad set of property rights. So issue individuation affects what laws can be justified on a public reason view.

I aim to address the problem of establishing the proper scope of coercive law for the

application of the PJP. That is, how do we individuate legal issues to discern how many laws

must be publicly justified at one time? I will address the problem of issue individuation in

6 Gaus, Order, 495. 3

three ways across three chapters. In the first chapter I will review and critically evaluate the literature on the problem of issue individuation as it currently stands. I will argue that no adequate account of issue individuation has yet been offered, and outline the elements of any successful solution to the problem. In the second chapter I will provide my own account of issue individuation in the form of the functional independence principle. According to this principle, we individuate laws from one another when doing so allows members of the public to meet their goals. I will offer reasons to accept my principle and defend the principle from various possible objections. Finally, in the third chapter I will use the functional independence principle to weigh in on a major debate in the public reason literature: the debate regarding the justification of property rights and redistributive policies. I will argue that laws regarding property rights and redistribution functionally depend on one another, and so cannot be justified apart. This leads me to turn to more fundamental associational rights of citizenship to justify redistribution. This associational argument for redistribution will ultimately lead to a critique of the use of exemptions to ease the burdens of public justification. 4

CHAPTER 1: ACCOUNTS OF ISSUE INDIVIDUATION IN PUBLIC REASON

LIBERALISM

Recently many public-reason liberal theorists have focused attention on the “scope” or

“granularity” of public reason. This problem concerns what is to be publicly justified or what

is the object of public justification. The object of public justification is specified as the thing to be justified in the standard public reason liberal Public Justification Principle (PJP):

A coercive law L is justified in a public P if and only if each member i of P has

7 sufficient reason(s) Ri to endorse L.

The PJP indicates public reason views commonly take coercive laws to be the object of public justification. However, this raises the further question how fine- or coarse-grained coercive laws or public policies8 must be for purposes of public justification. Put another way, we must identify how legal and policy issues are to be individuated for them to be the proper objects of public justification. I shall refer to this as the problem of issue individuation.

This chapter is an overview of and critical engagement with the literature on issue

individuation as it currently stands. It will proceed in six parts. The first section will act as a primer on the version of public reason liberalism I will be appealing to for the remainder of

the chapters to come. In the second section I will distinguish fine- from coarse-grained

accounts of issue individuation. I will also emphasize the import of the problem of issue individuation for the public reason project. In section III I will address criticisms against coarse-grained models of policy individuation. I will review Jonathan Quong and Gerald

Gaus’s argument for a presumption in favor of fine-grained policy individuation, and their critiques of arguments in favor of coarse-grained individuation. I will also critically engage

7 Vallier, Liberalism, 24. 8 Public policy relates to law insofar as the enactment of public policy is achieved in part through the enactment of coercive laws. For example, the enactment of a drug policy is achieved in part through the enactment of coercive laws regarding the sale of drugs. 5

with Lori Watson and Christie Hartley’s Relationship Argument in favor of coarse-grained

issue individuation, and argue it is inadequate. In section IV I consider Gaus’s fine-grained model of issue individuation in the form of his Justificatory Dependence Principle. I will then

address a number of criticisms of his Principle, and then add my own worry. However, I will

also defend his Principle from some criticisms, as I believe Gaus's approach, once further

developed, can generate the correct results. In the fifth section I will consider an alternative approach to issue individuation proposed by Lister. I will review criticisms of Lister’s model,

and argue his proposed reasons-for-decisions model faces a dilemma. In the final section I

will conclude what is required is a better account of issue individuation, which I will develop in the second chapter.

Public Reason Liberalism: A Primer

Throughout this and the following chapters I will be working within the framework of

public reason liberalism. In this section I will set out some of the foundational concepts of

public reason liberalism that will be important for the sections and chapters to come. In the

first part I will briefly explain the concept of the Deliberative Model, a central feature of

public reason liberalism. Then I will discuss the role of reasons in public reason liberalism,

including the intelligible reasons standard I assume for purposes of the chapters to come.

Finally, I will discuss idealization in the context of the Deliberative Model, and the reasons in

favor of taking a moderate idealization approach. I make heavy appeal to the arguments and

ideas of Gerald Gaus and Kevin Vallier, and these complex issues can be explored in much

greater detail in their work. Consider this a primer on the version of public reason liberalism

that I will be operating within when approaching the problem of issue individuation.

The Deliberative Model

As stated above, public reason liberals place a public justification requirement on the

legitimacy of law. But how do we determine what is publicly justified? The key insight of the 6

public reason tradition is to transform this justificatory problem into a deliberative problem.9

That is, when thinking about what agents would think publicly justified, we should think

about the problem in terms of agents deliberating about what to do. This gives rise to the idea

of the Deliberative Model: a model where we suppose agents are deliberating over what laws

they would endorse together. The results of these imagined deliberations are meant to give

theorists some idea of what agents would have sufficient reason to endorse, and so what is

publicly justified.

The details of the Deliberative Model will vary from theorist to theorist. The Model my

theorizing takes off from was developed by political philosopher Gerald Gaus. On this Model, we imagine a group of agents - called members of the public - with a diverse set of evaluative standards - standards about what constitutes the good and the just that they use to rank

proposed laws against one another.10 The members of the public are idealizations of real

moral agents. (See below for more on idealization.) Members make proposals for various

laws to one another, limited by certain agreed-upon formal and moral constraints.11 Members

then rank proposals against one another, and against a baseline of blameless liberty - a case where no one has a duty to act in a certain way, nor do they have a duty not to act in that way.

Those policies that any member of the public ranks as below a blameless liberty are said to be defeated. That is, those members of the public do not have sufficient reason to endorse the policy in question.12 All policies ranked above a blameless liberty by all members of the

public constitute what Gaus calls the socially eligible set of proposals. We can then apply a

Pareto rule to the socially eligible set, whereby if any policy A is ranked as preferred to any policy B by all members of the public, B is removed from the set. Once this Pareto rule has been applied, we are left with an optimal eligible set of proposals. Only members of the

9 Gaus, Order, 264. 10 Ibid. 276-9. 11 Ibid. 294-303. 12 Ibid. 316. 7

optimal eligible set can meet the condition of public justification, as they are the only policies

we can say members of the public have sufficient reason to endorse.13

However, it is important to note that the Deliberative Model does not aim to be a full

rational reconstruction of our legal order. That is, we are not attempting to build a holistic justification of our entire legal practice at one time. Rather, the Deliberative Model functions

as what Gaus calls a testing conception.14 The role of the model is to help us, as philosophers,

address particular justificatory problems as they arise. As such, many legal issues are taken as

settled when addressing still further, less fundamental legal issues. The order in which issues

are addressed Gaus calls the order of justification.15 Part of the purpose of the following

chapters is to determine how issues relate to each other in the order of justification - which

issues occur in the same relative “position” in the order, and which can be understood as

more or less fundamental.

The Intelligible Reasons Requirement

It’s worth considering what kinds of requirements public reason liberals place on reasons

in order for those reasons to play a part in public justification. Generally there are three

different requirements public reason liberals might place on sufficient reasons: a shared

reasons requirement, an accessible reasons requirement, and an intelligible reasons

requirement. These standards can be organized based on two criteria: whether or not they

require reasons be shared by all members of the public, and whether or not they require

evaluative standards be shared. The shared reasons requirements require that both reasons

and evaluative standards be shared. That is, for reasons to be sufficient reasons to justify

policy, they must be shared by all members of the public. Put another way, members of the

public must all have the same reasons to endorse a policy in order for that policy to be

13 There are further complications depending on the content of the optimal eligible set of laws, complications I will leave to the side here, but see Gaus, Order, 321-332, also chapters VI and VII; and Vallier, Politics, 110-112. 14 Gaus, Order, 425. 15 Ibid. 275. 8 publicly justified. The accessible reasons requirement, in contrast, only requires that

evaluative standards be shared; while members of the public may disagree about the reasons

in favor of a policy, they agree on the standards by which those policies are assessed. Or

again, members all pull from the same pool of reasons when justifying policy, but needn’t all pull on the same reasons from that pool. Finally, the intelligible reasons requirement does not

require that reasons be shared, nor requires that evaluative standards be shared. Instead, the

intelligibility requirement demands only that the reasons relevant to public justification be

intelligible to all members of the public - that is, recognized as relevant reasons based on the

evaluative standards of the member whose reasons they are.16

I assume for purposes of the chapters to come an intelligible reasons requirement,

drawing on the work of Kevin Vallier.17 In future chapters I appeal to the idea that members

of the public will have diverse reasons pulled from diverse evaluative standards to endorse

different legal policies, and that these reasons will bear on public justification. This only

makes sense within an intelligible reasons framework.

Moderate Idealization

We noted in subsection I.1 that the members of the public in the Deliberative Model are

to some extent idealized. That is to say, when modeling agents in the Deliberative Model, we

don’t just model agents as they exist in the real world. This is because real agents’ beliefs can be epistemically compromised in various ways. It might be that their beliefs are based on a

lack of basic information or simple rational errors. It is thought in public reason liberalism

that, when it comes to public justification, the reasons that count as sufficient reasons are those that can survive at least some rational and informational scrutiny. As such, members of the public are to some degree or other epistemically idealized agents.

16 For a review of these different conceptions of justificatory reasons, see Vallier, Liberal, 104-111. 17 For his extended defense of an intelligible reasons requirement, see Vallier, Liberal, chapter 4. 9

To what degree members of the public are idealized is a point of contention in the public

reason tradition. There are basically two camps: those who support radical idealization, and

those who support moderate idealization. Radical idealizers contend, roughly, that the beliefs of members of the public should be revised so as to be as rationally and informationally perfect as possible. That is, members of the public should be assumed to have all information relevant to their deliberations, and as having perfect rational faculties. Moderate idealizers, by contrast, take a predictably more moderate approach: while idealization should correct for some rational and informational errors, members of the public are not assumed to possess the superhuman inferential and informational processing power that radical idealization supposes.

At the heart of this conflict rests a basic trade-off. On the one hand, it seems desirable that, at least to some extent, we should insulate the justification of policy from rational and informational errors. On the other hand, when determining what members of the public have sufficient reason to endorse, it is desirable, at least to some extent, that real agents be able to see those reasons as coming from their ordinary concerns as agents. Radical idealization strikes the bargain in favor of eliminating rational and informational errors to the greatest

extent possible, at the cost of ascribing reasons to agents that may be entirely alien to them

(because the corresponding member of the public is, after a fashion, an alien on the radical idealization model). Moderate idealization attempts to strike more of a balance: while it allows for nontrivial rational and informational errors to occur in the Deliberative Model, it does so in a way that allows real agents to recognize the reasons ascribed to them as ones they might actually adopt.18

I do not hope to even attempt a resolution to this conflict here. Put simply, I stake my claim with the moderate idealizers. In particular, I find myself compelled by arguments to the

18 Vallier, Politics, 100. 10

effect that moderate idealization of some kind is required in order to strike the proper balance between the warring considerations above. Or again, moderate idealization is required so that we can properly ascribe reasons to the agents we are modelling.19 Fortunately, while some points of my argument rest on the requirement that we moderately idealize, they do not turn much on any detailed account of moderate idealization. As such, I leave the matter more or less settled here.

The Problem of Issue Individuation

Fine- vs. Coarse-Grained Issue Individuation

Here I make use of Vallier’s understanding of law. Vallier: “I understand a law or legal

rule as a social rule generally regarded as supremely authoritative and that is typically enforced through official coercive sanction by publicly recognized norm-interpreting

institutions like courts.”20 A law’s authority is supreme insofar as its obligatory force is taken

to trump the obligating power of other rules in a society. Legal coercion involves serious

social sanctions, such as the loss of life, liberty, or property. Laws are a formalized part of adjudicative systems for the authoritative settlement of disputes.21

Central to the problem of issue individuation is the granularity of the coercive laws that

stand in need of justification. It may be helpful to think of granularity in terms of how laws

are distinguished from each other to be the proper objects of public justification. That is, how

many laws at one time are the proper objects of the PJP? A model of issue individuation is

fine-grained when it demands that all laws be justified independently, or else in smaller

bundles. A model is coarse-grained when it demands that laws be justified in large bundles,

or even holistically (such that an entire system of government must be justified at once).

Coarse-grained models in the literature commonly limit the scope of the application of the

19 For arguments to this effect, see Gaus, Order, 254-7 and Vallier, Liberal, 155-8. 20 Vallier, Politics, 128. 21 Ibid. 128-132. 11 PJP to laws regarding questions of constitutional essentials and matters of basic justice.22

Questions of constitutional essentials and matters of basic justice are fundamental political

questions concerning, among other things, “the general structure of government and the political process” and “the equal basic rights and liberties of citizenship”.23 Other laws are

then to be derivatively justified by procedures established by laws regarding constitutional

essentials and matters of basic justice - say, voting procedures.24 Members of the public

needn’t have sufficient reason to endorse laws so established in order for those laws to be

legitimate. The laws’ legitimacy is established through the procedure, not through application

of the PJP. In this way large swaths of laws are justified at one time - both directly by appeal to the PJP, and derivatively through procedures legitimized by application of the PJP. It is

important to note however that granularity is a continuous concept: a model can be more or

less fine-grained or coarse-grained.

The Import of the Problem

Resolving the problem of issue individuation has considerable consequences for public

reason views. The problem of issue individuation is important because it establishes the

appropriate scope of coercive laws and policies. This in turn establishes whether or not

members have sufficient reasons to endorse the laws in question. This is because how we individuate issues establishes a baseline against which laws are compared by members of the

public, and so defines members’ eligible sets.

How we individuate will greatly affect the implications of public reason views. What

members have sufficient reason to endorse may change depending on how issues are parsed.

Establishing what is to be justified has considerable import on what will is justifiable. This in

turn impacts the shape of law in public reason views. For example, can laws against murder be individuated away from laws against abortion? If not, members may have sufficient reason

22 Rawls, Political, 213-5; Watson and Hartley, Equal, 64-7. 23 Rawls, Political, 227. 24 Watson and Hartley, Equal, 67. 12

to endorse even draconian laws against abortion in order to guarantee laws against murder.

This is because, compared to the baseline of having no laws against murder and no laws against abortions, members may have sufficient reason to endorse almost any bundle of laws that assures the illegality of murder. Or again, can property law be justified apart from redistributive law? If it can, then we may fail to justify any redistributive law at all, since members might not have sufficient reason to endorse redistributive laws once property laws are guaranteed independently. The most libertarian members of the public will have no sufficient reason to endorse laws of redistribution, unless property was also on the line.25 So

what laws can be justified on a public reason views, especially important laws like the ones

canvased above, will depend on issue individuation.

Against Coarse-Grained Models

In this section I will argue against coarse-grained models of issue individuation. I will

first canvas Quong and Gaus’s arguments for what I call a presumption in favor of

fine-grained individuation. Then I will consider Quong’s critiques of various arguments to

the effect that the presumption can be met. Quong argues that none of these arguments are sufficient, and I agree. Finally, I will explain Watson and Hartley’s Relationship Argument

in favor of coarse-grained individuation, and argue that it too cannot meet the presumption.

The Presumption in Favor of Fine-Grained Individuation

Both Quong and Gaus contend there is a presumption in favor of fine-grained issue

individuation. That is, there is a presumption that all individual laws are proper objects of the

PJP. Quong believes this presumption follows from the idea of public reason: if citizens

should not be subject to the use of political power they reasonably reject, then any such use

stands in need of public justification.26 Gaus claims that members of the public have a right

25 For more on this problem, see section IV of this chapter. 26 Quong, Liberalism, 275. 13

not to be coerced, and so coercive action requires justification.27 At the core of each of these claims is the idea that the exercise of political power in all its forms stands, prima facie, in need of public justification, both at the level of constitutional essentials and at the level of non-essential law. Thus the argumentative burden is on those who claim only some subset of laws require public justification (as is the case with coarse-grained models of issue individuation). They must show that applying the PJP to all individual laws is either undesirable or unattainable.28 If no such argument is in the offing, we have strong reason to prefer accounts that individuate law and policy finely rather than coarsely.

Critiques of Arguments that the Presumption Can be Met

The Basic Structure Argument and the Radical Derivative Justification Thesis

Quong and Gaus argue against common attempts to meet the presumption in favor of

fine-grained individuation. Both consider the Rawlsian argument that public justification is

limited to fundamental laws concerning constitutional essentials and matters of basic

justice.29 These fundamental laws apply to the basic structure of society - the main social,

political, and economic institutions of society.30 This Basic Structure Argument appeals to a

Radical Derivative Justification Thesis.31 The thesis contends that, once the fundamental

coercive laws applying to the basic structure of society are justified, all non-fundamental laws

created within the basic structure of society derive justification from those fundamental laws.

Quong:

According to this argument [the Basic Structure Argument], because the basic

structure of society affects our lives in a profound and unavoidable way, it is of the

outmost [sic] priority that its institutions be publicly justifiable to all those citizens

27 Gaus, Order, 490-1. 28 Quong, Liberalism, 278. 29 For their respective arguments (reconstructed below), see Quong, Liberalism, 275-278 and Gaus, Order, 490-495. 30 For Rawls on the basic structure of society, see Rawls, Political, 11-12. 31 I believe the argument and the thesis amount to the same thing, so I treat the two together here. 14

whom it affects. Non-essential political decisions gain their legitimacy by virtue of

the fact they are enacted within a publicly justified basic structure, even if the norms

of public reason are not observed in deciding those non-essential matters.32

Since non-fundamental laws derive their justification in this way, it is unnecessary to require

they be justified by appeal to public reason. Rather, justification of non-fundamental laws is

aggregated into the justification of constitutions.

Quong and Gaus object to the argument in different ways. On the one hand, Gaus rejects the Radical Derivative Justification Thesis. Gaus claims moral authority is prior in the order of justification to the authority of the state. The order of justification is the order in which political issues are settled. Issues prior in the order are taken as settled issues when considering issues later in the ordering.33 So the justification of constitutional law will depend on whether members of the public can confer moral authority on constitutions. If members have reason to think some constitutional scheme will frequently violate their moral rights, they have reason to reject that scheme. So agents would reject constitutions that conformed to the Radical Derivative Justification Thesis. Such constitutions would predictably frequently violate agents’ rights.34

On the other hand, Quong argues that even if the Radical Derivative Justification Thesis

is true it does not meet the presumption in favor of fine-grained individuation. Even if we

agree that justification via a just basic structure is appropriate, it’s unclear why this approach

meets the presumption. In order to show this, a proponent of coarse-grained individuation

must demonstrate that fine-grained individuation is either undesirable or unattainable. That is,

the Basic Structure Argument must establish either that we have good reason not to apply the

32 Quong, Liberalism, 275. 33 Gaus, Order, 275. 34 Ibid. 490-495. 15

PJP to individual laws, or that for one reason or another the PJP cannot properly be applied to

individual laws The Basic Structure Argument demonstrates neither.35

The Basic Interests Argument

The Basic Interests Argument is an elaboration on the Basic Structure Argument. The

Basic Interests Argument starts with the claim that the basic structure aims for a fair

distribution of primary goods - goods that all citizens need to pursue their reasonable

comprehensive conceptions of the good.36 The distribution of primary goods by a just basic structure assures that the basic interests of all citizens are met. Further, the primary goods help define the content of public reason. Public reason is the set of reasons members may appeal to in making political decisions.37 According to the Basic Interests Argument, appeal

to public reasons involves appeal to the basic interests of all citizens and the goods needed to

meet them. Thus the non-basic interests of citizens cannot be the bases of public reasons. And

so public reason is only appropriate at the level of the basic structure. So long as conflicts

regarding the non-basic interests of citizens are resolved by procedures that are part of a basic structure that assures their basic interests are met, those resolutions are legitimate. Thus the

Basic Interest Argument explains why it’s inappropriate for the PJP to apply to

non-fundamental institutions and policies: public reasons do not properly apply to conflicts of non-basic interests.38

Quong objects that the basic/non-basic interest distinction does not adequately track

the appropriateness of applying the PJP. Quong offers an example: a city must decide

35 Quong, Liberalism, 275-278. Quong uses the difference principle as an example. While the difference principle is a principle of just distribution, the principle is not suitable to regulate all kinds of distributions. For example, the distribution of chores within a family should not be regulated by the difference principle. This is because enforcing the difference principle within a family would violate the privacy or freedom of that family regarding how they distribute household duties. Application of the difference principle is inappropriate for these kinds of familial distributions. So, by analogy, if narrow scope proponents must demonstrate why it would not be appropriate or desirable for the PJP to apply to non-essential political institutions and policies. 36 For primary goods, see Rawls, Political, 178-187. For conceptions of the good, see Rawls, Political, 19-20. 37 Ibid. 212-213. 38 Quong, Liberalism, 279-280. For someone who endorses this argument, see de Marneffe, “Liberalism”, 258-60. 16

whether to spend funds on an art museum or a football stadium. We assume that the basic interests of everyone in the city are met; the example concerns only a conflict of non-basic interests. Those who support the football stadium offer two very public-looking reasons to support their position:

(1) Its i only fair that they get a football stadium, since the city already has an art

museum.

(2) Constructing a football stadium would be an economic boon for the city by

creating space for a local professional football team.

The art aficionados, in contrast, defend the construction of another art museum by appeal to

purely perfectionist reasons: art is inherently good, and city-goers will be made better if they

have access to more art.

Quong observes that this conflict of non-basic interests seems plainly resolvable by appeal to public reasons. The football fans appeal to public reasons of fairness and economic

benefit for all, while the art aficionados appeal only to perfectionist reasons. As such,

building a football stadium seems justified, while building a second art museum does not. But according to the view articulated by the Basic Interests Argument, the legislative result in the

example is perfectly legitimate. But, Quong objects, quintessential public reasons seem to tell

against the legislative result. This gives us good reason to think the Basic Interest Argument

is flawed: the PJP’s applicability is not adequately tracked by the basic/non-basic interests

distinction.39

The Argument from Completeness

The Argument from Completeness contends that coarse-grained individuation is

acceptable because public reason must have determinate content, and that is only possible at

the level of the basic structure.40 The argument contends that public reason must be complete

39 Quong, Liberalism, 280-281. 40 See Scanlon, “Rawls”, 163. 17

- that is, public reason must have a determinate content of values such that it is able to answer

all the questions to which it is applied. Public reason is indeterminate when the political

values that constitute public reasons cannot provide determinate answers to political

questions. For public reason to be determinate requires agreement not only on the set of

political values, but on the ordering and weight of those values. But, the argument goes, this

agreement is possible only at the level of the basic structure. Since public reason is only

‘complete’ at this fundamental level, the PJP only applies at this level. When confronting non-essential political questions, citizens will be unable to agree on the ordering and weight of political values. Public reason will be incomplete at that level, and so the PJP cannot apply to those questions.

Quong offers three critiques of the Argument from Completeness. First, the argument

supposes disagreements about the demands of justice - as reflected in different orderings and

weightings of political values - justifies not abiding by public reason in these cases. But this

is far from obvious: even in the face of disagreements about the just, the ideal of public

reason is still worth pursuing. If so, it’s not clear why public justification should only apply at

the constitutional level.41

Second, the argument relies on the assumption that predictable disagreements about

the just necessitate that non-fundamental political questions cannot be resolved by appeal to

public reason. But Quong insists the only way to determine whether non-essential political

questions can be resolved by appeal to public reason is to try to resolve those non-essential

political questions by appeal to public reasons. It may turn out that public reason is

indeterminate in those cases. But that does not undermine the presumption in favor of

fine-grained individuation. It is only after trying and failing to resolve a non-essential

41 Quong, Liberalism, 283. 18

political problem through public reason that we can narrow the scope of the PJP to exclude that problem.42

Finally, the Argument from Completeness turns on the belief that incompleteness in

public reason is a serious problem that must be avoided. But Quong is not convinced that it is.

He considers two ways in which an account of public reasons may be incomplete. First,

public reasons may be indeterminate: they offer no determinate guidance on some political

question(s). Quong’s fine-grained view is compatible with public reason’s indeterminacy.

The presumption only demands we try to justify all exercises of political power by appeal to

public reasons.43 Further, Quong suspects much of the worry about indeterminacy is motivated by the concern that we must show the determinacy of public reasons up front. But

Quong contends it’s no sin to leave public reason to be partially filled out when in the thick of political deliberation: “although public reason’s content is fixed..., its detailed content cannot be determined in advance of the process of public reasoning over particular cases in

all their complexity.”44

Public reason may also be incomplete if it is inconclusive. Public reason is

inconclusive if it can be used to justify multiple and conflicting solutions to political

problems. Quong contends that justifying laws by appeal to a sometimes-inconclusive set of public reasons is still superior to allowing citizens to appeal to whatever comprehensive reasons they please to justify use of political power.45 So appeals to the inconclusiveness of

public reason does not undermine the presumption in favor of fine-grained individuation.

Watson and Hartley also address worries about the completeness of public reason.

Against the concern that public reason may be inconclusive, they contend that this is not a worry. Public justification does not turn on agreement about which laws are supported by

42 Ibid. 283-285. 43 Ibid. 286. 44 Ibid. 285. 45 Ibid. 286-287. 19 which public reasons. It is enough that we have some mechanism (say, voting) to select

among reasonable laws justified by appeal to public reasons. They are more worried about

concerns of indeterminacy. However, they believe public reason can sufficiently constrain

potential policy outcomes such that public reason will lead to reasonable outcomes in

supposed indeterminate cases (e.g. abortion).46

Watson and Hartley’s Relationship Argument for Coarse-Grained Individuation

Lori Watson and Christie Hartley present what I will call a Relationship Argument in

favor of coarse-grained issue individuation - individuation at the level of constitutional

essentials and matters of basic justice. They ground their argument in their account of the

moral foundations of public reason liberalism, which is “a principle of respect for persons as

free and equal citizens in a constitutional democracy.”47 For them, the moral foundation of

public reason liberalism is a social relationship of mutual respect between free and equal

persons. It is this relationship that grounds the requirement of public justification.48

According to Watson and Hartley, only laws that determine this fundamental relationship

between persons stand in need of public justification. As they say:

Public reason is the reason of persons as citizens who aim to secure and interpret this

relationship through public deliberation…. The scope of public reason applies to just

those issues in which the nature of the political relationship of citizens in a

constitutional democratic regime is at stake, and it does not apply to other issues.49

So when matters of basic justice and constitutional essentials are at stake, what’s at stake is the fundamental political relationship between persons that provides the moral foundation of public reason. For non-essential laws, however, this relationship is not at stake. Thus the requirement of public justification does not apply. Importantly, Watson and Hartley note, this

46 Watson and Hartley, Equal, 85-7. 47 Ibid. 67. 48 Ibid. 45-49. 49 Ibid. 68. 20

is not merely a version of the Basic Interests Argument considered in the previous subsection.

Their theory of political liberalism is a theory of relational equality, and so equality in the

distribution of essential political goods is of secondary concern.50

I find this Relationship Argument unconvincing. The argument turns on the claim that

public reason must only apply on issues where the fundamental relationship of citizens is at stake. Surely it is important for public reason to apply to these cases. This aligns with Watson

and Hartley’s broader conception of coercion, which involves not just individual

threat-backed prescriptions, but the way in which the basic structure of society shapes our life

choices and prospects.51 But that such issues are fundamental to the moral relationship

between citizens does not imply that this important moral relationship is not present for

non-fundamental issues. Put another way, even if we are fundamentally concerned with the

way the basic structure of society shapes the relationships of citizens as free and equal, this

does not demonstrate that the relationship is not at stake with less fundamental issues.

Individual cases where the coercive power of the state is being used certainly involve the

relationship of citizens as free and equal, even if the fundamental nature of that relationship is

not in question. And wherever that fundamental relationship is involved - as is the case with

narrower cases of coercion - individuals may rightly ask for justification. Just because we

take a more expansive view of coercion doesn’t mean the narrower forms of coercion must be

neglected. If the relationship can be realized at the level of individual law, public justification

plausibly applies at that level. As such, it is not necessary or desirable to limit the PJP to coarse-grained articulations of law on relationship grounds. Again, the presumption in favor

of fine-grained individuation has not been met.

Watson and Hartley try to sidestep this concern by noting that in cases like Quong’s

stadium/art museum case the reasons involved are not political reasons, but reasons of

50 Ibid. 70. 51 Ibid. 60-1. 21

personal interest. And while these issues may affect one’s ability to pursue one’s conception

of the good life, the issue is not central to one’s status as a citizen.52 This response is inadequate. First, it is unclear to me how appeals to fairness and economic benefit can be construed as non-political, as merely appeals to personal interest. While certainly personal interests are at stake in cases like Quong’s, it seems to just as plausibly involve the extent to which one’s society allows one to pursue a conception of the good. The fundamental character of citizenship may not be at stake in such cases. But as suggested before, certainly appeals to fairness and economic benefit are appealing to that relationship even in this non-fundamental case. And if such a relationship is involved even in non-fundamental cases, the reasoning seems quintessentially political. The reasons are public reasons. So it seems as though appeals to the fundamental relationship between citizens does not adequately explain how the presumption in favor of fine-grained individuation is to be met.

Watson and Hartley do provide an argument against the presumption in favor of

fine-grained individuation. They note that democratic procedures, if legitimate and endorsed

by citizens, can confer public justification on at least some issues. As such, Quong’s concerns

are overstated. Even if the demands of public reason are not applied to all laws, it does not

follow that some laws will not be publicly justified.53

But this is itself too quick. For it is equally plausible to argue that democratic procedures are

merely a way of selecting between different publicly justified options, when no one of those

options is victoriously justified. So it is not the case that voting rules simply confer public

justification. Rather, they confer victorious justification to one option among a set of options

that individuals already have sufficient reason to endorse. Watson and Hartley themselves

seem to realize this, noting that voting cannot confer justification in cases involving the

52 Ibid. 68-9. 53 Ibid. 67. 22

conditions essential to free and equal citizenship.54 But as I’ve argued, that this requirement should apply only to conditions essential to such citizenship seems ill-motivated. It seems more plausible, to me, that it is a general condition on the options over which citizens vote.

As such, mere appeal to voting procedures is not sufficient to overturn the presumption.

Gaus’s Justificatory Dependence Principle

In this section I consider Gaus’s fine-grained model of issue individuation, embodied by

his Justificatory Dependence Principle. I will first set out the Principle, explaining the

concepts key to understanding the Principle. I will then consider Enoch’s criticisms of the

Principle and its application by Gaus. Then I will add my own criticism to Enoch’s. Finally, I

will spell out Lister’s zoom problem for Gaus’s Principle, and defend the Principle against the problem.

The Principle

As stated in the previous section, Gaus endorses a presumption that all coercive laws

must be publicly justified independently of one another. However, Gaus also introduces that

worry that political issues - whether fundamental or non-fundamental - may be subject to

“strong interactive effects” regarding their justification. For example, the justification of laws

for the expenditure of funds on some public project will depend in part on whether a law to

fund that expenditure can be justified.55 This leads Gaus to formulate a principle of

Justificatory Dependence:

Legislation x has justificatory dependence on legislative issue y if and only if:

(1) there is some Member of the Public Alf, such that for Alf, if Alf makes

his individual decision about the eligible members of {x1...xn} in the

absence of considering y, his eligible set is {x1...xi} whereas if he

54 Ibid. 67. 55 Gaus, Order, 495-7. 23

considers his y eligible set, his x eligible set becomes a different set

{x1...xk};

(2) The socially eligible set differs depending on whether Alf’s set is

56 {x1...xi} or {x1...xk}.

The first condition of the principle requires that consideration of one law affect the eligible

set of another law for at least one member of the public - an idealized agent within the

deliberative model.57 A member of the public’s eligible set is the set of all laws that member

prefers to blameless liberty on the issue in question. Blameless liberty on some legal issue regarding φ-ing is the state whereby one has neither a duty to φ nor a duty to refrain from

φ-ing. As such, the default is that no one is under the legal authority of anyone else on the issue.58 So two issues are dependent only if consideration of the one issue alters the eligible

set of the other issue.

But importantly this is not sufficient to establish dependence. As per the second

condition, the member’s different eligible sets must alter the socially eligible set. The socially

eligible set of laws (SES) is the set of laws all members of the public rank as preferred to a

blameless liberty on the issue in question.59 The SES is part of Gaus’s model of what

members of the public have sufficient reason to endorse.60 Importantly, the SES is not a

ranking of proposals from a social perspective. Gaus believes any social aggregation function will be too controversial for members of the public to agree on.61 So the SES has no optimal

element, but is rather an indeterminate set of proposals all of which are preferred by all members of the public to any proposals outside the set.62

56 Ibid. 495. 57 For more on idealized members of the public, see ibid. 276-9. 58 Ibid. 316-321. Here I modify Gaus to align with my focus on laws rather than moral norms. 59 Ibid.: 322-3. 60 Ibid. 308-9. 61 Ibid. 327-330. 62 Ibid. 324. 24

If the second condition is not met then even if some individual member treats the issues

as dependent, this does not alter what all members have sufficient reason to endorse. If this is

the case, then Gaus contends we should not treat the legislative issues as justificatorily

dependent.

Challenges by Enoch

David Enoch offers three critiques of Gaus’s Justificatory Dependence Principle.63 His

first criticism is that the Justificatory Dependence Principle - which analyzes individuation in

terms of the rankability of alternatives on issues - may be ill-motivated. The point of policy

individuation, Enoch claims, is to assure that public justification does not output

contradictory results. This is because policy individuation determines how large or small a

bundle of coercive laws must be justified together. But Enoch is skeptical that a member of

the public’s ability to rank alternatives properly tracks what must be publicly justified.64

Enoch’s second critique is that the problem of policy individuation may lead to holism.

Gaus’s principle contends that two issues dependent on each other in a way that affects the socially eligible set of alternatives must be justified together. But, Enoch argues, whether or not two issues are dependent on one another may in turn depend on some third issue. And of

course, this argument may apply to a fourth issue, a fifth, etc. Enoch worries that the potential dependence relations between issues may be so complex that coercive law must be justified holistically - a maximally coarse-grained method of policy individuation. But then, Enoch contends, the baseline of blameless liberty to which policies must be compared would approximate a Hobbesian state of nature. Compared to this alternative, members of the public would not object to most any kind of political arrangement - even dictatorship.

Finally, Enoch argues that Gaus’s Principle does not lead to the conclusions which Gaus expects it will. He considers several examples where he believes Gaus attempts to individuate

63 Enoch, “Disorder”, 153-155. 64 Ibid. 154. 25 policies without appealing to his principle - parsing which issues are relevant in a way that

lets him reach his preferred conclusions. To take one such example, Enoch considers Gaus’s

argument against socialism. According to this argument, there is an asymmetry between

classical liberals on the one hand and socialists on the other: while classical liberals will have

defeaters65 for the redistributive state, socialists will prefer even classical liberal institutions

(e.g. a small welfare state) over having no social justice laws at all. That is, while classical liberals will have accessible reasons that render the redistributive state ineligible for public

justification, socialists will have no such defeaters for the small welfare state. However,

Enoch notes that it is not obvious that the relevant issue at play when considering the

redistributive state is social justice. Why not property rights, or the existence of the state?

Gaus does not apply his Justificatory Dependence Principle to separate out these issues. And

this matters. If, for example, the relevant issue is that of property rights, classical liberals may

well prefer a redistributive state to having no protections for property rights whatsoever. This

would perhaps render socialism (or at least some form of redistributive egalitarianism)

eligible. Enoch worries that these examples indicate a bigger problem - that Gaus’s theory

has not developed sufficient resources to resolve the problem of policy individuation. He

questions whether the Justificatory Dependence Principle could provide principled answers

about how to individuate issues.

Elaborating on Enoch’s Challenges

In the previous subsection we reviewed some of Enoch’s concerns about Gaus’s

Justificatory Dependence Principle. While I believe the Justificatory Dependence Principle

provides some useful insights into when the presumption in favor of fine-grained

individuation is met, I believe Enoch’s skepticism is warranted. To see why, I want to try

and apply the Justificatory Dependence Principle to a case because part of the contention

65 To have a defeater for a policy is to have an accessible reason that tells against the policy such that it renders the policy ineligible for public justification. In Gaus’s parlance, blameless liberty on an issue is preferred to a defeated policy on the same issue. 26

between Gaus and Enoch concerns how the Justificatory Dependence Principle is to be

applied. Let’s consider a case both Gaus and Enoch utilize. Member of the Public Alf is a

thrill-seeker, and so prefers roads without speed limits to roads with speed limits. However,

Alf also prefers roads with speed limits to having no roads at all. There are two issues at play

here: speed-limit laws, and road provision. If these issues are independent, then it seems like

Alf will have defeaters for speed limit laws. If the issues are dependent, then Alf would have

no such defeater. Gaus claims the latter situation will obtain.66

To start, we must define Alf’s eligible sets for both issues. On the speed limit issue,

Alf’s eligible set is empty: he prefers blameless liberty regarding speed over any speed limit

law. On the road issue, the contours of the set are less clear. But I take it the best

interpretation of Alf’s preference is that his eligible set regarding road creation is a singleton:

he prefers public provision of roads to a blameless liberty where individuals are free to create

or not create roads.67

Alf’s rankings of alternatives do not meet the Justificatory Dependence Principle. Alf

prefers all policy outcomes where no speed limits are established, and prefers all outcomes

where roads are publicly provided. Alf’s preferences do not change when the issues are

considered together. He does not treat the issues as dependent. So the first condition of the

Principle is not met. Gaus cannot reach his conclusion with Alf’s preferences alone.

Consider another member, Betty. Betty always prefers having speed limits to having no

speed limits. She also prefers public provision of roads when speed limits are established. But

importantly, if a speed limit would not be publicly justified, Betty’s preferences regarding

66 Gaus, Order, 538, Enoch, “Disorder”, 153. 67 In this case, it seems like what Alf prefers is the public provision of roads, not just that there may be roads. This is important because “having no roads at all” may mean one of two things. First, it could mean a general prohibition for the creation of roads. Second, it could mean blameless liberty regarding road creation: people can build roads if they want, but MPs are morally blameless if they fail to create roads. If Alf prefers public provision of roads to a prohibition on roads the eligible set may still be empty if he prefers blameless liberty to public provision. After all, roads may still be created in the condition of blameless liberty, and Alf may prefer taking his chances than dealing with the public creation of roads. 27

road provision switch. If no speed limit is justified, Betty prefers roads not be publicly funded.

For Betty, the issue of public funding for roads depends on the speed limits issue.

So, for Betty, the first condition of the Justificatory Dependence Principle is met. Her

profile also meets the second condition: changes in her eligible set would change the socially eligible set. This means these laws must be justified together. Alf will have defeaters for any speed limit laws, since he prefers blameless liberty to having such laws. But since Alf has defeaters for all speed limit laws, Betty has defeaters for the public provision of roads. This is because, if no speed limits are justified, and for Betty the provision issue depends on the speed limit issue, she will prefer blameless liberty to the public provision of roads. And neither Alf nor Betty will settle for the case where there are speed limits but no provision of roads, since for both of them that case is Pareto-defeated: Betty would prefer speed limits with road provision, and Alf would prefer no speed limits with road provision. This leaves only one justificatory option available: blameless liberty both for speed limits and for public provision of roads. The libertarian result obtains, contrary to Gaus’s expectations.

However, this reading might be unfair to Gaus. After all, Gaus implies there could be a number of different speed limit laws.68 In the previous example, the issues were parsed in a binary fashion: either there would be a law regarding speed limits, or there would be no such law. However, the issues could be parsed continuously, such that there is a spectrum of laws between no speed limits and rather high speed limits, with more moderate laws in between.

This holds true for the provision issue as well.

Correspondingly, Alf and Betty’s preference profiles may look different. In this modified case, Alf prefers public provision in all cases, and always prefers higher speed limits. Betty, in contrast, favors lower speed limits. She also favors public provision, but only so long as there are some speed limits (even fairly high ones). On this parsing of the option space,

68 Gaus, Order, 538. 28

Gaus’s result does obtain. While not optimal, the case where speed limits are high and roads

are publicly funded will be in Alf’s eligible set. This is also true of Betty: so long as there are

some speed limits, she is willing to assent to the public provision of roads. Thus, introducing

a more fine-grained reading of the policies in question allows us to reach Gaus’s conclusion.

Both of these examples are plausible. But Gaus’s Justificatory Dependence Principle

provides no guidance as to which of the two we should prefer. Which is the appropriate way

to carve up issues, if either of them is the right way at all? I believe this analysis indicates that

Enoch is right to be skeptical about Gaus’s Justificatory Dependence Principle. First, as

Enoch notes, it tells us nothing about whether or not, in this case, road provision and speed limits are the primary or only issues at play. Second, it gives us little guidance as to how we model the policies over which members have preferences. For example, it doesn’t tell us whether to treat our models of policies as binary (either there is a policy, or their isn’t) or as continuous (there are policies that are greater or lesser than others along some dimension), and when and why we should model policies in those diverse ways.

These problems constitute issues for the Justificatory Dependence Principle in two respects. First, it indicates that Gaus’s formalism is unable to guide theorists who are trying

to solve the problem of policy individuation. We require some further explanation to resolve

Enoch’s worries about how the principle is actually applied, e.g. to explain why policies may be treated as binary in some cases and continuous in other cases. It is also unclear whether

Gaus’s formal principle provides sufficient motivation to believe the presumption in favor of fine-grained individuation is met. The Justificatory Dependence principle is supposed to convince us that the presumption is met in some cases. I do not believe it can provide sufficient motivation without further elaboration. We need some further explanation as to why members will rank issues in such a way that those issues will depend on one another.

The Justificatory Dependence Principle amounts only to the claim that we must aggregate 29

policies when members of the public aggregate them in a socially relevant way. Put another

way, Gaus’s Principle is intensionally inadequate. This is not to say the Justificatory

Dependence Principle tells us nothing. Gaus has a talent for taking the diverse elements of his

Deliberative Model and showing how they interrelate to solve complex theoretic problems.

However, in this case Gaus’s fondness for formalisms is as much a detriment as a strength.

Challenges by Lister

To motivate Lister’s critique of Gausian issue individuation, we may consider two cases

of possible policy dependence:

Property: For purposes of justification, should we consider laws regarding property

rightss a dependent on laws regarding resource redistribution?

Murder: For purposes of justification, should we consider laws regarding murder as

dependent on laws regarding abortion?69

Standard public reason liberals will want to answer yes to Property and no to Murder - at

least, these will generally strike them as the intuitively appealing results. Part of the problem of issue individuation is specifying criteria of individuation that get the balance just right, and are not ad hoc. If our principle of issue individuation generates too much dependence, we might get a yes-answer in the case of Murder: we can’t justify laws against murder without settling the issue of to what extent, if any, abortion will be permitted. In contrast, if the principle generates too little dependence, we end up with a no-answer to Property: property rights are in no way limited by, for examples, concerns of egalitarian redistribution.

69 Lister uses these examples in Lister, Public, ch. 3.2. 30

The first result - generating too much dependence - runs the risk of perfectionism. That is, it risks allowing the public justification of policies that can only be justified by appeal to controversial conceptions of the good. If laws regarding murder and abortion must be justified together, agents’ need for laws against murder may give them sufficient reason to endorse abortion policies that can only be justified by appeal to perfectionist reasons -

reasons only derivable from controversial conceptions of the good. As we saw in the first

section, this is because the baseline against which laws must be compared becomes broader the more dependence there is between laws. Put another way, the more laws depend on one another, the more closely blameless liberty approximates anarchism. At the extreme (as

Enoch notes), blameless liberty may approximate a Hobbesian state of nature - compared to which almost any legal system will look good to members of the public. But even if dependence is not so extreme, too much dependence allows blameless liberty to be so broad that even perfectionist laws would be consistently permitted into the eligible set.

The second result, on the other hand, runs the risk of libertarian dictatorship. If policies

are individuated too fine-grainedly, then every single increment of coercion would have to be

publicly justified. But libertarians will have defeaters for all policies more coercive than the

minimum; they will lack sufficient reason to endorse all but the least-coercive laws. Thus, the

eligible set of alternatives would include only optimal libertarian policies. Libertarian

sensitivity to coercion would essentially allow libertarian members of the public to dictate the

elements of the eligible set. This would render the solution to the problem of issue 31

individuation objectionably libertarian: it would essentially consistently guarantee the

justification of libertarian policies against any other policy.

This is Lister’s zoom problem. If we zoom in too much (i.e. generate lots of

independence), we risk libertarian dictatorship; if we zoom out too much (i.e. generate lots of

dependence), we risk perfectionism. For Gaus to succeed, he must set the zoom just right.

The libertarian dictatorship horn of the zoom problem is particularly worrying for Gaus.

This is because Gaus’s model of policies has a classical liberal tilt. That is, the elements of

the eligible set will be strongly influenced by members of the public who view the costs of

coercion as a constantly increasing function. This is because, given their views on coercion,

they will be the first members to conclude that the coercion costs of any given policy are not outweighed by the benefits. Importantly, Gaus does not believe that classical liberals will be

dictators on his model. While such members may shape the eligible set of alternatives, the set

will still include policies that classical liberals will view as non-optimal. So classical liberals will have sufficient reason to endorse even non-classical liberal policies. Further, the importance of rights in Gaus’s order of justification makes it so that even fairly coercive, large states that protect those rights are preferable.70 However, as we saw in the previous subsection, whether or not Gaus’s Justificatory Dependence Principle generates libertarian results depends on how the grain of policies is specified. And the Principle gives us no guidance as to how this is to be done. So whether Gaus’s account will generate consistently libertarian results remains an open question.

Lister considers two different methods for specifying the appropriate grain of

individuation. The first method requires justifying coercive policies against all incrementally less coercive policies. This incrementalist approach requires unanimity on proposals whose

70 Ibid. 497-508. 32

coercive costs are justified by their benefits for all members of the public, while allowing

disagreement between members about how coercive a proposal is, or how much coercion is

justified by what benefits.71

Lister argues the incrementalist approach confronts a considerable problem. If

members of the public disagree about the measurement of coercion, there will be widespread

disagreement about what laws are admissible. For example, Lister points out that there will

be disagreement about whether the coerciveness of laws is additive. Some members may

assess the total coercive costs of two laws by adding together the coercive costs of both laws

taken individually. However, other members will claim coercion is not additive in some cases.

Logically connected laws may have interactive effects such that the total coercion of

aggregated laws will not equal the individual coercive costs of its constituent parts.72

So reasonable disagreement between members of the public will include reasonable disagreement about the coercive costs of laws, both individually and in aggregate. But since assessments of coercion will affect dependence between laws, this will lead to disagreements about the appropriate grain of issue individuation. This, in turn, means members will disagree

about what proposals are eligible. The result approaches - or perhaps reaches - philosophical

anarchism: since members cannot agree on which proposals are eligible, no proposals can be justified to all members.73 This is an unpalatable result. But even if this result can be avoided the incrementalist method allows the set of eligible policies to be defined by the member with the most fine-grained, minimally reasonable conception of coercion costs. In essence, the most minimally reasonable libertarian gets to dictate the eligible set of proposals; such a member will have defeaters for even minimally more coercive policies than their preferred policy.74

71 Ibid. 86-87, 90. 72 Ibid. 99-100. 73 Ibid. 100-101. 74 Ibid. 86. 33

Perhaps the non-incrementalist method is more promising. The non-incrementalist

method involves individuating policies in some way other than by each individual unit of

coercion. For example, Lister proposes a principle of maximal disaggregation: policies

should be treated as independent whenever possible. Lister’s principle of maximal

disaggregation mimics the first condition of Gaus’s Justificatory Dependence principle:

legislative issues can be dependent only if consideration of one issue leads to ambiguity in

the ranking of the other issue. Thus, we treat laws as dependent on one another when

members rankings are ambiguous, but treat them as independent when rankings are

unambiguous. This method of individuation makes no appeal to how coercive any given

policy is. It is the rankings of members of the public that establish how policies are

individuated.

Lister highlights two problems confronting a maximal disaggregation principle. The first

is that the feasibility of disaggregation will be sensitive to (a) what preference profiles count

as reasonable, and (b) how the option space is defined. The feasibility of disaggregation requires that all members of the public have unambiguous preference profiles when the issues

in question are treated as independent; if issues are dependent, disaggregation is infeasible,

and so we aggregate. However, the set of logically possible preference profiles skews in favor

of aggregation.75 The majority of preference profiles are ambiguous as to how they rank issues considered together. This means that a majority of the time we will treat issues as dependent.

If all logically possible preference profiles are reasonable, Lister argues the maximal

disaggregation principle will skew towards perfectionist policies. There are logically more profiles that require aggregation than disaggregation, and so disaggregation will be infeasible

more often than not. Given the majority of logically possible preference profiles favor

75 Ibid. 94-95. 34

aggregation, we will often end up treating issues as dependent. But the more we treat issues

as dependent, the more expansive blameless liberty becomes in those cases (approaching the

state of nature at the extreme). The more expansive blameless liberty becomes, the more unattractive it becomes. And the more unattractive blameless liberty becomes, the more attractive perfectionist, draconian, or dictatorial laws may appear in comparison. This means

the more we aggregate the more likely perfectionist or draconian laws will be preferable to no

laws at all, and so members will have sufficient reason to endorse such laws.

This problem could be mitigated if some of the logically possible preference profiles are unreasonable. But this confronts us with complicated questions about what preference profiles would be unreasonable for which issues, and why. Lister claims that given these problems maximal disaggregation principles will disaggregate too much. A maximal disaggregation principle will have us disaggregate whenever feasible, even if this would make the resulting scheme of policies more coercive. In contrast, the incremental method would require a more-coercive disaggregation of policies to be justified not just against a non-coercive baseline, but against a less coercive aggregation of those policies. In this way non-incremental and incremental methods for individuation diverge. Between the two options, if we are concerned with justifying coercion, Lister claims we should prefer the incrementalist approach. This is because the incrementalist method requires each unit of coercion be justified. Non-incrementalist methods are to be rejected just because they may individuate issues such that some units of coercion will not stand in need of a unique public justification. Incrementalism, Lister believes, is the way to go for issue individuation.

However, this leads right back to the problem of the libertarian dictator. If each unit of coercion must be justified, libertarians will have defeaters for all more-than-minimally coercive policies.76

76 Ibid. 97-98. 35 A Defense of Gaus against Lister’s Challenges

Against Approximating Incrementalism

Lister’s argument in the previous section is in part a disjunctive syllogism. Policy

must be individuated either incrementally or non-incrementally; non-incremental

individuation should be rejected because we should prefer incrementalism; and incremental

individuation should be rejected because it leads to dictatorship or anarchy. And Gaus’s

Justificatory Dependence Principle is a non-incrementalist individuation principle. It

individuates laws not by appeal to the amount of coercion each law requires, but rather on

how considerations of one law affect the rankings of other laws. And so, per Lister’s

argument, the Justificatory Dependence Principle should be rejected, since incrementalist individuation is to be preferred over non-incrementalist individuation.

Lister’s argument rests on the assumption that, even if we do not use an incrementalist

method of individuation, we should certainly approximate its results. Lister believes we

should reject non-incrementalist accounts of individuation just because they will disaggregate

in ways that make potentially justified policies more coercive than if they were parsed in

other ways. But it’s unclear whether public-reason liberals should aim to approximate the

results of the incrementalist approach. It amounts to the claim that the individuation of issues

should be largely predictable along a single dimension of assessment - how coercive a law is.

Granted, the selected dimension encapsulates a central tenet of liberal thought: coercing

people requires justification. But this approach to issue individuation strikes me as

over-simplistic. There are many different liberal values besides non-coercion - equality and

fairness, for example. It’s in this context that we must establish some way of individuating

issues. So it should be no surprise that, when we individuate issues, we will find ourselves justifying laws that are both (a) more coercive than other competing methods for parsing laws,

but (b) do more to promote equality or fairness than those competing parsings. The 36 contention that individuation will closely approximate only one of the liberal values seems

naive.

Lister’s worry is still a real one: if our method for individuating policies starts predictably generating thoroughly draconian outcomes in an expansive number of cases, we

have reason to think things have gone wrong. But that a principle of public justification will generate complex results should not be surprising. We should not be wedded to one

dimension of assessment to the broad exclusion of others when trying to carve up policies.

Against the Infeasibility of Disaggregation

The perfectionist horn of the zoom problem contends that, if a method of issue

individuation generates too much dependence between laws, perfectionist laws may make their way into the eligible set of alternatives. The more policies depend on one another, the

more likely it is that policies will be included in the eligible set of alternatives that can only

be justified by appeal to controversial conceptions of the good. As we saw in the previous

subsection, Lister thinks non-incrementalist individuation faces this problem because

disaggregation will very often be infeasible. Dependence will be the norm, and so we will

often find perfectionist policies sneaking their way into the eligible set of alternatives.

However, Lister’s argument does not distinguish between two different kinds of

dependence relations. The first is the dependence relation between issues that stand in the

same position in the order of justification. These issues depend on one another in that both have to be justified at the same time. I take it this is often what theorists have in mind when

they discuss dependence between issues, including Lister’s worries about aggregation.

However, there may also be dependence relations between issues that stand at different

positions in the order of justification. As Gaus notes, blameless liberty on some issues is

determined in part by a “protective perimeter” of already justified law.77 That is, laws

77 Gaus, Order, 317-8. 37

justified prior in the order of justification will affect what blameless liberty looks like for

issues later in the order of justification. This, in turn, means that the justification of laws later

in the ordering will depend, in some part, on the justification of laws prior to them in the

ordering. However, these dependent issues needn’t be justified at once - we needn’t aggregate

them.

The aggregation problems that Lister seems to have in mind only arise in the former

cases of dependence - when the issues must be settled at the same time, and so aggregated

together into a single instance of public justification. However, in the latter dependence cases,

there is a clear order of justification such that perfectionist policies will not sneak in through

aggregation. Return to the Murder case from the previous section. It is plausible that laws

regarding murder and laws regarding abortion may be justificatorily dependent. However, it

is also plausible that laws regarding abortion will depend for their justification on laws regarding murder, but not vice versa. Laws against murder will be prior in the order of justification to laws regarding abortion. As such, laws regarding abortion are not aggregated into laws regarding murder, and so we needn’t worry about perfectionist abortion policy making it into the eligible set of alternatives regarding the issue of murder.

This helps alleviate the problems Lister articulates about maximal disaggregation.

Lister’s contention turns on the claim that the logically possible preference profiles favor aggregation. However, the logically possible preference profiles do not in fact favor the worrying aggregation Lister has in mind. Most of the logically possible preference profiles will involve either (a) no dependence of issues at all, or (b) the sort of dependence canvased above - the dependence of issues at different positions in the order of justification. As such, on non-incrementalist accounts of issue individuation disaggregation will very often be feasible. This means that the perfectionist horn of Lister’s dilemma can be much more easily avoided. 38

An Alternative? Lister’s Reasons-for-Decisions Model

Lister offers an alternative, reasons-for-decisions model of public justification. He

believes this model avoids the problem of issue individuation.78 In this section I will consider

Lister’s model. After articulating the reasons-for-decisions model, I will canvas criticisms of

the model leveled by Vallier and Billingham. Finally, I will piggyback off of Billingham’s

criticisms to create a dilemma for the reasons-for-decisions model.

Lister’s Model

Lister offers an alternative model of public justification, which he calls a

reasons-for-decisions model. On this model of public justification, agents must reach

agreement on a set of reasons pertinent to justifying policy on some issue. If there is not unanimity on some reason, both that reason and its denial are ruled out as relevant reasons in

favor of or against policy.79 Lister adopts a reasonable rejectability standard for reasons: a

reason may be a public reason only if no member of the public could reasonably reject it.

Reasonable rejectability is understood in terms of content: a reason is reasonably rejectable if some members of the public cannot agree on a substantial degree of the reason’s content. In

contrast, there is unanimity on a reason when there is agreement on a substantial degree of

shared content for that reason. That is, disagreements about interpretations of values are

bounded by substantial agreement on about how to interpret said value. If a reason is subject

to agreement, then any reasonable application of that reason is admissible as a public reason

on the issue in question. While interpretations of a reason will differ in some respects, they

are reasonable in virtue of having the shared content of the reason to which all agents agree.80

78 Lister, Public, 101. 79 Ibid. 15. 80 Ibid. 101-3. 39 Against Lister’s Model

Vallier and Billingham vs. Lister

Both Kevin Vallier and Paul Billingham have criticized Lister’s reasons-for-decisions

model. Vallier, on the one hand, observes that the justificatory procedure of the

reasons-for-decisions model occurs in three steps:

Diverse reasons to accept → inconclusive shared justificatory reasons to accept →

coercive laws and policies

As we saw in the previous subsection, the reasons that figure into the justification of coercive

policies must be subject to agreement by agents with diverse reasons. However, Vallier

argues this implies coercive laws can be publicly justified even when some members of the

public believe there is no conclusive justification for such laws. So even if some members

believe the balance of shared reasons for decisions is against some coercive law, this is not

sufficient to make such a coercive law publicly unjustifiable.81

Billingham focuses on the reasonable rejectability standard for reasons that Lister

adopts. Recall reasonable rejectability is distinguished by Lister in terms of content: a reason

is reasonably rejectable if members cannot agree on a substantial degree of shared content for

that reason. Billingham contends that this appeal to shared content creates a similar zoom

problem to the one Lister poses for coercion models. If the shared content called for is too

abstract, interpretations of values that some members will see as having little to no value may,

at the same time, be reasons appeal to which can justify laws and policies that will coerce

them. We could weaken the shared content demand to the other extreme, demanding

higher-order unanimity on specific interpretations of values and their relative weights

compared to other values. But this would plausibly result in their being few, if any, reasons

that could serve to justify coercive political decisions.82

81 Vallier, “Public”. 82 Billingham, “Political”, 22-23. 40

Against Lister’s Reasons-for-Decisions-Model: A Dilemma

Billingham’s criticism reintroduces the zoom problem into the reasons-for-decisions model. It seems like Lister would have to establish some standard of shared content to resolve

the issue. However, there may be another way to articulate what makes a reason reasonably

rejectable other than appeal to shared content. It could be that the laws that a reason can

justify act as a barometer, such that interpretations of values which would justify horrific

behavior provide reasonable grounds for rejecting that interpretation. For example, if some

interpretation of love could justify engaging in murder, that would constitute sufficient reason

to reasonably reject that interpretation of love.

I have my doubts about this as a standard of reasonable rejectability for public reasons.

It’s not uncommon that admirable values are appealed to in support of horrendous behavior.

For example, concerns of national security have been used to justify senseless wars, wrongful

imprisonment, and Orwellian surveillance. But it makes little sense to reject appeals to

national security for those reasons. It’s much more plausible to say that certain interpretations

of that value fail to meet some standard about what makes appeals to national security

admissible as public reasons. But then we’ve just turned once more to defining standards of

shared content for admissible interpretations of values. There is also the problem that there

will be reasonable disagreement as to whether the laws supported by some reason are in fact

sufficiently horrific or otherwise morally troubling to constitute rejecting the reason in

question.

eEven if w accept policy justification as a barometer to establish reasonable rejectability,

it’s still worth asking how this would work. The substance of this approach seems to be that there is a relationship between the reason offered and a certain law it would justify, and this

relationship disqualifies the reason from being a public reason. But if reasonable rejectability

of certain interpretations of values turns on the connection between those interpretations and 41

the sorts of laws they might promote, Lister is confronted with another problem. Lister’s

endorsement of reasons-for-decisions models turns on the fact that such models needn’t be as mired in the problem of issue individuation as coercion-based models. However, if the reasons-for-decisions we endorse will depend on laws, and since laws may be justificatorily related in various ways, establishing our reasons-for-decisions turns on how laws depend on or are independent from one another. This to say that, on this defense of Lister, the admissibility of reasons will turn on the individuation of issues. But this is just to say that the reasons-for-decisions model is no less vulnerable to the problem of issue individuation than coercion models. So Lister faces a dilemma: either he must provide a standard of shared content, or his reasons-for-decisions model must confront the problem of issue individuation to function.

Conclusion

I have demonstrated that the public reason literature has yet to produce an adequate solution to the problem of issue individuation. No argument in favor of coarse-grained individuation has been able to meet the presumption in favor of fine-grained individuation.

No reason has been offered as to why it is necessary or desirable to limit application of the

PJP in such a way. Gaus’s fine-grained Justificatory Dependence Principle fares better, but still faces problems. While the Principle is intuitively appealing, it fails to resolve ambiguities in how to separate issues. The formal nature of the Principle makes it ineffective as a solution to the problem of issue individuation, since it makes the Principle intensionally inadequate.

This makes it difficult to determine whether his Principle meets the presumption in favor of fine-grained individuation. Further, it fails to provide clear, explanatory outcomes. And the problem of the libertarian dictator looms. Finally, Lister’s reasons-for-decisions model is not an appealing alternative. Either it too must resolve the problem of issue individuation, or else it must confront the task of defining an adequate account of shared content. And while it may 42

be worthwhile to explore this latter option, I believe it is worth salvaging an approach to issue

individuation focused on law rather than reasons-for-decisions. The public reason literature

regarding issue individuation, while small, is still more expansive than the literature

regarding the shared content worries raised by Lister, Billingham and myself. And Lister’s

criticisms, while severe, are not sufficient to demonstrate that we should abandon issue

individuation. There is still fertile ground to dig, and so it’s worth turning the spade a little

longer.

As such, we require a new account of issue individuation. However, in exploring the

individuation literature I believe I have established a number of criteria for settling the proper

scope of issue individuation. First, any criterion of individuation must meet the presumption in favor of fine-grained individuation. If we are to individuate in a more coarse-grained fashion, we must establish clearly why it is necessary or desirable to do so. Second, we must keep Enoch’s criticisms of Gaus close to hand. We must be sure that, unlike Gaus’s

Justificatory Dependence Principle, we are able to derive clear, explanatory outcomes from our principle of issue individuation. Third, an account of issue individuation must navigate

Lister’s zoom problem. It must avoid perfectionism and holism on the one hand, and libertarian dictatorship on the other. 43

CHAPTER 2: A FUNCTIONAL INDEPENDENCE ACCOUNT OF ISSUE

INDIVIDUATION

In chapter 1 I argued that there is as of yet no sufficient account of issue individuation in

the public reason literature. That is, there is no adequate argument for what scope or grain of

law is the proper object of the Public Justification Principle (PJP). In that chapter I set out a

number of conditions that an account of issue individuation would have to meet in order to

avoid the pitfalls of articulating such an account. I argued that no account yet articulated has

met those conditions. The intent of this chapter is to provide an account of issue individuation

that meets those conditions.

The chapter will proceed in six parts. The first part will provide an overview of the three conditions I believe an adequate account of issue individuation must meet. In the second part,

I will articulate and defend what I call a functional independence principle for issue individuation. In the third part, I will demonstrate how the functional independence principle meets the conditions I set out better than the competing model of policy individuation, Gaus’s

Justificatory Dependence Principle. The fourth part will address a number of objections that might be leveled at my account of issue individuation. The fifth section will consider how the functional independence principle may be modified to deal with cardinal information and multiple preferences for members of the public. Finally, the sixth part will offer some thoughts on policy epistemology, a key element in my account of issue individuation.

Three Conditions for an Adequate Account of Issue Individuation

In this section I will review three conditions I have established for an adequate account

of issue individuation. These conditions are: (1) our principle of issue individuation must meet the presumption in favor of fine-grained individuation; (2) our principle must provide clear, explanatory outcomes; and (3) our principle must solve or in some way surmount the zoom problem. 44

(1) Both Jonathan Quong and Gerald Gaus have effectively argued that there is a

presumption in favor of fine-grained individuation. That is, all else being equal, we should

prefer that our principle of individuation individuate fine-grainedly, unless it is necessary or

desirable to do otherwise. While their arguments differ83, the core of their arguments is the same: the requirement of public justification give us prima facie reason to require justification for all acts of coercion. Thus the burden of argument is on those who claim that some forms of coercion do not require public justification (as is the case with coarse-grained models of individuation). I have argued elsewhere that many attempts to meet this presumption - and so justify a more coarse-grained account of individuation - have failed. I have also argued that Lori Watson and Christine Hartley’s argument against the presumption is inadequate. Gaus’s contention that strong interactive effects between policies justify more coarse-grained individuation gets us closer to the mark, but as I will discuss below I believe it is also inadequate without further elaboration. So I take as granted that the presumption in favor of fine-grained individuation must be met by any principle of individuation. That is, if the principle requires coarse-grained individuation, it must provide a compelling reason why doing so is necessary or desirable.

(2) Gauss i the only philosopher so far to articulate an account of policy individuation in his Justificatory Dependence Principle:

Legislation x has justificatory dependence on legislative issue y if and only if:

(1) there is some Member of the Public Alf, such that for Alf, if Alf makes

his individual decision about the eligible members of {x1...xn} in the

absence of considering y, his eligible set is {x1...xi} whereas if he considers

his y eligible set, his x eligible set becomes a different set {x1...xk};

83 See Quong, Liberalism, 275 and Gaus, Order, 490-1. 45

(2) The socially eligible set differs depending on whether Alf’s set is

84 {x1...xi} or {x1...xk}.

This principle is an attempt to articulate when there are strong interactive effects between

policies that justify treating them together as objects of public justification. While I take

Gaus’s Justificatory Dependence Principle as an important jumping-off point in my own theorizing, I have argued elsewhere that the principle is inadequate as an account of issue individuation. This is because the principle, while extensionally adequate, is intensionally inadequate. That is, it only tells us how members of the public’s rankings will vary when they believe there are interactive effects between policies. It does not tell why they will treat issues as having these strong interactive effects. This is a problem because lacking an intensional account of individuation does not allow us to derive clear, explanatory outcomes from the principle. This is a point forcefully made by David Enoch85, and elaborated on by me in the previous chapter. As such, I take it as granted that an account of issue individuation must be intensionally adequate, and thereby allow us to provide clear, explanatory outcomes.

(3) Andrew Lister has provided one of the most compelling problems facing any account

of issue individuation. This problem - the zoom problem - has to do with how fine- or

coarse-grained an account of issue individuation makes policies. Lister argues that any

account of issue individuation faces a potential dilemma. On the one hand, the principle of

issue individuation might individuate in too coarse-grained a fashion. In doing so, the

principle may trend dangerously towards holism - a condition where large swaths of policy,

or even entire legal systems, must be justified all at the same time. A principle of issue

individuation can avoid this problem by individuating in a more fine-grained manner. But this

comes with its own problems. If individuation is too fine-grained, it could render libertarians

policy dictators. Basically, if coercive policy is individuated in too fine-grained a way, then

84 Gaus, Order, 495. 85 Enoch, “Disorder”, 114-115. 46

libertarians would have object to the justification of any policies other than the least-coercive

kind. Since within the Gausian model such objections can defeat the justification of a policy, libertarians basically get to decide which policies are justified and which are not. Thus, they become policy dictators.86 The trick to issue individuation is to provide a principle that

strikes a balance between these two extremes, in a way that is not ad hoc.

sLister ha argued that for various reasons this dilemma is unavoidable. However, I have

argued previously that this dilemma needn’t be inescapable. This is not to say that the zoom

problem is not a real problem for any account of issue individuation. I take it for granted that

the dilemma must be surmounted. But I will contend that it can be so surmounted.

The Functional Independence Principle

My principle of individuation is what Lister refers to as a non-incrementalist principle.

That is, the principle does not make individuation a function of the coerciveness of laws.87

While coercion is important for establishing public justification, establishing the appropriate

grain of laws and policies is a prior step that needn’t be tied to measures of coercion.

Rather, I will contend that laws and policies should be individuated as a function of the

goals of members of the public. To illustrate, suppose that there are two legal provisions,  and . For purposes of public justification, these provisions may be treated either together or separately. It is my position that  and  should be treated as a single piece of legislation if and only if  and , taken together, are the only way to achieve a member of the public’s highly-ranked goals. However, if  is sufficient to meet members of the public’s highly-ranked goals, then  and  should be treated as different pieces of legislation for purposes of public justification.

This account of individuation assumes members of the public have some model for determining what effects legislative provisions would have, including when such provisions

86 Lister, Public, 86. 87 Ibid. 88. 47

meet their goals. In Vallier’s parlance, members of the public will have a policy epistemology.88 This will include social scientific information either accepted directly by members of the public when moderately idealized; or indirectly through their acceptance of the testimony of reliable testifiers.

To summarize, provisions are treated together for purposes of public justification if and

only if, given members’ policy epistemology, those provisions functionally depend on one

another for meeting members’ highly-ranked goals. In contrast, if provisions are functionally

independent, they are treated as such for justification. This renders to us a functional

independence principle:

Functional Independence: law  is functionally independent from law  for member

of the public P if and only if: (1) P rationally believes that  will achieve at least one

of her highly ranked goals {g1 … gn} with or without  based on (2) her model of the

effects of  and .

This account of functional independence applies only to individual members of the public.

We can modify the principle into a general functional independence principle to account for

the public as a whole:

General Functional Independence: law  is functionally independent from law  if

and only if (1) each member of the public believes that  will achieve at least one of

her highly ranked goals {g1 … gn} with or without  based on (2) her model of the

effects of  and .

I suppose that part of the goal rankings for members of the public will include calculations

about the relative costs and benefits of achieving certain goals. That is, part of the process of

ranking the goal will include a cost/benefit analysis about how valuable achieving the goal is relative to its potential costs. This assessment will determine where the goal will be ranked

88 Vallier, Trust, 158-63. 48

relative to other goals and their attendant costs. We can expect that the highly-ranked goals of

members of the public will be ones where the potential benefits of achieving the goal are considered higher relative to the costs. If something of great value can be obtained at minimal

cost, we can expect it to be more highly-ranked than something of lesser valued obtained at a

higher cost. This will not always be so straightforward: very often valuable things come at

great costs. But the more or better of the good that can be purchased for the cost, we should

expect the goal to be more highly-ranked. The methods by which these assessments will be

made constitutes a normative element within members’ policy epistemologies.

To illustrate the general functional independence principle, consider the case of the

Affordable Care Act (ACA). The ACA has three main provisions: an individual mandate to purchase health insurance; required coverage for preexisting conditions; and subsidized healthcare exchanges. If each member of the public has the highly-ranked goal of improving healthcare coverage for the public, the three provisions of the ACA should be treated as functionally dependent. This is because the provisions work in concert to promote the goal in a way none would do on their own. First, the ACA aims to expand healthcare coverage by prohibiting insurance companies from discriminating against those with preexisting conditions. However, this is expensive. To offset this cost, the ACA imposes an individual mandate to get young, healthy people into the healthcare market. In turn, to make the individual mandate affordable for poor individuals, the ACA subsidizes healthcare and creates markets to promote competition. No one of these provisions would be effective in expanding healthcare coverage by itself; they do so only in concert. As such, the provisions of the ACA do not plausibly meet the conditions for functional independence, given members’ highly-ranked goals and policy epistemology. The provisions must be treated together for purposes of public justification. 49

Contrast this with an example considered by Lister: must members of the public only

consider a generic ban on smoking, or could they consider a narrower ban on smoking in

public places like restaurants?8990 We might think the former is the case if we take as a goal keeping smokers from harming themselves. But this goal is paternalistic, and so will most likely be rejected by many members of the public. They will claim they have a right over their own bodies, and such a policy would violate that right.

However, if we take it that members have the highly-ranked goal of stopping the negative externalities of public smoking imposed by smokers on non-smokers, we should expect that a narrow ban on smoking in public places is sufficient to achieve that goal given their policy epistemology. As such, the functional independence principle would favor a more fine-grained articulation of the policy space. The narrow ban is sufficient to achieve highly-ranked goals, and so will be treated as independent for purposes of public justification from a wider ban.

I believe there are three benefits to adopting the functional independence principle as our criterion of individuation in public reason liberalism. The first appeals to the examples above:

I believe the principle, applied consistently, provides us intuitive answers to questions about policy individuation. The second I will explore more fully in the next section: I claim that the functional independence principle better meets the conditions for an adequate criterion of individuation than the competing model (Gaus’s Justificatory Dependence Principle). Finally, the functional independence principle helps members of the public to maximize the extent to which their evaluative standards are met. The functional independence principle will generally call for more fine-grained individuation, and this will assure that laws and policies

89 Lister, Public, 88. 90 One might worry that this is not a case of issue individuation, since it deals with an issue of scope of a singular policy as opposed to interactive effects between otherwise distinct policies. However, one can see how this is a case of issue individuation by conceiving of the generic ban as a combination of several discrete bans, such as a ban on public smoking and a ban on private smoking. This is then an case of issue individuation: we have to determine whether these policies constitute a single issue, or discrete issues, for members of the public. 50

individually promote the goals of members of the public by their own lights. This in contrast with more coarse-grained approach, where bad policy arrangements may still be admissible

(since they will be better than nothing). The functional independence principle allows members to be more discerning when assessing policy proposals. At the same time, the functional independence principle doesn’t rule out more coarse-grained individuation where

appropriate. Sometimes the reasons for members to endorse a policy will depend on their reasons for endorsing a closely-related policy. In those cases, coarse-grained individuation is called for.91 However, the more fine-grained approach of the principle means that these more

complex interactions will be limited in scope.

The Functional Independence Principle Meets the Three Conditions

In section I I reviewed three conditions any adequate account of issue individuation must

meet. The first is that it must meet the presumption in favor of fine-grained individuation.

That is, coarser-grained individuation requires a demonstration that such individuation is necessary or desirable. Second, any adequate account must provide clear, explanatory outcomes. It should at least be clear how the principle is to be applied, and what results are to be expected from its application. Lastly, our account must avoid the twin pitfalls of libertarian dictatorship and holism. The account would be implausible if on the one hand it rendered libertarians dictators of policy in virtue of how policies are individuated; or on the other it rendered all policies, however unrelated, as dependent on one another.

I contend that the account of issue individuation established in the previous section can meet all of these conditions, at least to a better extent than the existing alternatives. Let us examine each in turn.

91 My thanks to Amitabha Palmer for urging me to emphasize this point. 51

III.1. The Presumption in Favor of Fine-Grained Individuation

Gaus believes that the presumption in favor of fine-grained individuation can be met when there are “strong interactive effects” between policies.92 However, one of my criticisms

of Gaus is that his model is intensionally inadequate: it at most explains when members will

treat policies as interacting, without explaining why members think that policies interact. This

is more a problem for the second condition I’ll consider below. But it also presents something

of problem for meeting the presumption: insofar as we don’t know why members will treat

policies as dependent, the “interactive effects” justification for meeting the presumption is to

that extent weak. That is, since we don’t have an intensionally adequate theory, it will be

unclear for any particular case of policy individuation why the presumption is met. After all, we’re unsure why members are treating issues as dependent in that case; we at most know that they are in fact treating the issues as dependent. Something more is desired.

The functional independence principle provides such an explanation. Members will treat

policies as having interactive effects when they believe those policies interact in ways that

affect the achievement of members’ highly-ranked goals. And this is a natural enough

explanation. It is common knowledge that policies may interact with one another in ways that

change what results they generate. And insofar as the results of policy are relevant to the reasons members have for endorsing those policies, it is desirable that those policies be

treated together for purposes of public justification. This is a strong reason for thinking the

presumption can be met.

Clear, Explanatory Outcomes

As stated above, one of my contentions with Gaus’s criterion of individuation is that it

fails to articulate when members will believe interactive effects exist between laws. I showed

in the previous chapter how this leads to problems for Gaus’s view: his principle is unable to

92 Gaus, Order, 495. 52

provide clear, explanatory outcomes, and so is unable to guide theorists when they’re trying

to distinguish policies for public justification. We need some way of articulating when and in what way members will believe policies interact in order to resolve this problem. Otherwise

we risk arbitrarily demarcating divisions between policies, and so generating unprincipled, ill-motivated results.

My functional independence principle is at least a step in the right direction. It articulates an intuitive condition under which members will reasonably believe policies interact: they interact when they affect the realization of members’ highly-ranked goals. Thus, when we parse policies in one way rather than another, we are making appeals directly to the reasons of members of the public. And this, as public-reason liberals, is what we think is required for justification. So the functional independence principle provides the right kind of explanation for why we parse policies the way we do.

It might be objected that the outcomes of the functional independence principle will be

far from clear. Members’ highly-ranked goals are likely to be complicated, after all. Whether or not laws will be functionally independent will depend on not just the ordinal, but the

cardinal rankings between goals. And even if treating laws as independent fits with some

highly-ranked goal g1, treating them as dependent may meet highly-ranked goals g2-g6, such

that the goal satisfaction of g2-g6 outweighs that of g1. I will explore some of these

complexities in section V. But the functional independence principle at least provides some

clarity regarding these complications, and gives us a starting position from which we can begin to unravel these difficulties. As a conceptual framework, the functional independence principle allows us to think about the reasons of members of the public more clearly.93

93 I thank Ryan Fischbeck for this point. 53

The Zoom Problem

Finally, I have established in the previous chapter that we must be wary of Lister’s zoom

problem. That is, we must be careful that, on the one hand, our criterion of individuation does

not trend toward unreasonable holism; and on the other, that it does not trend toward

libertarian dictatorship. Can the functional independence principle avoid these extremes?

The problem of holism is forcefully made by Enoch: whether or not two policies depend

on one another may depend on some third policy, which may depend on a fourth, and so on

until what stands in need of justification are entire legal systems writ large.94 This has an air of plausibility: legal systems are complicated things, with many moving parts all of which may interact with one another in complex ways. And it stands to reason that these complex interactions will affect the realization of highly-ranked goals in equally complex ways. This suggests, worryingly, that the functional independence principle may lead to holism: the realization of highly-ranked goals for members will require large swaths of laws to be justified at once.

But this itself suggests how the functional independence principle may avoid the problem.

Remember that an important element of the principle is that members have a policy epistemology - a way they gauge the effects of laws and how they interact with one another.

At the level of moderate idealization95, these models will not be holistic. Rather, they will at

most assess laws at the level of distinct departments of law.96 This will put a natural

epistemic cap on how complexly members will assess laws’ relations to one another, and so

how those laws will realize their highly-ranked goals. Holism will not obtain because the agents in the deliberative model simply cannot track the interactive effects of policies at that level.

94 Enoch, “Disorder”, 154. 95 Gaus, Order, 244-258. 96 Dworkin, Empire, 250-254. 54

The problem of libertarian dictatorship is more complicated. The worry is that, if the

functional independence principle individuates too finely, then libertarians will always have

defeaters for any but the most finely-grained units of law. This makes them, essentially,

policy dictators. Their goals will be such that they always treat policies as maximally

independent. And once they treat policies in this way, they will have a veto on any but the

most minimal set of laws that are to their liking.

I hope to have shown by example that this result is at least not so plausible at it may seem. Our example of the ACA above shows how a goal plausibly held by most or all members of the public - concern for the provision of public healthcare - leads to a coarse-grained individuation of policy. And it’s not implausible that the ACA may be in the optimal eligible set of even libertarians. (Those libertarians that object to the scheme may be bought off with exemptions, which would not undermine the system as a whole.) So there is a strong case to be made that libertarians will not dominate policy justification in the way the zoom problem articulates. After all, if the ACA can survive justification, what else may?

One might object that at least some libertarians will take the minimizing of coercion as a

highly-ranked goal. If this is so, they may treat all policies as independent because doing so

realizes the highly-ranked goal of minimizing coercion. As such, the libertarian dictatorship objection obtains.

There are two potential responses to this objection. The first would be to point out that libertarians will have other highly-ranked goals besides the minimizing of coercion. Surely libertarians are not so monolithic that all they care about is minimizing coercion. As such, they will have other highly-ranked goals that may lead them to treat policies as dependent.

The second, more radical response would be that merely minimizing coercion is not a coherent goal in the scheme I have spelled out. Having the goal of minimizing coercion is to have a goal of minimizing costs - without specifying relative to what these costs are to be 55

minimized. We might think of this as an elaboration on the first response: surely libertarians

care about things other than coercion. Libertarians are not defined by the monolithic goal of

minimizing coercion, but rather by a policy epistemology where the benefits of various

policies are not worth their coercive costs. As such, libertarians are not best modeled as

having the goal of minimizing coercion. Their goal sets must amount to more than that.

One might reply that these responses only push the problem back. Even if we conceive of

libertarians as only having a particular kind of policy epistemology, this will still shape assessments of policy such that individuation will be too fine-grained. To this we may reply that there will be other members of the public with different policy epistemologies that will create pressure in the direction of more coarse-grained individuation on some issues. And

even if such a coarse parsing of policies is not ideal for the libertarian, it may nonetheless be

that the parsings are admissible. That is, libertarians must surely take it that the goals and

policy epistemologies of non-libertarians are in some way reasonable. As such, while coarse

policy individuation may be non-optimal, such policies may nonetheless still be within the

eligible sets of libertarian members of the public.

Objections to the Functional Independence Principle

I will consider two objections to the functional independence principle. The first, that it

is too demanding. The second, that it requires a further account of goal individuation.

One could object that the functional independence principle is too demanding on us. It

seems to require us to know not only what goals members have, but the rankings of those

goals, as well as their policy epistemology for determining when their goals are realized. To

do this for all members of the public on all issues would be a Herculean task. Fortunately,

this problem only arises if what we aim for is a full rational reconstruction of our social order.

However, I subscribe to the Gausian notion that we must understand the Deliberative Model

of public justification as a “testing conception,” which addresses issues as they arise rather 56

than offering a full reconstruction of the kind described above.97 As such the demands of the model will be much less strenuous.98

Or again, one might object that the functional independence principle merely replaces the

problem of individuating policy with the problem of individuating goals.99 After all, goals

may come in various grains. And we might think that, if the functional independence

principle is to function, it must settle the theoretic question of what grain of goals is

admissible. So the problem of policy individuation isn’t settled. The functional independence

principle has replaced the need for one analysis with the need for a further analysis.

I claim that we don’t require a theory of goal individuation in order for the functional independence principle to function. This is because such a theory will be provided by each member of the public, as part of their model of how policies realize their goals. Their model of goal individuation will be informed by their own evaluative standards, desires, and commitments. As such, a “public” account of how goals are individuated is unnecessary. It is included as part of our model of members of the public. One might wonder why a similar strategy isn’t permissible for the individuation of issues: why not just let individual members

individuate issues each on their own? The answer is that proposed laws and policies are

public in a way that goals are not.100 Part of the public reason project is to assess proposals

together, and so these proposals require some shared, identifiable content. The same is not

true of goals: goals are not always the subject of social agreement, and so can remain to that

extent private.

This is not to say we can’t make some predictions on how members will individuate their

goals. For example, goal formulation for members will likely vary depending on the level of

the legislation in question. So, goals of members will vary depending on whether the

97 Gaus, Order, 176-177. 98 I thank Kevin Vallier for his insight regarding this objection. 99 I thank an anonymous referee for this objection. 100 I thank Kevin Vallier for this excellent point. 57

legislative issues in question are local, state, or federal issues. These different levels of legislation will often lead members to adopt goal formulations that will allow them to ease the burdens of assessing legislation at these different levels. Goals for local legislation will likely be narrower and more specific than for federal legislation.

One might worry that members of the public will not have a clear sense of how to

individuate their own goals. This may render the functional independence principle either

indeterminate, or at most equivalent to Gaus’s own view.101 I am not so concerned about the

latter result. In the cases described by this worry, either Gaus’s principle would itself be

indeterminate, or it would not. If it would not be indeterminate, I’m unsure why the

functional independence principle would itself be indeterminate in the same circumstances. If members can have reasons for treating policies as dependent or independent, why would they not have a clear idea of how those policies would function together to achieve their goals? It seems like if we have one, we’ll most likely have the other. If, on the other hand, Gaus’s principle is indeterminate, it might also be the case that the functional independence principle is indeterminate. But then, even supposing indeterminacy is a problem, my principle at least further clarifies where the indeterminacy problem lies: it lies in the ability of members to discern the functional independence between policies.

But is indeterminacy about goal individuation really a problem for my view? Not

necessarily. It seems as though, if there is indeterminacy in how some members of the public

will individuate their goals, this at most tells us that some members of the public will have no

settled view on how laws ought to be individuated. But this, in turn, tells us at most that these members cannot believe that the laws in question can function independently of one another.

Thus, the presumption of the functional independence principle is to treat the policies as

functionally dependent for purposes of public justification. Thus, even if members of the

101 I thank an anonymous referee for this worry. 58

public don’t have determinate ways of individuating their goals, the functional independence

principle does not generate an indeterminate result.

This would itself be a problem if members’ goal individuation were thoroughly indeterminate - that is, if members could never discern how to individuate their goals. In that

case I would seem to be committed to justificatory holism, the view that entire legal systems must be justified together. An implausible result, and a considerable strike against the functional independence principle. But the claim that members will never know how to individuate their goals is itself implausible. Surely members’ goals are determinate it at least a majority of cases. As such, the worry about goal indeterminacy is not so concerning.

Dealing with Multiple Preferences and Cardinal Information

So far the principle of individuation I have articulated individuates policies from one

another just when those policies can achieve one of their highly-ranked goals apart from the other. But it might be the case that treating two policies together may help members achieve many lower-ranked goals. Suppose law α meets highly-ranked goal g1 without law β, but that

α meets highly-ranked goals g2-g6 only with law β, and the satisfaction of a member’s

evaluative standards is greater when g2-g6 are satisfied together than when g1 is satisfied by

itself. The right result seems to be to treat α and β as dependent. This is especially true given

one of the motivations for my view: that individuating in accord with the functional

independence principle will help members maximize the achievement of their evaluative

standards. But this would not be the result given by the functional independence principle,

which would require that α and β be treated independently. This is for two reasons: (1) the

functional independence principle is not sensitive to cardinal information; and (2) the

functional independence principle does not take into account multiple preferences. 59

This needn’t be a huge problem, though. We can revise the functional independence

principle to be sensitive to cardinal information and multiple preferences. This would yield us

a cardinal functional independence principle:

Cardinal Functional Independence (Three or More Preferences): law α is

functionally independent from law β for member of the public P if and only if (1) P

rationally believes that law α will achieve evaluative standard satisfaction threshold

T with or without law β based on (2) her model of the effects of α and β.

Here T = evaluative standard satisfaction Σ{g1-gn} – Σ{g2-gn}. Treating policies as functionally independent makes sense when T is positive and large: the larger T is, the more reason there is to individuate, since the more a member’s evaluative standards would be satisfied by treating the policies as functionally independent.

We can now articulate a general cardinal functional independence principle:

General Cardinal Functional Independence: law  is functionally independent from

law  if and only if (1) each member of the public believes that  will achieve T with

or without  based on (2) her model of the effects of  and .

This condition mirrors the general functional independence principle, but is sensitive to the

achievement of T. If T is achieved for all members of the public by treating  and 

independently, they are treated independently for purposes of public justification.

Some Thoughts on Policy Epistemology

Since my account of issue individuation relies heavily on Vallier’s notion of policy

epistemology, it’s worth expanding on what he has said.

As Vallier points out, policy epistemology will have (obviously) epistemic elements: it

will contain standards for the level of evidence required to determine that a policy will have certain effects.102 However, contained in this idea of the effects of policy will be important

102 For more on policy epistemology, see Vallier, Trust, 158-63. 60

normative components. These normative components will include the standards by which

members assess whether or not those goals will be sufficiently achieved by a given policy. It

will also include the normative standards by which goals are ranked, including the relative

trade-offs between the costs and benefits of a policy. Put another way, our epistemic measures of how to calculate the relative costs and benefits of the policy will in turn rely on assumptions about what those costs and benefits amount to. For example, when assessing the efficiency of an economic system, one requires some conception of what the system is to be efficient relative to.

We can see this normative component of policy epistemology at work when we consider how the level of evidence required to meet some goal will vary depending on the legislation

under consideration. Legislation that is more provisional, affects fewer people, or is generally

expected to have smaller potential negative impacts, will face a lesser burden of evidence.

This makes sense: we are liable to be less risk-averse when the stakes aren’t so high. This

dovetails with the insight expressed in the previous section about how goals will be

individuated differently depending on the relative level of the legislation. The relative costs and benefits of goals will vary depending on the level of the legislation in question, and so goals will be individuated differently depending on members’ policy epistemologies. 61

CHAPTER 3: AN ASSOCIATIONAL ARGUMENT FOR EGALITARIAN

REDISTRIBUTION

A major debate within public reason liberalism concerns what economic systems are publicly justified. Kevin Vallier has contributed to this debate in his book Trust in a

Polarized Age, where he argues in favor of welfare-state capitalism and against more left-leaning economic systems like property-owning democracy. In this chapter I will argue, at least in a limited way, in favor of egalitarian redistributive practices - understood as redistributive practices meant to increase relations of equality between citizens. Specific egalitarian policies may include the institution of a universal basic income, or the establishment of reparations for historically disadvantaged groups. The general idea is to justify re-routing resources from the haves to the have-nots, in a way that compresses inequality. My aim is to offer this argument within Vallier’s justificatory framework, and so push his theorizing on economic institutions in a leftward direction.

This chapter will proceed in six sections. In the first I will discuss Vallier’s arguments

against egalitarian redistribution. The second section will establish that one plausible way of

settling the issue of redistribution - establishing a justificatory priority of property rights over

redistribution, or vice versa - is not open to us. This is because institutions of property rights

and of redistribution will be functionally dependent on one another, and so cannot be justified

apart from one another. I will also argue that this is true given a more piecemeal approach to

justifying property rights. The third and fourth sections will attempt to resolve the issue of

redistribution by appealing to associational rights that are more fundamental to Vallier’s

justificatory scheme. I will argue that there’s a strong case to be made in favor of egalitarian

redistribution as a way of establishing equal social relations between citizens. In the fifth

section I will respond to the contention that redistributive practices cannot meet the standards of policy epistemology. I will argue that the burdens of policy epistemology can be weakened 62

for sub-publics, and that these sub-publics can function as epistemic laboratories to further

meet the burdens of policy epistemology for broader publics. Finally, I will contend that one

way of easing the burdens of public justification - the allowance for exemptions - is not as

plausible in light of my associational argument. If citizens cannot fundamentally agree on the

character of their associations to one another qua citizens, then the costs of allowing

exemptions may exceed the benefits of allowing those exemptions.

Vallier on Redistribution

Vallier contends that there are two different kinds of argument for income redistribution:

those that suppose economic equality is intrinsically valuable, and those that suppose it is

instrumentally valuable. Vallier rejects the former kinds of argument as overly sectarian.

Members of the public will disagree about the requirements of justice, and so disagree whether justice permits certain kinds of economic inequalities. Thus some members will have defeaters for these kinds of egalitarian justifications of economic equality.103

However, Vallier thinks instrumental arguments, such as the argument that economic

equality is required for well-functioning democracies, must be taken more seriously. While

he is skeptical of claims that the super-rich can use their wealth to control much of the

democratic process, he is more worried by the work of Mark Gilens and Benjamin Page which indicate democratic institutions are only responsive to the top 10% of income earners.

This gives public-reason liberals two reasons to worry: (1) democratic processes will not

track what is publicly justified under conditions of economic inequality; and (2) under such

conditions, many citizens will not have effective primary rights of influence in the political

process.104 If this instrumental argument goes through, it provides some reason to think that

egalitarian redistribution would be publicly justified.

103 Vallier, Trust, 174. 104 Ibid. 175. 63

But Vallier raises two problems with this kind of instrumental argument. The first is that, while the Gilens and Page data is impressive, more study is required if we’re to meet the standards of policy epistemology - the standards by which members assess whether or not a policy will meet their policy goals. The idea is that one, albeit impressive, study is not enough to convince some members of the public that egalitarian redistribution is required to save democracy. The second problem Vallier considers is that, given the presumption against coercion and in favor of civic institutional solutions, public-reason liberals should prefer non-coercive solutions to the problems raised by economic inequality. For example, Vallier proposes reforming zoning and intellectual property law as non-coercive ways of compressing income inequality, and so resolving many potential problems such inequalities raise for democracy.105 This reinforces Vallier’s more general point about policy epistemology: since the causes of income inequality are unclear, the justification of coercion to mitigate inequality becomes to that extent harder, since it’s not clear which kinds of coercive interventions would work.106

The Functional Dependence between Property Rights and Redistribution

Establishing whether or not egalitarian redistribution can be justified would be easier to do if we could establish that either property rights or redistributive policies had some priority over one another in the order of justification. The order of justification is the order in which issues are publicly justified - with those rights and policies justified earlier in the ordering taken as settled when justifying rights and policies later in the ordering.107 If we could establish, for example, that property rights are justified independently of redistributive practices, and prior in the order of justification, then the coercive claims required to protect private property rights would have a priority over coercive redistribution. Property rights

105 Ibid. 176-7. 106 Ibid. 179. 107 Gaus, Order, 317-8. 64

would be more fundamental than redistributive policies, and so the protective coercion of

property rights would be the baseline against which redistribution would have to be justified.

This might work in reverse as well. If redistribution is justified prior to property rights, then the coercive claims of redistribution would put limits on the extensiveness of property rights. There would be a presumption that we could redistribute income as required by equality or some other value, and this would create a baseline against which claims to protect private property would have to be justified.

Either way, doing so would help us avoid contentious conflicts regarding who is initiating unjustified coercion regarding income.108 But as I will argue, neither route is open to us. This is because policies regarding property rights and policies regarding egalitarian redistribution will be functionally dependent on one another, and so neither has priority over the other.

In the previous chapter I argued for a criterion of individuation called the general functional independence principle:

General Functional Independence: law  is functionally independent from law  if

and only if (1) each member of the public believes that  will achieve at least one of

her highly ranked goals {g1 … gn} with or without  based on (2) her model of the

effects of  and .

According to this principle, we treat laws as functionally independent if and only if members of the public, given their models of the effects of those laws (i.e. their policy epistemologies), believe that the one law will achieve at least one of their highly-ranked goals without the other law. Put simply, laws are treated independently for purposes of public justification when they can function to achieve members’ goals apart from one another. If the laws in

108 Vallier, Trust, 134-6. 65

question fail to meet the conditions of general functional independence, then we may say that they functionally depend on one another, and so such laws must be justified together.

The question we ask here is whether laws regarding property rights and laws regarding

redistribution will be treated as functionally independent by members of the public, given

their policy epistemologies. It seems to me clear that they will not. To see this, consider how

the realization of various goals by members of the public will depend on the distribution of

property rights. This will include, for at least some members, a concern about whether or not the distribution of property rights in a society is just or not. That is, members will have the

goal of assuring that the distribution of resources generated by a society’s economic and property system is just. Such goals will be highly-ranked because (a) their realization will be considered of significant importance, and (b) they will be of such importance that they will justify even considerable costs. And given members’ policy epistemologies, the realization of these goals will cause property rights and redistribution to depend on one another. To put it simply, members will be unable to assess the justness of a property rights regime without assessing whether it generates a just distribution. Our assessment of the one depends on the assessment of the other. As Gaus observes:

Many Members of the Public could not possibly evaluate and rank schemes of

private ownership unless they know their distributive implications; for many

Members of the Public these issues are tightly bound together. Consequently,

debates about acceptable systems of property inevitably include debates about the

fairness of their resulting distributions.109

And this will be true in reverse for other members of the public. Whether or not a certain distribution is just will depend on how the scheme of property rights is constructed. For example, some members will have Nozickean evaluative standards, such that the justness of a

109 Gaus, Order, 522. 66

distribution is determined by the following of some set of distributive principles about the just acquisition and exchange of property. Such members of the public will have the goal of realizing these rules, and so will not assess the justness of a distribution apart from those rules. Again, members’ assessments of the one will depend on their assessments of the other.

As such, for property rights laws  and redistributive laws , there will be highly-ranked goals such that  cannot be achieved without . And the reverse is also true: for some

members of the public, redistributive laws  cannot achieve one of their highly-ranked goals

without property laws . Since this dependence will hold for some members of the public, the general functional independence principle cannot obtain for property rights laws and

redistributive laws. As such, these sorts of laws will generally functionally depend on one

another. Therefore, they cannot be treated independently for purposes of public justification,

and we cannot establish any justificatory priority of the one over the other.

One might think that the issues of property rights and redistribution could be resolved by

some third policy. For example, if we could establish some policy regarding the desert of

members of the public, that could resolve when property and redistribution would be justified.

However, I think there are two reasons such an appeal would not resolve the policy issues in

question. First, such a policy regarding desert would inevitably be controversial, and so could

not provide a solid basis on which to resolve issues of property rights and redistribution.

Second, it seems plausible that considerations of desert will functionally depend on

considerations of property rights and redistribution, since part of our intuitions about whether

or not some distribution of resources is deserved will almost certainly depend on intuitions

about what constitutes a just distribution. As such, whether or not some policy regarding

desert will realize members’ highly-ranked goals will depend on assessments of what

constitutes a just distributive policy.110

110 I thank Ryan Fischbeck for presenting this potential option to me. 67

So far I have offered a generic argument for the functional dependence between

property rights and redistribution. But Vallier’s defense of property rights is more nuanced

than that. He does not defend a single, generic right to property, but focuses rather on discrete

components of property rights.111 Some of these components will be more controversial than others. For example, Vallier believes the right to property in one’s home and property for non-profit purposes will be less controversial than the use of property commercially. This raises the question whether these discrete instances of property rights functionally depend on discrete concerns about redistribution.

At first, it might appear that they do not. Basic rights to property in one’s home or to the fruits of one’s labor seem informed primarily by Lockean intuitions about the just acquisition and use of resources. Our assessment of the justification of these property rights therefore does not immediately depend on considerations of redistribution. However, I believe this independence between discrete property rights and redistribution is illusory. That is, I believe my generic argument holds even at the specific level of discrete property rights. For the use we can make of our private property can be limited by concerns about how the use of that property can cause harmful redistributive outcomes. Vallier himself seems to be sensitive to this: he grants that property owners can be stopped from imposing negative externalities on other individuals.112 It is my contention that harmful distributions of resources is one sort of

negative externality members of the public will be concerned with, and so members’

endorsement of these discrete property rights will depend on considerations of redistribution.

That is, members will ask whether discrete property rights are likely to lead to harmful

distributions of resources.

It’s important to note that the answer to this question needn’t always be yes. Vallier’s example of the use of property to have a church bake sale is one instance where the use of

111 Vallier, Politics, 209. 112 Ibid. 210. 68

property pretty uncontroversially will not have deleterious distributive consequences. It

seems as though allowing a church to use their resources to have a bake sale will not lead to

the kinds of massive inequalities that may undermine democracy, for example. This isn’t to

say that redistribution is not a consideration that members must have in mind when assessing

these kinds of property rights. It’s just that, given this instance, considerations in favor of

redistribution that would undermine those property rights are fairly weak, and so most

members of the public will see no issue with allowing church bake sales (or churches, for that

matter). As Vallier rightly identifies, the real controversies will involve whether large

accumulations of wealth or the formation of large businesses will generate the kinds of

negative externalities we’re considering here. On this matter the dependence between

property rights and redistribution is more obvious. But just because it is more obvious at the

point of controversy does not imply that it is not also in play in less controversial cases.

Importantly, Vallier takes no stance as to whether property rights or redistribution are

functionally independent. Thus, so far we have not proposed anything that is anathema to his

justificatory framework. However, I will argue that we may be able to establish a sort of

priority of redistribution through associational rights, which would have the effect of tilting

Vallier’s arguments on economic policy leftward.

An Associational Right of Citizenship

So the question whether egalitarian redistribution can be publicly justified cannot be

resolved by establishing some justificatory priority for property rights or redistribution. The

two are functionally dependent, and so must be justified together. How, then, might we solve this puzzle? One option open to us is to fall back on associational rights. Vallier claims that rights of association are more fundamental than property rights, since part of his justification for property rights relies on claims about associational rights.113 As such, associational rights

113 Vallier, Trust, 126-7. 69

seem to hold the kind of justificatory priority we were exploring in the previous section:

associational rights stand prior in the order of justification, and inform the justification of

property rights (and presumably redistribution). So perhaps we can resolve the question by

appeal to associational rights.

Vallier argues that some property rights are necessary to the exercise and delineation of

moral, economic, and political associations. Further, the existence of associations supported by property rights helps resolve problems of dissensus: since associations can do with their property what they want, we don’t require some collective method of how to dispose of that property - a method that would be bogged down in disagreement.114 However, establishing property rights (and the redistribution thereof) requires adherence to policy epistemology -

recall Vallier’s arguments from the first section. Further, policy epistemology is itself a part

of the justification of legal and political establishment of associational rights, as Vallier

seems to recognize: “When associations cannot perform a critical social function to an

adequate degree, a public legal system can permissibly intervene if it clearly can execute that

function.”115 So any argument about the legal and political establishment of property rights and their distribution are subject to the policy epistemologies of members of the public.

The question, then, is whether or not a policy of egalitarian redistribution can be justified on associational grounds, given policy epistemology. This requires defending two claims: (1) that egalitarian redistribution would protect important associational rights, and (2) that such a policy would be adjudged to do so better than other, non-legal social practices, given members’ policy epistemologies. I will defend (1) in the next section, and discuss how (2) might be met in the fifth section.

To defend the first claim, I draw extensive inspiration from Elizabeth Anderson’s

seminal article, “What is the Point of Equality?” In this famous article Anderson articulates a

114 Ibid. 127. 115 Ibid. 99. 70

relational account of egalitarianism, where what is to be equalized is not resources or

opportunities, but those things required to allow individuals to function equally as citizens. In

this section I aim to offer a public reason spin on her relational egalitarianism, articulating a

thin conception of citizenship that most members of the public could accept, and which has

prima facie economic egalitarian implications. I will first turn to articulating this thin

conception of citizenship. Then I will argue for its egalitarian implications in the following

section.

While Vallier considers many important forms of association, both civic and commercial,

I believe he gives short shrift to the importance of the associations of citizens qua citizens. In particular, I don’t think he spends adequate time analyzing the rights and obligations we stand in to one another as citizens. As fellow members of a society, there are things that we can ask and demand of one another - such as shows of respect, equal consideration, etc. Of course, these demands must meet the strictures of public justification. But I fear these sorts of rights of citizens have been neglected by Vallier, at least at this level in the order of justification.116

My conception of citizenship involves the idea that citizens owe a certain attitude to their

fellow citizens. When citizens recognize that they are all part of the same society,they hope

that despite their disagreements they can find a way to flourish together. Put another way, my

conception of citizenship is not antagonistic; society is not a mere competition for resources

and recognition. Rather, citizens recognize some broad notion of the common good: that they

can thrive together, and that they want to thrive together. Thus citizens should want success

and recognition for others, despite their social and political conflicts. I take this conception of

citizenship to be a partial articulation of Rawls’s contention that society should not be a mere

modus vivendi. The moral value of society is only fully realized when we move beyond

116 For a defense of a principle of social insurance by Vallier, see ibid. 147-153. 71

ordered competition to this kind of mutual recognition among citizens. Without such

recognition, there’s a real sense in which the value of society is not realized.

On this view, then, what is required for one to be an equal citizen? This will in part

involve the policies that help us realize the relevant attitude of citizenship. Consider the old saying that justice must not only be done, but must be seen to be done. When I consider what it means to be an equal citizen on my account, what I have in mind is something analogous to the saying. Citizens must be able to both take and recognize that others take the relevant attitude towards fellow citizens. And the evidence that this attitude is taken will involve the endorsement and presence of policies that express that attitude. The thought is that the attitudes of citizenship requires action on the part of citizens, and this in turn requires certain policies in order for that attitude to be realized - and to be seen to be realized. In absence of such policies, citizens will be unsure whether others take the relevant attitude towards them, which in turn leads their relationships to devolve into something more like a mere modus vivendi.

I won’t go into full detail here about what having this attitude requires of citizens. Surely this will be a subject of disagreement. But regarding citizenship my contention in this chapter

is twofold. First, I will contend that for many citizens adequate respect for fellow citizens will

require egalitarian redistribution. Taking the appropriate attitude toward fellow citizens will

require diminishing the economic power of the well-off and transferring that power to the less

well-off. This will help to realize relationships of political equality that in turn help realize

the goods of citizenship. Second, I will contend that we require some shared conception of

citizenship if we are to realize the full goods of society at all. Where there is disagreement

about citizenship and its requirements of recognition, there is disagreement about what

adequate respect and recognition of fellow citizens requires. I will argue that this undermines 72

the good of citizenship canvassed above, and will undermine the conditions for social trust. In

short, society cannot survive schisms about citizenship unscathed.

For many members of the public, the associations we stand in with each other as citizens

will be central to their conceptions of the good life. For some, citizenship will be intrinsically

valuable: members will find their political identity to be a core part of their conception of the good, and so these political relations are intrinsically important. Members can also have instrumental reasons to endorse cultivating the relevant attitude of citizenship. Members will see taking up this attitude - given that others do likewise - as important to the promotion of their other ends. However, for reasons I will explore below, there cannot be a purely instrumental interest in citizenship. That is, endorsement of the attitude of citizenship cannot rest solely on instrumental reasons. Given the sort of attitude I believe citizenship requires, perceiving another as a fellow citizen requires perceiving the well-being of that fellow citizen as something to be pursued for its own sake. It is inconsistent with my account of citizenship to see fellow citizens as merely useful actors for promoting one’s conception of the good.

Call this a thin account of citizenship. Is a thinner conception possible within the context of the public reason project? My contention is that it is not. To see this, consider the following example.117 Suppose you have a group consisting of individuals who are indifferent or hostile to the well-being of their fellows. What would it take to transform this

group into a group of citizens? One might reply that one could have an ultra-thin procedural account of citizenship: we recognize that we ought to treat our fellows in certain ways, but in

a way that doesn’t require concern for the well-being of others. Recall the purely instrumental approach I considered above, where members of the public only take the relevant attitude for instrumental reasons. This might be the sort of relationship that economic agents find themselves in, where all parties benefit from a mutual exchange motivated solely by concern

117 I thank Amitabha Palmer for this thought experiment, and the exchange that followed it. 73

with one’s own self-interest. But I think this ultra-thin conception is inadequate in two respects. The first is that moral concern with procedures requires some minimal concern for the well-being or moral status of another. This is in part why we engage in exchanges rather

than stabbings to get what we want from others. Second, at the end of day, agents concerned with procedure without being concerned with the well-being of others are not the agents up to the task of public justification. So a thinner conception of citizenship than the one I propose is not sufficient to transform the group of uncaring agents into a group of citizens. What is needed is a moral transformation in the relations between those individuals in order to transform them into fellow citizens. At the bare minimum, the thin conception is required.

Would members of the public endorse a right of citizenship? I believe many would, for

both the intrinsic and instrumental reasons described above. As such, I believe most members

of the public would endorse a right to be treated according to the attitude of citizenship I’ve described. Now, it is possible that not all members of the public will see citizenship as that

important of a value, such that they would at most endorse something like the ultra-thin conception of citizenship. But as I will argue in the final section of this chapter, members who cannot or refuse to take the relevant attitude to their fellows cannot rightfully consider themselves members of the same public. They are, after a fashion, justificatorily estranged from their fellows. As such, I will argue that for members of the public to be members of the same public at all requires taking up the attitude of citizenship toward each other. To do otherwise - to reject citizenship as valuable - is to no longer be a fellow member of the same public with others. For now, though, I will explore how members of the public who endorse an associational right of citizenship would go about protecting that right.

An Associational Argument for Egalitarian Redistribution

What protections would members of the public think sufficient to protect their

associational rights of citizenship? Well, this will vary depending on members’ policy 74

epistemologies. Members will have different goals, and will assess different policies as meeting or failing to meet those goals. Undoubtedly Vallier is correct that this will include

some scheme of property rights. But the character and extent of those property rights needs to

be spelled out. My contention is they must be spelled out in a way that is consistent with

protecting the important associational rights of citizenship.

To see what kind of threats associational rights of citizenship may face, and how

redistribution may protect those rights, consider the following. In the deliberative models of

public reason liberalism it is generally assumed that members of the public will have access

to various kinds of information relevant to developing policies for a functional society.

Among the information that members of the public will have access to is socio-historical information about oppressive social hierarchies that have permeated various societies across

history. For example, in the history of the U.S. they will know the travails of oppressed groups such as people of color, women, the disabled, homosexuals, gender-nonconformists, etc. They will also have information about the kinds of disadvantages faced by oppressed groups, and at least some idea of how these disadvantages have had social, cultural, and economic implications. These hierarchies and their effects run counter to the moral egalitarian intuitions at the core of public reason liberalism: that all members of the public have equal moral status, and are equally capable of constructing and pursuing a conception of the good life in accord with their evaluative standards.118 It is also inconsistent with the

attitude of citizenship: to allow members to be disadvantaged in the ways allowed by

oppressive class hierarchies is to manifest a lack of concern for the well-being of one’s fellows. Oppressed groups may rightly feel that their fellows do not take the relevant attitude of concern towards them. As fellow members of society, they may think that they cannot flourish together with others. Rather, they may infer that society is a mere struggle for power,

118 Anderson, “Point”, 312. 75

that victory for one group necessarily means loss for another. So oppressive class hierarchies

not only undermine the belief that others share the citizenship attitude towards oneself, but

may also undermine one’s own attitude towards other citizens.

As a part of their policy epistemology, then, many members of the public will place surplus emphasis on making sure our social institutions do not replicate or reinforce these forms of disadvantage. As such, members of the public will require considerable guarantees that such oppressive hierarchies will either not arise or be remedied when they arise. If they cannot be provided sufficient evidence that institutions will guarantee things like equal citizenship, they will have defeaters for those institutions.119

I emphasize equal citizenship because other members of the public may have defeaters for more robust guarantees of equality, such as full equality of resources. Arguments for such arrangements will almost certainly rest either on intrinsic arguments that are too sectarian, or instrumental arguments that will not meet the conditions of policy epistemology of these other members of the public. However, the demand that individuals have sufficient resources to guarantee equal citizenship will have much greater purchase for a wider swath of members of the public. While there will be disagreement as to what is required for a sufficient guarantee of equal citizenship, surely there will be some vaguer agreement that all members of the public should be able to function equally as citizens - that all should manifest the concern required for the well-being of their fellow citizens.

But members of the public, knowing what they do about oppressive class hierarchies in

our real-life history, will be wary of how these hierarchies affect access to equal citizenship.

As such, part of what is required for a sufficient guarantee of equal citizenship will involve

policies that avoid or rectify oppressive class hierarchies that run counter to the egalitarian

commitments of public reason liberalism. It is my contention that many members of the

119 Rawls, Political, 76-7. 76

public will deem robust redistributive policies (for example, a universal basic income or

reparations for historically oppressed peoples) and the policies that would support it (such as

a high progressive tax rate) as at least eligible as a method for undermining these destructive

hierarchies. They will do this for both negative and positive reasons. Negatively, they will

want additional resources to correct for or better undermine the results of oppressive

hierarchical structures, by giving one more financial options to navigate around oppressive

institutions, or allowing one to create or promote institutions that are non-oppressive or anti-oppressive. Positively, members will want additional resources to better allow disenfranchised or marginalized groups to pursue their various conceptions of the good, and to realize a more robust positive freedom. This will involve both increased participation in political society (such as ability to vote or increased political speech) as well as improved status in civil society (the ability to function as equals among one’s fellow citizens).120

One might worry that redistribution will not have these beneficial effects. This is partly

an empirical matter, something I will have to address in the next section. But I still believe something can be said for the benefits of egalitarian redistribution. Generally speaking, one of the economic consequences of oppressive class hierarchies is that economic power is more concentrated in the hands of those who benefit from oppressive class hierarchies. This is most clearly the case with economic class, but is also plausible in the cases of race, sex, etc.

(Consider e.g. the gender pay gap.) And one major way this economic power can be used is to continue to promote oppressive class hierarchies, which in turn can lead to greater economic benefits for the privileged class. So it stands to reason that economic inequality is a prime cause of other kinds of inequality. To put it another way, and as I will argue in more

detail below, the concentration of economic power in the hands of privileged classes grants

120 Anderson, “Point”, 312-321. 77 those classes a greater jurisdiction where they can further promote oppressive class hierarchies.

As such, redistributing resources from the haves to the have-nots will grant greater economic power on net to the marginalized and disenfranchised, and less economic power to those who would benefit from oppressive class hierarchies. This by no means implies that every redistribution will contribute to the reduction of oppressive class hierarchies. This is because class identities can be complex, and not every individual who is disadvantaged in one way is disadvantaged in other ways. For example, we could imagine that some redistributions to working-class white men will inevitably go to promoting practices that may support oppressive class hierarchies along dimensions of race or sex. Inevitably some working-class white men will have sexist or racist beliefs, and some subset of such men may use resources obtained by redistribution in ways that may exclude, marginalize, or otherwise oppress others. But if our hypothesis is correct that relative economic power correlates with social privilege, shifting that economic power downward will on net benefit those who would use that economic power to undermine or hinder oppressive class hierarchies. As such, we have good reason to think up-front that robust redistributive policy will contribute to a considerable good and undermine a considerable harm.

It will immediately be objected that a more robust redistributive scheme will be more coercive to those whose income will be redistributed, and this coercion requires additional justification. Here I will turn to an argument offered by Paul Bou-Habib. Now, Bou-Habib argues, among other things, that there really is no coercive difference between various economic regimes: the state is just as coercive when it protects property rights as when it engages in redistribution.121 I agree with Vallier that this argument is unpersuasive: surely there is some difference between the coercive practices of various economic regimes, say

121 Bou-Habib, “Gaus”, 657-8. 78

between those of the Soviet Union compared to those of modern-day Denmark.122 So given that coercion must be justified to members of the public, I must offer some justification why the coercion associated with redistribution is justified to members of the public. This argument may take one of two forms, either one sufficient to our purposes: either (1) more redistribution is actually less coercive than less redistribution on net; or (2) more redistribution is more coercive than less redistribution on net, but we have strong sufficientarian reasons to believe that coercion can be justified. (1) is contentious, since members will disagree about coercion.123 As such, let’s set that argument aside and assume that, yes, more redistribution is on net more coercive than less redistribution. I claim it would still be the case that that coercion would be justified. And I think Bou-Habib helps provide an argument as to why.

Property rights are, among other things, jurisdictional rights: they are rights that define a

jurisdiction within which members can act without the leave of other members of the public. I

think that we can articulate the sufficientarian intuition we spoke of above in terms of jurisdictional rights: we generally think that members should have sufficient jurisdiction to

act as a citizen, both politically and in civil society, and to pursue one’s conception of the good life. While jurisdiction doesn’t come down entirely to property, generally the more

property one has the more options one has in society. As Bou-Habib notes, the relative size of

one’s jurisdiction also affects how bad coercion is for you. For example, if you already have

many resources with which to pursue your conception of the good, being coercively deprived of still further resources is not so costly as it would be if you had fewer resources to begin

with: “How bad it is for us to be forcibly prevented from performing certain actions depends

on how wide a range of valuable actions we are already able to perform.”124

122 Vallier, Trust, 200-1. 123 Gaus, Order, 503-4. 124 Bou-Habib, “Gaus”, 662. 79

As such, it’s intuitive that great disparities in resources will lead to great disparities in the

relative size and extent of member jurisdictions. And given our socio-historical knowledge of oppressive class hierarchies, many members of the public will rightly worry that these

disparities undermine the conditions for sufficient citizenship. They will worry about how the

rich and powerful can use their expanded jurisdictions to exclude, marginalize, and in general

oppress the poor and relatively powerless. The jurisdictional power of the rich and powerful

will provide many members of the public with sufficient reason to demand limits on the

extent of that power, and thus how many resources the rich are allowed to have. They will

also have sufficient reason to endorse an expansion of the jurisdictions of the less fortunate, to allow a more equitable division of the conditions for freedom. The coercive redistribution

from the haves to the have-nots is justified by sufficientarian jurisdictional considerations:

members need sufficient jurisdictions - and so sufficient resources - to realize equitable

relationships qua citizens, and too-large jurisdictions must be limited to assure that oppressive social hierarchies do not arise or are at least mitigated.

So many members will have sufficient reason to see policies of redistributing resources from the well-off to the less-well-off as at least eligible. They will see it as at least one way to compress the risk of oppression that class hierarchies impose, and as an overall beneficial increase in positive freedom to oppressed and marginalized members of the public, in line with members’ sufficientarian intuitions and policy epistemology. The increase in positive

freedom for the vast majority of society will be considered by many members to far outweigh the marginal effects on the upper-class. In other words, a shift in coercion to the upper-class

will come with benefits that greatly outweigh the costs. As Bou-Habib notes: “Other things

being equal, contracting parties should therefore prefer an economic regime that shifts

coercion away from those who are restricted to the smallest range of valuable actions.”125 So

125 Ibid. 662-3. 80

members, given their policy epistemology, will think that robust redistributive policies will

be sufficient - perhaps even necessary - to assure the great good of sufficient citizenship, at

relatively negligible cost. This will in turn generate defeaters for a right to accruing

overly-large amounts of capital, and a justification for rerouting that capital to historically

marginalized groups. This end-goal could be realized through a high progressive tax rate,

where large amounts of resources could be funneled away from the well-off and invested in

programs that would benefit the less well-off. Among those programs may be the

implementation of a universal basic income to provide the poor with additional resources to

both navigate oppressive class hierarchies and flourish according to their evaluative standards;

or the institution of reparations for historically marginalized peoples, which can be used to

mitigate historical injustices and, again, allow for the greater flourishing of those populations.

All of this would be consistent with the attitude of citizenship considered above: the move

toward greater economic equality is motivated by a concern to treat other citizens in a such a

way that adequate recognition is achieved, which realizes the ideal that citizens of a society

can all flourish together.

It may be that these epistemic arguments I’ve considered are controversial - this is

something I will have to address in the next section. But all I’m trying to establish at the

moment is that some, maybe many, members of the public will have sufficient reason to

endorse redistributive policies that they believe will protect them from oppressive social

hierarchies. Other members may think they’re mistaken. But that does not make their

contentions unreasonable.

My argument might also be controversial for more principled reasons. That is, my argument presents a class-based analysis of oppression that may be controversial to some members of the public. Some members of the public may be what we might call

individualists - those who analyze the history of oppression in our society not through the 81

lens of class, but rather as wrongs committed against discrete individuals. This individualist

approach would make these members skeptical of class-based analyses of oppression, as well

as class-based solutions to those problems (for example, affirmative action). As such, these members could have defeaters for my analysis and the egalitarian redistribution supported by

that analysis.

I might deal with this sort of problem in three ways: (1) contend that an individualist

analysis of oppression is unreasonable; (2) show how even individualists will accept egalitarian redistribution as eligible; or (3) admit the individualist defeaters and offer individualists exemptions to my proposed egalitarian redistribution. I’m ambivalent about (3) for reasons I will explore in the final section of the chapter. (1) does not seem promising.

However unlikely or inadequate we might think the individualist picture of oppression is, it seems at least intelligible. And we could imagine a sophisticated individualist approach to oppression that may capture many of our intuitions about what the problems of oppression are and how they are to be solved. So I’m hesitant to say the individualist framework is unreasonable; at any rate, it would take another paper to adequately define and resolve the problem. This leaves (2) as the most promising solution. Could individualists converge on my egalitarian redistributive solution?

I’m tempted to say yes, at least to a limited extent. Any plausible individualist evaluative

standards will have to have some theory of restitution: there has to be some allotment for

correcting the injustices of the past. And any plausible individualist theory will have to allow

that restitution can be paid to persons other than the actual individuals directly harmed by

oppressive actions (e.g. ancestors). So the only objection to egalitarian redistribution an

individualist might have is that this redistribution is not specific enough in addressing past

injustices. The individualist might endorse a narrower egalitarian redistribution, where goods

are redistributed from those who have benefited from oppression to those who have 82

demonstrably been harmed by oppression. So a modified egalitarian redistribution might be

eligible even for individualists. They might endorse reparations for those who demonstrably descended from enslaved persons, for example.

But we might have other reasons to think a full-blooded egalitarian redistribution could

be eligible for individualists. This is for two reasons. First, individualists may still be

compelled by instrumental arguments in favor of redistribution. So even if they don’t accept class analyses of oppression, they may still think egalitarian redistribution is required for a

functioning democracy. Second, even if individualists don’t accept class-based analyses for

principled reasons, they may accept them for practical reasons. For example, an individualist

may be fine with a class-based egalitarian redistribution if doing so would replace a clunky

and corrupt bureaucracy that would determine when someone would be the recipient of a redistribution. This would seem to at least get individualists on-board with a universal basic

income, which would streamline the process of redistribution by just giving it to everyone.

So it is plausible that, for many members of the public, protecting associational rights

will require egalitarian redistribution. According to many members’ policy epistemologies,

realizing adequate relations of citizenship with others will require compressing unequal

distributions of resources. While there will be disagreement as to how much resources are

required to function well as citizens, we should expect some such scheme to garner a great

deal of agreement among members. Again, such a scheme will be endorsed by members of

the public for both intrinsic and instrumental reasons. And even if some sufficientarian-style

redistributive scheme will not be ideal for many members of the public, it will almost

certainly be eligible for most members of the public. So for most members of the public,

redistribution (and a scheme of property rights friendly to such distributions) will be

sufficient to protect associational rights. 83

This move, if successful, would constitute a leftward push for Vallier’s justificatory framework, at least as regards economic institutions. This is not to say that Vallier is an ardent right-winger. For example, Vallier gives attention to feminist concerns about how associational rights can lead to oppression, and argues how these concerns can be accommodated by public reason liberalism.126 In this way Vallier is already sensitive to the sorts of concerns I have discussed above. My argument constitutes a further push to the left

insofar as it contends that members of the public will require that oppressive class hierarchies

be addressed by the compression of inequalities through the redistribution of resources. This is a step beyond the welfare-state capitalism that Vallier endorses, and arguably takes his

view a step closer to the justifiability of property-owning democracy. While my amendment

is not so extreme as that, in my estimation it constitutes a considerable revision to the trajectory of Vallier’s project.

Redistribution and Sub-Public Justification

I’ve defended the first of my two claims: egalitarian distribution will be considered

important for protecting associational rights of citizens for many (if not most) members of the

public. But this is not enough. Given the primacy of non-legal social practices in Vallier’s

justificatory scheme, we must educe whether or not coercive redistribution would be judged

better than other, non-legal means of establishing adequate associations between citizens. The

main hurdle here is policy epistemology. It might be that many members of the public will be

skeptical about whether egalitarian redistribution actually serves the purpose of guaranteeing

and protecting the relevant associational rights. Given such skepticism, some members of the

public will have defeaters for redistribution.

126 Vallier, Trust, 110-113. 84

I think this possibility brings with it its own set of problems, which I will explore in the final section of this chapter. But setting those worries aside, how might we avoid the problem of policy epistemology in justifying egalitarian redistribution?

I believe Vallier’s notion of sub-publics gives us a route to easing the burdens of policy

epistemology. A sub-public is a subset of the public as a whole. I assume it is usually constituted as a distinct community, one usually characterized by shared standards of

justification and/or conceptions of the good or the just. The burdens of justification are eased

for sub-publics in two respects. The first is that sub-publics are much more likely to be

homogeneous in their evaluative standards, which eases the burdens of justification (and so

helps to overcome to problem of dissensus we discussed earlier). The second regards policy

epistemology. Part of the reason policy epistemology is so burdensome at the level of a whole

society is that the potential consequences for botched policies are so high. Policy experiments

can be potentially dangerous, and so the standards of policy epistemology are raised

accordingly. When dealing with a smaller community, however, the demands of policy

epistemology are lessened. The consequences of failure will be less dramatic, and the

potential gains for members of the sub-public might be heightened given their evaluative

standards. This isn’t to say the potential for danger disappears at smaller scales. But it certainly decreases the potential severity of the negative consequences of policy experiments, and so the burdens of policy epistemology are to that extent lessened.

The idea, then, is that we might limit redistributive policy to a sub-public, at least to begin with. That is, redistribution would only occur within the sub-public. This will ease the

burdens of policy epistemology not only by limiting the consequences of failure, but also by

limiting the potential policy epistemologies to a smaller, more homogeneous subset of the

population. Thus there is more likely to be agreement among the members of the sub-public

that their goals will be realized by redistributive policies. And given the homogeneity of 85

evaluative standards in a sub-public, it will be less likely that there will be defeaters for the

policy. Thus, it is much more likely that redistribution-friendly accounts of property rights will be publicly justified for certain sub-publics than for the public as a whole. This helps to defend the second claim: for certain sub-publics, egalitarian redistribution will be judged better than non-legal, social means of generating and protecting adequate relations between citizens.

There is an additional benefit to justification within sub-publics that is worth considering.

Recall that part of the issue regarding policy epistemology at the level of the public as a

whole was that there was uncertainty whether redistributive policy would work out as

planned. Given that the policy could fail dramatically, many members of the public would not

see the policy as worth the risk - thus generating defeaters for the policy. So the increased burden of policy epistemology is a function of epistemic uncertainty about whether the policy will work as intended. But this suggests a way in which sub-publics can in turn help ease the burdens of policy epistemology for the public as a whole. Policies within sub-publics can basically function as epistemic laboratories, where policies can be tested out under conditions where the risks are not so high.127 If a policy works out in a sub-public, this gives the public some additional reason to think that the policy will work for the public as a whole. Thus, allowing these experiments in living within sub-publics can alter how policy epistemology works for the public as a whole. For example, the public as a whole might be skeptical about whether raising the minimum wage would be economically beneficial. One way to ease this skepticism - or prove it to be warranted, on the other hand - is to allow a sub-public to adopt a higher minimum wage and see what happens. If the sub-public endorses higher minimum wages, and thinks it will help them achieve their goals, then the potential harms of this policy experiment will be limited. At worst we learn the policy doesn’t work, the sub-public can

127 I have in mind something like John Stuart Mill’s experiments in living. 86

change course, and no harm was done to the public as a whole. At best we learn the policy

does work, and this gives the public as a whole further reason to adopt the policy.

Given the potential severity of oppressive class hierarchies and their effects, we have

some reason to think the urgency for these kind of social experiments would be quite dire. At

the very least, many members of the public will see the need for novel, perhaps drastic

resolutions to the policy problems raised by oppressive class hierarchies. As such, while

policy epistemology may disallow governments to institute robust changes at a national level,

it would incentivize governments to facilitate these kinds of policy experiments, or at least

not to stifle them. If the policy experiment goes well, this will help to ease the burdens of

policy epistemology, and help to justify a larger experiment (say at the state level).

Governments may also take note of other nations’ successful policy practices as starting points for their own policy experiments. For example, nations may look to the success of

Bolsa Familia as a model of their own policy experiments to reduce poverty.128

This experimental approach to policy crafting may help to answer a further objection to

my argument in the previous sections. We might imagine members of the public who accept my argument when it comes to economic class, but not when it comes to cultural class. That

is, while they might see redistribution as justifiable on the grounds that it undermines oppressive economic class hierarchies, they may be skeptical that redistribution will aid in undermining other oppressive class hierarchies (racial class hierarchies, for example). This skepticism needn’t be thorough: for instance, they might think that redistribution would contribute some to undermining racial class hierarchies. But given the rigors of policy epistemology, and the potentially complex interactions between economic redistribution and class hierarchies, they may have defeaters for robust economic redistributions specific to

128 For a defense of the public justification of Bolsa Familia, see Vallier, Trust, 169-71. 87

resolving racial, sexual, and other cultural oppressions. They may have objections to a system

of reparations, for example.129

I think such defeaters are unlikely to occur for finer grains of policy, though. Ex

hypothesi, the members of the public already accept something like my explanation for

oppressive economic class hierarchies. This, combined with the lower stakes of

experimentation for finer-grained policy, will give such members of the public sufficient

reason to endorse redistributive policy experiments. Again, given the urgency with which

such problems need be solved, this gives us reason to try various plausible avenues, including

the one I have suggested. These members will want to keep an eye on whether these kinds of

economic interventions help alleviate cultural class hierarchy problems in the way I’ve

suggested they would. If they do, this provides further justification for experimentation along those lines as a means to further alleviate those hierarchies.

Of course, egalitarian policy experiments may not go my way; they may ultimately show

that more right-leaning economic policies will function better. That’s an empirical matter,

one that cannot be settled a priori. But as I’ve pointed out in the second chapter, policy epistemology has not just empirical but normative content, such that we have to ask how well-functioning a policy is relative to what goals. We might find that egalitarian policies have unexpected economic costs. This may cause problems that I will address in the final section of this chapter. But if I am correct that moderately idealized members of the public will value policies that will compress inequalities that generate oppressive class hierarchies; and if we have good reason to think that egalitarian redistribution will help to alleviate oppressive class hierarchies, as I’ve argued above; then we in turn have good reason to think that, despite potential economic costs, members will have sufficient reason to endorse those egalitarian redistributive policies. Doing so will meet the rigors of policy epistemology for

129 My thanks to Kevin Vallier for this objection. 88

important normative reasons, which will give members reason to endorse the policy in spite of potential economic costs.

Exemptions and the Limits of Political Association

Suppose that egalitarian redistribution is publicly justified to most members of the public

for the reasons described above. It might still be that there are members of the public that will have defeaters for this policy. That is, they might disagree that egalitarian redistribution - even on sufficientarian grounds - is required to guarantee important associational rights of

citizens toward citizens. They might be convinced that redistribution is manifestly and deeply

unjust, even in its milder forms. Or members may reject egalitarian redistribution for more

practical reasons. For example, some members may considerably value economic growth,

and the results of policy experimentation may show that the economic costs of redistribution

are too great for their tastes. Or finally, there may just be members of the public who do not

value the moral good of citizenship. If we can live with each other without really caring for

each other, what’s the harm in that? How are we to address the complaints of members of the

public such as these?

One plausible way open to Vallier is to grant these members of the public exemptions to redistributive policy. They would be excluded from the benefits of such a program, but also

would not have to pay into it. Allowing exemptions may make redistributive policy eligible

for these dissenting members of the public. This would remove their defeaters from the

justificatory pool, and allow the justification of redistributive policy to move forward.

I’m ambivalent about this kind of response to the disagreement in question. On the one hand, it seems to resolve the justificatory problem tidily. If some members of the public don’t like the policy, can’t we just let them opt out? At the end of the day, everyone seems happy: the vast majority of members of the public get the policy they want without objection because other members opt out of a policy they don’t want. On the other hand, the contention seems 89

to be that, despite these disagreements, at the end of the day these members of the public still constitute a public as a whole. That is, they all remain citizens of the same public. And this is where the exemption method strikes me as odd. Because since the disagreement is about the character of the relationship between members of the public as citizens, the exemption is an exemption from a certain conception of what it means to be a citizen. And so again at the end of the day we have a citizenry that cannot agree on what it means to be a citizen of the same public. They disagree about what is required to recognize another individual as a citizen.

Vallier might respond that this doesn’t have to be a big deal. Members of the public can

still trust one another, and ultimately that’s all the consensus on citizenship that we require.

But I’m skeptical about this response, because I’m unsure whether trust can survive these

kinds of deep disagreements. I suspect this is true for two reasons. The first is that I’m unsure

trust can survive over time when different conceptions of the citizen must coexist. I suspect

that when a society has coordinated on a certain conception of the citizen - as I’ve supposed

for purposes of this section - those who refuse to abide by those standards, those who see

them as unreasonable, become alienated from society. The majority no longer see them as

willing to abide by norms that govern what citizens owe to one another. To put it another way,

the norms that allow for coexistence within a society do not apply across sub-publics. So it’s

not so much like they are distinct sub-publics, but that they are becoming different publics

altogether. These groups are essentially forming different nations, which vastly changes the

justificatory structure of their relations to one another. Exemptions, when involving these

kinds of deep disagreements, essentially amount to secession. As such, the move to allow

exemptions in this case is much more extreme than it first appears.

The second reason I suspect trust cannot survive these deep disagreements is that some

of the conditions of trust may be undermined by these kinds of disagreements. Vallier

articulates a necessary condition for trust in Must Politics Be War?: 90

A trusts B to Φ only when A has a goal, believes that participant B’s Φing is

necessary or helpful for achieving the goal, and that B is willing and able to Φ by

complying with social norm S where moral reasons are sufficient to motivate B to

comply with S.130

So trust arises between members of the public only when members have goals, other

members’ actions are necessary or helpful for achieving those goals, and members are willing

and able to act in that way while motivated by moral reasons to comply with social norms

prescribing those actions.

I want to focus on the second part of this necessary condition - that trust arises only if

members’ actions are necessary or helpful for achieving members’ goals. Now we have

already supposed that there is deep disagreement about what being a citizen of the public

requires. The goals of being treated well as a citizen - especially for some members of the

public - will be very highly-ranked goals. But if we grant exemptions based on disagreements

about what it means to be a citizen, then for some very highly-ranked goals some members of

the public will be unnecessary or unhelpful for realizing those goals. So this condition on

trust is to that extent undermined. It may not undermine trust entirely - we may still trust

members on some lower-ranked goals. But it’s my contention that a major tent-pole of trust,

the relation between citizens, cannot survive this kind of deep dissensus. To that extent trust

may be very weak between members of the public that disagree about citizenship. At worst, it

may approximate the relations neurotypical members of the public stand in to sociopaths: we expect them to act out of their own self-interest, but to a large extent the moral relations between members will be sorely undermined. Again, this may give us some reason to think exemptions amount to secession in this case. Given deep disagreements about citizenship,

130 Vallier, Politics, 28. 91

there’s a very real sense in which members cannot live with each other in the same way they

could if disagreement wasn’t so deep.

If I’m right about this, a substantive degree of trust between members of the public may

not survive deep dissensus about citizenship. This amounts to deep disagreement about the

fundamental relationship between members of the public, one that most members of the

public will care about for intrinsic and instrumental reasons. And if trust can’t survive within a public, that may give us good reason to think that we aren’t dealing with a single public at all, but discrete publics defined by vastly distinct conceptions of citizenship. And the justificatory relations and trust between these communities may be very different than those within a single, united community. This is not to say the problems presented are insurmountable. But they might suggest that Vallier’s trust analysis of public reason might require it’s own law of peoples.131

The result of this kind of disagreement needn’t be disastrous to be troubling. We may

still be able to “truck, barter, and exchange” with one another, as Vallier hopes.132 That is, we may still be able to realize some of the goods of society despite disagreements about citizenship: for example, the orderly competition for resources and recognition. Economics has shown us that this is one of the miracles of exchange: through it all can benefit from the same number of resources. But I worry that great dissensus about citizenship undermines the moral value of trust. As Vallier says, “there is something morally attractive about being able to trust strangers; by coming to see others as worthy of our trust, we can better appreciate their dignity and form valuable relationships with them.”133 This moral feature of trust cannot survive dissensus on citizenship unscathed. We cannot reach a state where we agree that the moral dignity of everyone is recognized by everyone else because there is disagreement about what respecting the moral dignity of others requires. There is

131 I thank Ryan Fischbeck for helping me see this point. 132 Vallier, Politics, 17. 133 Ibid. 92

disagreement about what the attitude of citizenship requires of us, and so disagreement about whether citizens are being adequately recognized. This may in turn undermine our ability to form relationships of love and friendship with those of vastly different political affiliations -

at least, not in a way where our political commitments and our moral commitments do not live in a kind of uncomfortable dialectic. This isn’t to say that any form of exemption undermines our ability to form these kinds of relationships with each other. We might think we could still be friends with and love the Amish, for example. But I contend that the sorts of disagreements about citizenship that we canvas here - particularly thoroughgoing disagreements about the requirements of economic justice - undermine the moral value of trust. They are, after a fashion, beyond the pale.

Further, I worry that these disagreements are the sort that cut to the core of our political identities. For is this tension between property rights and redistribution not the libertarian/egalitarian debate reborn?134 And if I’m correct that issues of property rights and redistribution are not independent of one another, there are fewer options for resolving that conflict within the context of public reason. While libertarians and egalitarians may be able to live with each other, they may be caught in a political modus vivendi. This may be theoretically uncostly for Vallier, given his emphasis on non-political social arrangements.135

But insofar as our theoretic model is meant to help us address our real-world political

problems, and insofar as shared political life is an indelible part of overall life, this moral cost

may be baked into the fundamental disagreement of Western political society.

One might worry that I’m being arbitrary in my concerns about what we may call

citizenship pluralism. My worry has been that important moral values will not survive

pluralism about what it means to be a citizen. But part of the project of public reason

liberalism is that we can justify policies despite deep-cutting pluralism about the good and the

134 Thanks again to Fischbech for emphasizing this point. 135 Vallier, Politics, 132-3. 93

just. So as a public reason theorist myself, why am I so concerned about citizenship pluralism,

when I presume that good pluralism and justice pluralism can be surmounted while maintaining these important moral values?

My response to this worry is that, despite the public-reason liberal’s concern with pluralism, we can’t have pluralism all the way down. There must be some point on which members of the public can agree if they are to constitute a public at all.136 One way to put

this idea is that the the costs of pluralism are additive. The more pluralism we introduce into the public reason model, the harder it is to discern what, if anything, can be publicly justified

for a public.137 Pluralism about the good seems surmountable. Pluralism about justice makes

things harder, but I believe it can be accommodated.138 But for the reasons I’ve reviewed above, I’m unsure whether citizenship pluralism can be accommodated without a breakdown in the public-reason liberal project. At some point the pluralism is too much, and we must concede that the justificatory project must find common ground or fail. Citizenship is where I draw that particular line.

My argument here should not be construed as a wholesale rejection of exemptions as a solution to justificatory problems. Surely there are some forms of exemptions that are beneficial, and worth having. For example, allowing draft exemptions for conscientious objectors seems to be an overall good. Rather, my contention is that exemptions are not a

costless solution. In the case of draft exemptions, it seems as though the cost of exemptions is small, and the benefit great: we allow people to live in accord with their evaluative standards, while still allowing a beneficial policy to be enacted. The costs and benefits of such an exemption outweigh the costs of not having the exemption at all, which would require either

(a) having the policy in question defeated, or (b) forcing members of the public to act against

their closely-held moral beliefs. This cost/benefit analysis might also hold for more robust

136 Ryan Fischbech put this sentiment very well in conversation: “We can’t have social contract pluralism!” 137 I thank Vallier for this helpful framing of the problem. 138 Some, like Quong, may want to abandon the pluralism ship here. 94

exemptions to the requirements of civic life, like those provided to the Amish. But in the case of exemptions for redistribution, allowing exemptions comes at a considerable moral cost, and may force us to lose out on an important good: realizing a shared conception of citizenship to which everyone contributes. Undoubtedly, not allowing exemptions in this case will come with its own moral costs. It might lead to the alienation of some members of the public, who would be forced into contributing to a policy to which they object. But this is just to say that there are costs and benefits on both sides of the ledger, costs and benefits that must be weighed against one another. And ultimately I’m not convinced that the convictions against redistribution are so considerable and closely-held that they would overcome the great good of redistribution - and a shared conception of citizenship - by any members’ lights. 95

BIBLIOGRAPHY

Anderson, Elizabeth. “What is the Point of Equality?” Ethics 109 (1999): 287-337.

Billingham, Paul. “Does political community require public reason? On Lister’s defense of

political liberalism.” Politics, Philosophy & Economics 15, no. 1 (2016): 20-41.

Bou-Habib, Paul. “Gaus on Coercion and Welfare-State Capitalism: A Critique.” Political

Studies 64, no. 3 (2016): 651-665.

Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986.

Enoch, David. “The Disorder of Public Reason.” Ethics 124, no. 1 (2013): 141-176.

Gaus, Gerald. The Order of Public Reason: A Theory of Freedom and Morality in a Diverse

and Bounded World. Reprint edition. New York: Cambridge University Press, 2012.

Lister, Andrew. Public Reason and Political Community. New York: Bloomsbury, 2013. de Marneffe, Peter. “Liberalism, Liberty, and Neutrality.” Philosophy & Public Affairs 19

(1990): 253-274.

Quong, Jonathan. Liberalism without Perfection. New York: Oxford University Press, 2011.

Rawls, John. Political Liberalism. Expanded edition. New York: Columbia University Press,

2005.

Scanlon, T.M. “Rawls on Justification.” In Samuel Freeman, ed., The Cambridge Companion

to Rawls, 139-167. Cambridge: Cambridge University Press, 2003.

Vallier, Kevin. Liberal Politics and Public Faith: Beyond Separation. New York: Routledge,

2014.

Vallier, Kevin. “Public Reason and Political Community.” Notre Dame Philosophical

Reviews. University of Notre Dame, November 4th 2014.

https://ndpr.nd.edu/news/public-reason-and-political-community/

Vallier, Kevin. Must Politics be War?: Restoring Our Trust in the Open Society. New York:

Oxford University Press 2019. 96

Vallier, Kevin. Trust in a Polarized Age. New York: Oxford University Press, 2020.

Watson, Lori and Christie Hartley. Equal Citizenship and Public Reason: A Feminist

Political Liberalism. New York: Oxford University Press, 2018.