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A THEORY of JUSTICE PLURALISM by Adam Gjesdal A Theory of Justice Pluralism Item Type text; Electronic Dissertation Authors Gjesdal, Adam Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction, presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 26/09/2021 03:50:42 Link to Item http://hdl.handle.net/10150/634403 A THEORY OF JUSTICE PLURALISM by Adam Gjesdal __________________________ Copyright © Adam Gjesdal 2019 A Dissertation Submitted to the Faculty of the DEPARTMENT OF PHILOSOPHY In Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY In the Graduate College THE UNIVERSITY OF ARIZONA 2019 3 Acknowledgments I wish to thank the Institute for Humane Studies, the Mercatus Center at George Mason University, and the Center for the Philosophy of Freedom at the University of Arizona for financial support that freed so much of my time for research. Shauna Garland, Debbie Jackson, Sandra Kimball, and Gayle Siegel have been kind and patient sources of support, administrative and otherwise. Each member of my committee—Tom Christano, Jerry Gaus, Dave Schmidtz, and Steve Wall—exemplifies a different style of philosophizing and provides a different inspirational model for how to grow as a scholar, and I have learned much from each of them. Communicativeness not being one of my vices, I have not discussed this dissertation with many people outside of my committee. But I wish to single out and thank Phil Smolenski, Kevin Vallier, and Chad Van Schoelandt for helpful conversation. Jerry Gaus has been overwhelmingly generous with his time mentoring me. Whatever merits this dissertation may have are all due to his influence. I expect to look back in a few years on this dissertation as less than a journeyman’s work, so it is with some embarrassment I dedicate it to anyone. With embarrassment, then, I dedicate it to Jerry. 4 Table of Contents Abstract 5 Introduction 6 Chapter 1: Justice Pluralism and Political Liberalism 12 Chapter 2: Political Liberalism without Epistemology 36 Chapter 3: Justice Pluralism and Optimal Legitimacy 65 Chapter 4: Abortion and the Limits of Optimal Legitimacy 105 Gjesdal Dissertation 5 Abstract Political liberalism aims to describe how a free, liberal political order can be justified in societies marked by deep, intractable disagreement about matters of religion, philosophy, and morality. My dissertation explores the implications for political liberalism of justice pluralism: the view that reasonable citizens can disagree over which theory of justice, of a set of eligible or “reasonable” theories, is best. I argue that the values of political liberalism that lead to acknowledging a pluralism of reasonable comprehensive doctrines also lead to seeing political liberalism as a two-level theory. There is the meta-level of political liberalism per se, and the level of specific conceptions of justice. Political liberalism per se respects reasonable disagreement about the design of an original position argument, seeing no single design as the most reasonable. Specific conceptions of justice like Rawls’ justice as fairness, in contrast, take a stand on which specific design of an original position argument is the most reasonable. As a result, at each level, political liberalism has different constraints on the claims it can make about the nature of a just society. The difficult challenge is to articulate in just what sense a reasonable citizen can embrace the meta-theory of political liberalism, which sees many reasonable conceptions as on par, while nevertheless, reasonably advocating their favored conception as the best. This dissertation attempts to meet this challenge, showing that while political liberalism per se does not take sides in disputes between reasonable conceptions of justice, it is open to citizens to embrace one conception that guides their reasoning about a range of political matters. Gjesdal Dissertation 6 Introduction Liberal institutions encourage reasonable disagreement by instilling in citizens the idea that they are politically free and equal. Reasoning under this self-conception, citizens naturally develop a pluralism of conceptions of the good life. They also develop a pluralism of conceptions of the just society. Call this the thesis of reasonable disagreement. This thesis predicts that reasonable disagreement is, in Rawls’ words, “the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime.”1 The thesis implies nothing about how these institutions should work, or how citizens living under them should act. For that we must turn to what Stephen Macedo calls “the moral lodestar” of the political liberal project: the principle of public justification.2 We are concerned here with a formulation of this principle requiring that exercises of political power be justified to citizens in terms they can accept as free and equal.3 The thesis of reasonable disagreement and the principle of public justification together seem to have the troubling implication that, for political liberals, justice cannot justify political power. Together, the thesis and principle imply that exercises of political power should not be justified by 1 John Rawls, Political Liberalism. Columbia University Press, 2005, xvi 2 Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism. Oxford University Press, 1990, 78. 3 In formulating the principle of public justification this way, I am following Rawls and his criterion of reciprocity, which in the unpublished, revised version of Political Liberalism requires that exercises of political power be acceptable to citizens “as free and equal.” See HUM 48, Box 30, folder 3, “Lecture IV: The Idea of Overlapping Consensus,” Harvard University Archives, 108. Other theorists—Gerald Gaus is the prominent example—formulate the principle quite differently, requiring instead that citizens (or idealized members of the public) have “sufficient reason to endorse” publicly justified laws, rather than that those laws be acceptable to them as free and equal. This dissertation focuses exclusively on the Rawlsian formulation. Gaus offers his alternative formulation of the principle at: The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World. Cambridge University Press, 2011, 263. For an extensive discussion of the merits and objections to the “sufficient reason to endorse” formulation, see Kevin Vallier. Public Justification. Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/justification-public/. Gjesdal Dissertation 7 appeal to doctrines the truth of which are in reasonable dispute. Regarding these doctrines, some citizens reject their truth as a consequence of reasoning under the conception of themselves as free and equal. These citizens cannot accept these doctrines as free and equal, in the very specific sense that they reject their truth while reasoning as free and equal. Because these doctrines include conceptions of justice, political liberals’ own commitments seem to imply that conceptions of justice cannot justify exercises of political power to all reasonable citizens. Political liberals must show this implication does not follow, if conceptions of justice are to have a justificatory role in the theory of political liberalism. This dissertation develops a two-level theory of political liberalism to reconcile the thesis of reasonable disagreement with the principle of public justification. On the two-level view, all reasonable citizens endorse a set of political values, but they reasonably disagree about how these values are best interpreted and ordered into a political conception. The very best interpretation and ordering yields the political conception that is most reasonable. What distinguishes the two-level view from other theories of political liberalism is its commitment to viewing no single conception of justice as uniquely most reasonable. The two-level view embraces justice pluralism, holding that there is a family of most reasonable political conceptions of justice. This family of most reasonable political conceptions constitutes the second level of the two-level theory. The first level is that of a single conception of justice that a citizen justifiably regards as most reasonable. Thus the two-level theory views reasonable citizens in liberal societies as deliberating within three mutually interacting evaluative frameworks: The family of most reasonable political conceptions (2nd level of political liberalism) A single most reasonable political conception of justice (1st level of political liberalism) A reasonable comprehensive doctrine We reconcile the thesis of reasonable disagreement with the principle of public justification as Gjesdal Dissertation 8 follows. Citizens reasonably disagree at the first level about which conception of justice is most reasonable. At the second level, any member of the family of most reasonable political conceptions offers terms citizens can accept as free and equal. Both levels describe standpoints citizens adopt. The first level describes the standpoint of a citizen deliberating about which proposed law to support, and the second level, that of a citizen evaluating the legitimacy of enacted law. The two-level theory assumes all citizens honor what Rawls
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