Copyright (c) 1993 San Diego Law Review Association
San Diego Law Review
30 San Diego L. Rev. 729
LENGTH: 16452 words
ARTICLE: Constructing an Ideal of Public Reason *
* copyright 1993 by the Author.
LAWRENCE B. SOLUM **
** Associate Dean for Academic Affairs, Professor of Law, and William M. Rains
Fellow, Loyola Law School, Loyola Marymount University. My thanks to Don
Brosnan, Ned Foley, Sharon Lloyd, Ed McCaffery, Michael Perry, Robert Post and
Roger Shiner for comments on drafts and to John
Rawls for discussion and commentary on other material incorporated into this Article.
... An ideal of public reason can provide guidance on these issues. ... The
exchange between Perry and Smolin has a second implication for the content of a
liberal ideal of public reason. ... With a core notion of the role and
justification of an ideal of public reason in place, I now turn to the content
of the ideal. ... This section explores the possible structures of an ideal of
public reason by discussing distinctions about the content of such an ideal.
... For example,
Rawls limits his case for an ideal of public reason to public debate about the
constitutional essentials and basic liberties. ... Some other criteria must be
formulated to give content to an ideal of public reason. ... The final
proposal is to formulate an ideal of public reason that excludes from public
debate all reasons that are nonpublic. ... The proposal is that an ideal of
public reason might be given content by a principle excluding any direct role
for nonpublic reason in public debate or discussion. ... The ideal of public
reason supports the exclusion of racist, sexist, and homophobic speech from
public debate over the use of coercive state power. ...
How should citizens in a modern pluralist democracy debate and discuss public
affairs? There is wide agreement that the government should not censor public
debate about politics, at least not without very good reason. But when it comes
to a related question of political morality --
"To what ideal should citizens aspire in political debate?" -- the issue is cloudy. For example, some have argued that religious reason
should be excluded from public debate; others argue for the exclusion of
statements which degrade people on the basis of their religion, race or
ethnicity. Still others contend that in public debate, an ideal of political
morality should mirror the freedom of expression: all viewpoints should contend
in a marketplace of ideas. An ideal of public reason can provide guidance on
these issues. Thus, an investigation of the idea of public reason may
illuminate the relationship between religion and politics.
This Article undertakes the construction of an ideal of public reason.
n1 It begins with an investigation of the idea behind the phrase
"public reason"-- focusing on the work of John
Rawls. The idea is further developed by considering the various possibilities for an
ideal or normative standard of public reason. As each option is considered,
some possible formulations are discarded and additional specifications are
added. The penultimate section of the Article restates the ideal that is
constructed through this process of elaboration, evaluation, and elimination.
Finally, a brief survey of historical uses of the
[*730] idea of public reason is contained in the Appendix to this Article.
I. THE IDEA OF PUBLIC REASON
"public reason" is ambiguous and might be used to express any number of distinct ideas. As
used in this Article,
"public reason" refers to the common reason of the public in its capacity as citizens
constituting a polity. An ideal of public reason is a normative standard for
the use of public reason. The phrase,
"public reason," has a number of uses -- some distantly and others closely related to the use
in this Article. This section explores the use of public reason in contemporary
political philosophy. I will focus on
Rawls' idea of public reason, along with related uses by others.
Rawls' notion of public reason has already received considerable attention from legal
n3 and philosophers
n4 and will serve as a focus for discussion. The idea of public reason was
introduced in several of his essays in the 1980s,
n5 was extensively developed in his Melden Lectures entitled
"The Idea of Free Public Reason" delivered in 1990,
n6 and published in revised form in
Political Liberalism in 1993.
In an early formulation,
Rawls explained what he has called the
"idea of free public reason":
Great values fall under the idea of free public reason, and are expressed in
the guidelines for public inquiry and in the steps taken to secure that such
inquiry is free and public, as well as informed and reasonable. These values
include not only the appropriate use of the fundamental concepts of judgment,
inference, and evidence, but also the virtues of reasonableness and
fair-mindedness as shown in the adherence to the criteria and procedures of
common sense knowledge, and to the methods and conclusion of science when not
controversial, as well as respect for the precepts governing reasonable
Although this discussion contains the core of the
Rawls' position, a few additional points deserve separate discussion.
Rawls understands public reason as the reason of a political society. A society's
reason is its
"way of formulating its plans, of putting its ends in an order of priority and
of making its decisions accordingly."
n9 Public reason contrasts with the
"nonpublic reasons of churches and of many other associations in civil society."
n10 Both public and nonpublic reason share features that are essential to reason
itself, such as simple rules of inference and evidence.
n11 Public reasons, however, are limited to premises and modes of reasoning that
can appeal to the public at large.
Rawls argues that these include
"presently accepted general beliefs and forms of reasoning found in common
sense, and the methods of science when these are not controversial."
n12 By contrast, the nonpublic reason of a church might include premises about the
authority of sacred texts and modes of reasoning that appeal to the
interpretive authority of particular persons.
Second, the limits imposed by
Rawls' ideal of public reason do not apply to all actions by the state or even to all
coercive uses of state power. Rather, his ideal is limited to what he calls
"the constitutional essentials" and
"questions of basic justice."
n13 Thus, the scope of the freedom of speech and qualifications for the franchise
would be subject to the Rawlsian ideal, but the details of tax legislation and
the regulation of pollution control would not.
Rawls' ideal of public reason applies to citizens and public officials when they
engage in political advocacy in a public forum; it also governs the decisions
that officials make and the votes that citizens cast in elections. The ideal
does not apply to personal reflection and deliberation about political
questions; by implication it could not apply to such reflection or deliberation
about questions that are not political in nature.
With these features in mind, we can offer a summary of the Rawlsian ideal of
public reason; this ideal has three main features: (1) The ideal of public
reason limits the use of reason to (a) the general features of all reason, such
as rules of inference and evidence, and (b) generally shared beliefs,
common-sense reasoning, and the noncontroversial methods of science. (2) The
ideal applies to deliberation and discussion concerning the basic structure and
the constitutional essentials. (3) The ideal applies (a) to both citizens and
public officials when they engage in public political debate, (b) to citizens
when they vote, and (c) to public officials when they engage in official action
-- so long as the debate, vote or action concerns the subjects specified in
Rawls' view in mind, we proceed to two preliminary subjects: first, the role of the
idea of public reason in the regulation of public discourse and, second, the
ways in which a particular ideal of public reason might be justified.
II. THE ROLE AND JUSTIFICATION OF PUBLIC REASON
In this part of the Article, I will examine two issues that set the foundation
for specifying and justifying a liberal ideal of public reason. The first issue
concerns the role of an ideal of public reason; the second issue concerns the
standards by which the case for such an ideal should be measured.
A. The Role of an Ideal of Public Reason
Public reason is the common reason of the public at large -- in our case, the
citizenry of a democratic society. Of course, an understanding of the role of
an ideal of public reason requires a prior understanding of the role of public
reason itself. Thus, the discussion that follows assumes a notion of that
purpose similar to that advanced by
Rawls: Public reason is the reason of the public as the citizens of a democratic
polity. Public reason is used in political debate in the public sphere and is
used by public officials to justify the Constitution, laws, executive actions,
and judicial decisions.
An ideal of public reason, or standard of civility, is intended to
[*733] serve a regulative role. More particularly, an ideal of public reason
regulates public reason-giving practices in two ways: (1) as a standard for
self-evaluation and, (2) as a standard for political criticism. Each of these
aspects of the role deserves comment.
An ideal of public reason serves as a standard for self-evaluation in the
sense that it can be used by citizens to guide their own use of reason in the
public sphere. One can ask,
"What kinds of arguments should I give or refrain from giving in public
political debate?" An ideal of public reason answers this question by articulating a set of
reasonable standards of civility to one's fellow citizens. The first role for
an ideal of public reason assumes voluntary compliance. In this role, the ideal
is affirmed voluntarily because it is seen as reasonable by members of a
An ideal of public reason can serve another role -- as a standard for the
political criticism of argument in the public sphere. One can ask,
"When is it proper for me to criticize the argumentation of a fellow citizen on
the ground that the reasons offered transgress the limits of civility?" An ideal of public reason answers this question by defining standards for
political criticism of reasons given in public. The second role of public
reason does not assume coercive enforcement by the state, as such enforcement
would violate the political right of freedom of expression. But the second role
of public reason does not rule out the use of social pressure to encourage
compliance with the ideal. Political criticism can change behavior in two ways:
(1) by offering reasons that are accepted and, (2) by communicating disapproval
that motivates because of citizens' desires for the approval of their fellows.
B. Justifying an Ideal of Public Reason
In the case of a noncompulsory ideal of public reason, we must formulate the
ideal and provide justifications for it that are addressed to those for whom
the ideal is intended to have normative force. The ideal must be one which they
could reasonably accept, and the justifications must be reasonably persuasive.
Why should these limits be observed? Consider two answers.
One answer is instrumental: a noncompulsory ideal of public reason must
generate its own support. If the ideal and its justifications cannot reasonably
be accepted by significant groups in our polity, then the ideal will not serve
the purpose of facilitating and regulating deliberation in the public sphere.
The second answer is based on the idea of respect for one's fellow
[*734] citizens as free and equal. The force of this reason can be illustrated by
examining David Smolin's review
n16 of Michael Perry's recent book, Love and Power.
n17 In that book (his position has since changed),
n18 Perry argued for an ideal of
"ecumenical political dialogue"
n19 that includes basic standards of civility and commitment to two attitudes
"fallibilism and pluralism."
n20 Fallibilism requires a commitment to the idea of self-critical rationality,
and pluralism involves the affirmation that moral pluralism can result in
richer moral insight than moral monism.
n21 Smolin's review objects to these requirements from the perspective of an
n22 Christian perspective.
In particular, Smolin argues,
"Perry's theory excludes from dialogue those groups unwilling to accept the
dialogic virtues of fallibilism and pluralism and the consequent distinction
between religious faith and religious belief."
n23 Smolin argues that Perry's ideal would exclude members of various evangelical,
fundamentalist, and pentecostal Protestants and traditional Catholics,
Anglicans and Lutherans.
n24 He then argues,
"Those excluded by Perry's criteria, such as myself, are going to protest that
their exclusion is unfair."
n25 Smolin does not offer a reason for his charge of unfairness at this point, but
moves to another line of critique.
"More importantly, those excluded, who comprise a culturally significant and
politically active portion of the population, are less and less willing to
accept the kind of exclusion Perry perpetuates."
n26 Why unwilling?
Perry . . . makes no serious attempt to persuade those he excludes of the
propriety of their exclusion. Why should those who view pluralism and
fallibilism as vices accept them as norms of civic virtue? Why should those who
consider Perry's distinction between religious faith and religious belief to be
heretical be persuaded by a vision of dialogue premised on acceptance of this
distinction as the mark of
Smolin's point is that Perry has not offered reasons for his ideal of
[*735] ecumenical discourse that could be taken as reasonable by someone who shares
Smolin's convictions. Perry offered reasons from within his comprehensive
religious view. But from within Smolin's own and quite different religious
conception, Perry's starting points are not axiomatic. Indeed, some of Perry's
premises are heretical from Smolin's evangelical perspective. In an Article
written after Smolin's review, Perry expresses concern about Smolin's objection
and retreats somewhat, stating that
"the essential criterion $ (for ecumenical dialogue$ ) is less fallibilism than
The exchange between Perry and Smolin has an important lesson for the question
at hand: What sort of justification should be given for an ideal of public
reason? An ideal of public reason must be justified by arguments that can be
accepted as reasonable by members of the public to which the ideal is
addressed. By formulating and arguing for his ideal of ecumenical discourse
from a liberal Catholic perspective, Perry advanced reasons that could not be
accepted as reasonable by Smolin, who rejected many of Perry's religious
premises. Smolin asks for arguments that he can view as fair and reasonable
from his evangelical perspective.
The point of the exchange between Smolin and Perry can be expressed in the
following more abstract (yet illuminating) formulation: An ideal of public
reason is reflexive in the sense that it applies to its own public
justification. An ideal of public reason must be justified by public reason.
Moreover, this requirement of justificatory reflexivity has implications for
the content of the ideal. An ideal should include the idea that public reason
gives citizens reasons that are public, in the sense that they could reasonably
be considered as motivating by those to whom they are addressed. This point is
reinforced by the role of public reason. For example, one role of public reason
is to give citizens reasons to obey the law of their own free will on the basis
that the law is reasonably justified. If the sole justification for a law is a
nonpublic reason (such as a deep premise of a comprehensive moral theory or a
sectarian religious view), then there will be many citizens who cannot obey the
law because on the ground that they see the law as reasonably justified --
although they still may obey because of fear of punishment.
The reflexivity of public reason has a practical corollary: An ideal of public
reason will emerge in a public political culture as a result of public debate
and discussion. As a practical matter, the ideal will
[*736] change over time and debate over the contours of the ideal will itself be
shaped by the prevailing ideal at any given point in time.
The exchange between Perry and Smolin has a second implication for the content
of a liberal ideal of public reason. Such an ideal should include the idea that
public reason gives citizens reasons that are reasonable in the sense that they
are limited by the principle of fairness. Smolin's objection that Perry's ideal
of ecumenical dialogue is unfair can be reconstructed as an argument based on
the notion of respect for other citizens as free and equal. Such respect does
not mean only giving other citizens reasons which they already accept as true.
Treating others as free and equal does not mean catering to existing beliefs
and desires; indeed, one could argue that catering to existing beliefs and
desires is disrespectful because it treats others as unreasonable. The
principle of respect for citizens as free and equal does mean that we should
give our fellow citizens the sort of reasons that they could reasonably accept.
The modal operator
"could" is crucial here. The requirement is not to give reasons that all or most of
one's fellow citizens will accept; rather the requirement is to give reasons
they reasonably could accept. For example, an ideal of public reason that
excluded Smolin from public discourse is not one that he reasonably could
accept -as Smolin himself argued. A more inclusive ideal may not be one that he
does accept -- he might think that atheist or blasphemous discourse ought to be
excluded from public discourse, but the inclusive ideal is one that he
reasonably could accept. This ideal does not treat him as a second-class
With a core notion of the role and justification of an ideal of public reason
in place, I now turn to the content of the ideal. The following section
outlines basic distinctions about the possible structures of an ideal of public
III. THE STRUCTURE OF IDEALS OF PUBLIC REASON
This section explores the possible structures of an ideal of public reason by
discussing distinctions about the content of such an ideal. Each distinction
marks a dimension in conceptual space: Any ideal of public reason will occupy a
particular position with respect to each of the dimensions that is identified.
If this point seems too abstract, consider a less formal version. We can
imagine many different ideals of public reason. Can we organize and categorize
their features to systematize the ways in which they differ?
A. Distinction One: Four Contexts to Which an Ideal of Public Reason Might
The first distinction relates to the domain of deliberation and discussion to
which an ideal of public reason might be applied. At one extreme, an ideal
might apply to all reasoning, whether deliberation or discussion, whether
public or private, about any topic whatsoever.
n29 At the opposite extreme, we might imagine an ideal that was limited to the
most formal and public uses of reason. For example, only the written opinions
of the courts of law and the texts of statutes and executive orders might be
subject to the requirement. For practical purposes, we can distinguish four
contexts in which an ideal of public reason might be applied.
Call the first context
"private deliberation and discussion." The first context is important because it marks the domain to which an ideal
of public reason does not apply. Thus, private deliberation about private life
is not regulated by the ideal. By private deliberation, I mean the use of
reason by an individual without discussion with others. By deliberation about
private life, I mean deliberation about one's life plan, one's intimate
associations, one's family and so forth. In addition, private discussion about
private life is not the subject of an ideal of public reason.
In a sense, all discussion could be said to be public (or exterior) in that
discussion involves more than one participant. This is not the sense in which
"public" is used in the phrase
"public reason." Discussions that are not addressed to the public at large include those
between family members or within voluntary associations. These discussions are
private for the purposes of an ideal of public reason.
Call the second context
"public discussion about ethics and culture." One can imagine the formulation of an ideal of public reason that did apply to
this context. It could be argued that any use of reason that is addressed to
the public at large should be subject to the ideal of public reason. Moreover,
for some groups and individuals there will be instrumental reasons for adhering
to the ideal of public reason in public debate about ethics and culture.
Persuading as many of one's fellow citizens as possible may require adhering to
an ideal of public reason. But this instrumental reason is not one of political
morality. It does not violate the requirement of civility to
[*738] offer one's deepest convictions about ethics or culture in public debate, even
though reasons expressing such convictions may not be viewed as reasonable by
many groups or individuals.
Call the third context
"public discussion about the coercive use of state power." The case for formulating an ideal of public reason to cover this context is
stronger still. Reason used in the third context is public in two senses.
First, reason-giving in public discussion about the coercive use of state power
is public in the sense that reasons are given to the public at large. Of
course, in any given public discussion, the whole public is not literally
addressed in the sense that it will read or hear the communication. Newspaper
editorials, speeches to which the public is invited, and so forth are addressed
to the public in the sense that they are intended for any member of the public
who chooses to read or listen. Second, reason-giving in public discussion about
the coercive use of state power is public in the sense that the subject is
public. State power is the power of the public; in a democratic society, the
state acts on behalf of the body of public citizens. Coercive state power also
is directed at the public; when the requirements of the rule of law are
observed, laws and regulations are addressed to the public at large.
As I have defined it, the third context is public discussion about all
coercive uses of state power, but reasonable arguments can be made for a
narrower formulation. For example,
Rawls limits his case for an ideal of public reason to public debate about the
constitutional essentials and basic liberties.
n30 Of course, there is a sense in which the constitutional essentials and basic
liberties lie at the core of public reason; the constitutional order is the
foundation upon which the public political order is built.
But there are good reasons to extend the ideal of public reason to all
coercive uses of state power. First, most citizens encounter the state most
directly and concretely through the coercive exercise of power. In a sense, the
basic structure and constitutional liberties lie behind the scene. If public
reason is to reconcile citizens with the political order, it should do so in
those instances in which citizens are likely to ask for justification. For many
and perhaps most citizens, those instances are likely to be ordinary
applications of coercive power and not the extraordinary cases in which the
basic structure or constitutional liberties are called into question.
Second, citizens who ask for justification when they encounter the coercive
power of the state are making a reasonable demand. We may reply that we can
justify the basic structure and constitutional liberties to them. Suppose they
counter that they believe that their dignity as free and equal citizens is
offended if they are coerced
[*739] without a justification that they see as reasonable. How are we, their fellow
citizens, to argue that their request is unreasonable? Would we not ask for
reasons that we could accept as reasonable, if we were in their place? In sum,
the third context is public discussion about the coercive use of state power.
Although a narrower formulation is reasonable, the better view is the broader
Call the fourth context
"deliberation and discussion by officials acting in their official capacity." It would seem that an ideal of public reason must apply to this context if it
is to count as an ideal of public reason at all. The use of reason by public
officials in their official capacity is public in both senses in which public
discussion about the coercive use of state power is public: Public officials
address the public at large, and their actions in their official capacities are
on behalf of and directed at the public. In addition, when citizens use reason
to discuss public matters, they may do so in their capacity as private
citizens. However, when officials use reason in their official capacity, they
are public persons (they personify the public) in the sense that they occupy
the role of public official. Because this context is public in all three
senses, we might say that an ideal of public reason is essentially concerned
with deliberation and discussion by officials in their official capacity.
B. Distinction Two: Causal Influence Distinguished from Use in Reasoning
The second distinction is between causal influence and use in reasoning. This
distinction goes to the kind of constraint that an ideal of public reason
places on individual action. It might be argued that citizens and officials
should not allow nonpublic reasons, such as their comprehensive moral or
religious views, to have any causal influence on their public actions. For
example, a legislator may not cast a vote for or against a bill if she suspects
that her vote would be caused by her religious views. This way of formulating
an ideal of public reason seems implausible. Of course, one might ask citizens
to engage in a thought experiment, asking
"Would I take this action even if I did not hold my comprehensive view?" But if one believes that one's nonpublic beliefs have a pervasive influence on
one's action, compliance with a causal formulation of the ideal may simply be
impossible. One can imagine a Catholic saying,
"Any action I take is influenced by my religion, because my identity is
constituted in part by my Catholicism. I have no idea how I would act if this
were not so."
A more plausible formulation of the ideal would focus on the use of nonpublic
reasons in deliberation and discussion. A requirement of public reason can
readily be applied to one's giving of reasons in debate and discussion.
Application to deliberation may be more difficult, but seems possible. One's
conscious deliberations are open to introspection, and one can attempt to
deliberate in ways that limit the role of nonpublic reasons.
C. Distinction Three: Direct versus Foundational Use of Reason
The third distinction is between direct and foundational use of reason. This
distinction addresses the following difficulty. If an ideal of public reason
were to require that reasons be public all the way down, then the ideal would
be far too stringent. Take the following example of a seemingly public reason:
Every citizen deserves respect as a human being. This reason is public in the
sense that it can be derived from our public political culture, and it does not
rely on any particular moral or religious view. On the other hand, it might
turn out that many citizens believe this public reason holds for nonpublic
reasons. For example, some citizens may believe that every citizen deserves
respect as a human being because Scripture reveals that all humans were created
by God in God's image. In this case, the public reason has a nonpublic
Why would an ideal of public reason that excluded beliefs held on the basis of
nonpublic reasons be too stringent? One answer to this question is that such
exclusion might be viewed as unprincipled and unfair. Ruling out the
foundational use of nonpublic reasons would be inconsistent with the Kantian
idea that the only limits of reason should be those imposed by reason itself.
n31 For example, some citizens may believe that they have a moral obligation to
bring their deep moral beliefs to bear in their private deliberations on
questions of political morality. Although these citizens might be willing to
accept an ideal of public reason that excluded the foundational use of
nonpublic reasons as a modus vivendi, as an unprincipled compromise necessary
to avoid the greater evil of public disorder, they could not affirm the
exclusion of public reasons with private foundations on principled grounds.
This objection -- that public reason as mere modus vivendi is unprincipled --
is important, because the justification for an ideal of public reason should be
one that the public at large can affirm as reasonable.
D. Distinction Four: Secular Reasons Distinguished from Public Reasons
The fourth distinction is between two pairs of reason categories. The first
pair of categories, frequently discussed in connection with the role of
religion in politics, includes religious reasons and secular reasons. The
second pair of categories includes public reasons and nonpublic reasons. The
point of the fourth distinction is that these pairs do not map the same
difference between kinds of reasons. Reasons that are religious may be public,
and reasons that are secular may be nonpublic.
For example, the injunction
"Thou shalt not kill" is a public reason, even though it is a quotation from a religious text. This
injunction expresses a belief that the killing of humans is a wrong that can be
derived from our public political culture, of which the text itself is likely a
part. Consider by contrast a secular proposition of the hedonistic variant of
utilitarian moral theory -- that the moral evaluation of an action is
determined solely by the pain or pleasure that will result. This proposition is
not derived from our public political culture, but is instead a controversial
part of a comprehensive moral doctrine. For this reason, this utilitarian
proposition is nonpublic, even though it is formulated in secular terms.
If reasons that are in some sense religious can be public, and reasons that
are secular can be nonpublic, then it follows that the religious/secular reason
distinction does not map directly onto the public/nonpublic reason distinction.
This is not to deny that many religious reasons are nonpublic or that many
public reasons are also secular. In some contexts, subsets of the two reason
categories will map onto each other (roughly, at least); in contemporary
American society, for example, if one focuses on sectarian religious reasons on
the one hand, while focusing on secular public policy debate, on the other
hand, then the religious reasons will almost all be nonpublic and the secular
reasons will almost all be public. The point of this section is to warn against
overgeneralizing from such special contexts.
E. Three Kinds of Principles: Laissez Faire, Inclusionary, and Exclusionary
The fifth and final distinction is between three different principles by which
an ideal of public reason can express the requirement that reason be public.
Call the first expression of the requirement
[*742] principle of laissez faire." This principle interprets the idea of public reason as reason which is free of
constraint. Call the second expression of the requirement
"the principle of exclusion." An exclusionary requirement of public reason is a requirement that the reasons
given or relied upon exclude nonpublic ones. Call the third formulation of the
requirement of public reason
"the principle of inclusion." An inclusionary requirement of public reason is a requirement that the reasons
given or relied upon include public ones. This section begins with the
principle of laissez faire, then explores a variety of inclusionary and
1. The Principle of Laissez Faire
One might argue that the best ideal of public reason would draw upon Kant's
notion that public reason ought to be free, limited only by standards internal
to reason itself.
n32 This might be read as implying that all reasons should be allowed so that the
truth can be revealed in public debate. If the principle of laissez faire were
accepted as the ideal of public reason, then any reason that was sincerely
believed to have argumentative force could be advanced in public argument. For
example, public officials might advance religious reasons for the coercive use
of state power if they believed that these arguments were valid. No reason
would be excluded from public discussion or deliberation on the ground that it
was not public -- in
Rawl's sense that public reasons are those based on common sense, science, or the
public political culture.
Although the principle of laissez faire is a conceptual possibility, it is not
a live option for our political culture. Given the fact of pluralism, we do not
expect the rough and tumble of political argument to reveal the truth about
such deep matters as our duties to God, the nature of good, or the meaning of
life. Even if offered sincerely and with a willingness to engage in
wide-ranging discourse until the dispute over their truth is resolved, reasons
that directly rely on premises concerning these deep matters will be rejected
by many as unreasonable justifications for political action. One can imagine
that if the world were arranged differently, this would not be so. If humans
were immortal and their reason as perfect as that of angels, then even the
deepest questions might be seen as resolvable by conscientious public debate.
But our lives must come to an end, and our reason is not perfect. For us, the
principle of laissez faire cannot serve to express the ideal of public reason.
2. Some Exclusionary Principles
An ideal of public reason could be formulated in terms of a variety of
exclusionary principles. Examination of such principles begins with the most
stringent requirement -- that only reasons accepted by the whole public be
allowed as public reasons.
a. Exclusion of Contested Beliefs
The most stringent formulation of an exclusionary principle would be the
exclusion of all beliefs and modes of reasoning that are not accepted by the
whole public. This principle could be interpreted as literally requiring
universal agreement on all premises and inferences. In this form, the principle
would constrict public reason to the vanishing point, because there is at least
one citizen who will deny the truth of almost every conceivable premise of
political argument. Perhaps there is also a philosopher who will contest the
validity of every mode of reasoning.
Consider then a first step in relaxing the exclusion-of-contestedbeliefs
principle: The principle could be relaxed so a belief is counted as contested
only if it is not contested by any adult citizens in full possession of their
faculties, acting on the basis of a sincere desire to reach the truth. Even
this relaxed version of the exclusion-of-all-contested-belief principle would
leave public reason little room to operate. In a sense, public reason is most
important when there is disagreement. When everyone accepts the premises and
inferences that justify a policy, then public justification is least urgent. It
is when there is disagreement about government action that reasons need to be
given, but the stringent principle, excluding all contested beliefs from any
role in public reason, seems to rule out public reason-giving in precisely this
Consider a second relaxation of the principle: A more plausible exclusionary
principle might exclude all reliance on a subset of contested beliefs that
concern morality. This principle would allow the inclusion of contested factual
beliefs and contested rules of inference, but would exclude any moral belief
from public reason if the belief was contested by any adult citizens in full
possession of their faculties, acting on the basis of a sincere desire to reach
the truth. Thus, public reason would include any moral belief that was accepted
by all competent citizens; for example, the idea that the killing of an
innocent is a prima facie wrong might count as such a moral belief.
This exclusionary principle would allow for more robust public
[*744] discourse than the more stringent principle, but it, too, would impose a
severe limitation. It might well be the case that public reasons could be
developed for many policies from uncontested moral premises, but discussion
would stop whenever contested moral beliefs became part of the argument. The
exclusion of all contested moral beliefs would mean that even an argument that
begins with uncontested moral beliefs is disqualified if it builds to
conclusions which themselves are moral beliefs derived from the uncontested
premises, but nonetheless are not accepted by all competent citizens.
Moreover, the kind of moral belief that gains universal acceptance is likely
to be quite weak. For example, even the Pareto principle, that a state is
preferred if it makes at least one person better off and none worse off, would
not meet this requirement. There are many competent citizens who believe that
being made better off is not a good if it results in any inequality.
Consider a third relaxation of the principle -- this time by excluding
contested moral beliefs only if they are not used to directly support the
conclusions of political arguments. This principle would allow the disclosure
of foundational beliefs that are contested, but would disallow their use as
direct support for conclusions of public reason. For example, one might argue
from a theological premise to a respect for human life to the conclusion that
the government should provide adequate food and housing for all citizens. The
contested theological premise serves a foundational role, but direct support
for the proposition of public policy is provided by an uncontested belief --
that human life should be respected. Even when limited in this way, the
principle of excluding contested beliefs does not seem plausible. It limits the
efficacy of public discussion to cases in which disagreement can be resolved on
the basis of arguments that include only uncontested beliefs in roles of direct
support. Given the wide diversity of moral opinion, public debate that was
conducted in conformity with this ideal would likely be shallow and truncated.
b. Exclusion of Religious Beliefs
Another exclusionary principle might prohibit only the use of religious
beliefs, allowing other moral beliefs in public debate. This principle is
related to that of excluding contested beliefs, because in modern democratic
societies, all religious beliefs are contested.
n33 For example, in the United States, Islam, Hinduism, Shinto, and a variety of
other religions coexist with Protestantism, Catholicism, and
[*745] Judaism. Moreover, the beliefs of all religions are disputed by secular
Contrasted with the principle of excluding all contested beliefs, the
principle of excluding religious beliefs seems at least feasible. Assuming that
the principle is relaxed to allow the use of nonreligious reasons (e.g. killing
is morally wrong) that are affirmed on the basis of religious foundations (e.g.
because God has commanded it), this principle would allow for reasonably robust
public discussion. Assuming there were good reasons to adopt it, the principle
could be implemented.
There are, however, severe problems with this principle. First, the exclusion
of religious beliefs from public discourse is unfair to those who are
believers. Construed so as to be least fair to believers, this principle would
exclude only theist beliefs, but allow atheist beliefs as public reasons. On
the one hand, believers could not argue for public aid to religious school on
the ground that religious training would be good for children. On the other
hand, nonbelievers would be free to argue against such aid on the ground that
religious schools promote false and dogmatic belief systems. This would appear
to be an unfair double standard for believers.
Of course, this blatant unfairness might be corrected by reformulating the
standard to exclude all beliefs about religion, including, for example, atheist
beliefs. Taken literally, this formulation would be self-defeating because this
proposed ideal of public reason is a political belief about religion, and hence
would itself be excluded from public discourse. Let us assume that the ideal
could be modified to allow a limited class of public debate about the role of
religion in political life, without appeals to the truth or falsity of
particular religious doctrines. The question of fairness still remains.
Those with religious beliefs will argue that it is unfair to allow
nonbelievers to appeal to secular moral and philosophical doctrines while
requiring believers to refrain from voicing the full range of their moral and
religious beliefs. Why should it be permissible for utilitarians to appeal to
the truth of utilitarian moral theory if it is impermissible for Catholics to
appeal to the truth of Catholic doctrine? A full answer to this question is
beyond the scope of this Article, although other articles in this Symposium do
address that topic. The point that bears emphasis is that both secular and
religious views contain deep and controversial doctrines that are not public in
the sense that they can reasonably be affirmed by the public at large. Atheists
cannot reasonably be asked to affirm the proposition that
[*746] belief in God is an essential component of the good life; believers cannot
reasonably be asked to affirm the proposition that pleasure and pain are the
ultimate sources of value. Given that both religious and secular doctrines
contain such deep and controversial beliefs, a liberal ideal of public reason
ought not to exclude religious beliefs and allow secular beliefs. Some other
criteria must be formulated to give content to an ideal of public reason.
c. Exclusion of Nonpublic Reasons
The final proposal is to formulate an ideal of public reason that excludes
from public debate all reasons that are nonpublic. Without definition, this
principle would be empty. By
"nonpublic," I mean those reasons that are not public reasons as defined by
Rawls. If public reasons are (1) common-sense beliefs, (2) ideas from our public
political culture, and (3) the noncontroversial conclusions of science, then
nonpublic reasons are the rest. This includes deep beliefs about the nature of
the good that form part of various comprehensive religious and moral doctrines.
Another category of nonpublic reason is not captured by the discussion so far.
Statements that deny the freedom and equality of fellow citizens may be
considered nonpublic reasons. Of course, this simple formulation would need to
be spelled out in some detail. For now, the principle might be explicated in
terms of its application to racist speech. For example, a racist might argue
against antidiscrimination laws on the ground that a particular group was not
fully human and hence was not deserving of the equal respect accorded citizens
of other racial groups. This argument would be excluded on the basis of a
principle excluding statements that deny the free and equal status of citizens.
The principle itself might be justified on the ground that such racist remarks
cannot be accepted as reasonable by those of one's fellow citizens who belong
to the denigrated group. Hence, racist statements which deny the free and equal
status of citizens are not addressed to the public at large; they are not
With this important addition in place, let us stipulate that the principle of
excluding nonpublic reasons will not exclude reasons that are public except in
the sense that they may have a nonpublic foundation. The nonpublic foundation
for such public reasons would itself be excluded from public discussion and
from a direct role in deliberation, but public reasons would be admitted to
public political debate irrespective of their foundations. The proposal is that
an ideal of public reason might be given content by a principle excluding any
direct role for nonpublic reason in public debate or discussion. Should we
accept this proposal?
First, it must be conceded that the principle of excluding nonpublic reasons
would be chosen over the principle of laissez faire. Given the fact of
pluralism, that principle does not insure that the reasons offered in public
political debate can reasonably be accepted by the public at large.
Second, the principle of excluding nonpublic reasons would be chosen over the
principle of excluding all contested reasons (or all contested moral reasons).
If all contested reasons were excluded, public political debate would be
severely restricted. Allowing all public reasons (as defined here) would
facilitate a more robust and effective role for public political debate.
Third, the principle of excluding nonpublic reasons would be chosen over the
principle of excluding religious reasons. Whereas that principle could not be
accepted as fair by believers, the principle of excluding nonpublic reasons
could be. Exclusion of all nonpublic reasons puts the deep beliefs of both
theists and atheists on equal footing.
Based on these three comparisons, we have a prima facie reason to accept the
principle of exclusion of nonpublic reasons as the best interpretation of the
ideal of public reason. An important comparison, however, has yet to be made.
The next section introduces the possibility of an inclusionary ideal of public
3. Principles of Inclusion
An ideal of public reason might be specified in yet another way -by principles
n34 A principle of inclusion offers criteria for what must be included in an
argument in order for it to comply with an ideal of public reason. It is
possible to comply with a principle of inclusion, even if nonpublic reasons are
part of an argument. For example, policy A might be justified by public reason
P and nonpublic reason Q. So long as P provided a sufficient justification for
A, the inclusion of Q would not violate an inclusionary principle satisfied by
There are several possible principles of inclusion. The most stringent
principle of inclusion corresponds to the most stringent principle
[*748] of exclusion: An ideal of public reason might require that every public policy
be supported by a sufficient reason that relies on uncontested beliefs. This
possibility does not require extensive consideration. The weaknesses of the
principle of excluding contested belief would apply to a principle that
required a sufficient reason for including only uncontested beliefs. Such
reasons would run out too soon.
Analogously, a principle that required the inclusion of sufficient secular
reasons would suffer from the same defect as a principle excluding religious
reasons. Believers could not accept such a principle as reasonable, and because
our society includes large numbers of believers, an effective ideal of public
reason must be reasonably justifiable to them.
The most promising inclusionary principle, therefore, is one that requires the
inclusion of public reasons. This principle would allow for robust debate but
would not be unfair to those with religious views. Unlike the principle of
excluding nonpublic reasons, the principle of including public reasons would
allow citizens to advance nonpublic reasons in public debate. Of course,
nonpublic reasons would only be allowed if sufficient public reasons were also
given. This implies that nonpublic reasons could only be given in two
circumstances: (1) if the nonpublic reason were the foundation for a public
reason, and (2) if the nonpublic reason were an additional sufficient
justification for a policy that would be given an independent and sufficient
justification by a public reason. Both the exclusive and inclusive versions
will result in the giving of sufficient public reasons, but the inclusive
version will allow a specified role for nonpublic reasons as well.
Would the principle of including public reasons be chosen over the principle
of excluding nonpublic reasons? Like the principle of excluding nonpublic
reasons, the principle of including public reasons would foster civility and
the civic virtue of tolerance. It would do this in two ways. First, by
requiring citizens to give a public reason, the principle of inclusion assures
that no citizen will call for the coercion of another citizen without giving a
reason the other views as reasonable. Second, by requiring citizens to exclude
nonpublic reasons that are not the grounds for public reason, the principle of
inclusion assures that no citizen will call for the coercion of another on the
basis of grounds the other would view as wholly unreasonable. That is, no one
will be coerced on the basis of a reason that cannot be seen as an alternative
deep foundation for a reason that is public and thus can be accepted as
reasonable. The principle of including public reasons is not inconsistent with
the duty of civility -- the duty of citizens to explain how the coercive use of
state power can be supported by public reason.
Of course, it must be conceded that there is at least one prima facie reason
to believe that the principle of excluding nonpublic reasons might do a better
job of respecting the values captured by the duty of civility than would the
principle of including nonpublic reasons. The principle of including public
reasons allows some nonpublic reasons to be given in public constitutional
debate. Even if these nonpublic reasons are limited to a supporting role for
public reasons, allowing them at all risks undermining the value of civility.
After all, the fact that a religious reason is given at all may be offensive to
There are, however, reasons to believe that the principle of including public
reasons might do a better job of fostering civility and tolerance than would
the exclusionary principle. First, it is possible that the giving of nonpublic
reasons (which are not shared) that are the foundations of public reasons
(which are shared) will foster a sense of political solidarity and tolerance.
If I see that you and I agree about fundamental public values, despite our
disagreement about the moral foundations of those values, I may come to see
your fundamental views as reasonable -- despite my unwillingness to accept them
The second reason to prefer the principle of including public reasons is that
the principle of exclusion has as its corollary a duty of limited intolerance.
Adherence to the principle of exclusion implies two duties. The first is a duty
of forbearance: I myself must forbear from giving nonpublic reasons. This
follows from the first role of an ideal of public reason -- as a standard for
self-restraint. The second is a duty of limited intolerance: I must disapprove
when others fail to forbear by violating the principle of exclusion. This
follows from the second role of an ideal of public reason -- its role as a
standard of public criticism. Of course, my disapproval must itself be civil,
expressed in terms that respect the freedom and equality of my fellow citizens
who violate the principle of exclusion. But I must disapprove because, on the
principle of excluding nonpublic reasons, my fellow citizens have acted wrongly
in giving nonpublic reasons. By contrast, the principle of inclusion has as its
corollary a duty of tolerance. Correlative to the permission granted by the
principle of including public reasons, for citizens to advance their own
comprehensive moral or religious doctrines as supporting grounds for public
reasons that bear on the constitutional essentials, is the duty to listen with
[*750] respect and tolerance for these views.
Compliance by citizens with the duty of limited intolerance imposed by the
principle of excluding nonpublic reasons may well undermine their development
of the civic virtue of tolerance. By contrast, compliance with the duty of
tolerance imposed by the principle of including public reasons would naturally
seem to foster the civic virtue of tolerance. Thus, comparing the two
interpretations of the ideal of public reason, the principle of including
public reasons would seem to do a better job of fostering the civic virtue of
tolerance and thus indirectly supporting the value of civility. Because this
virtue is a very great political good, there is a strong reason (all else being
equal) to prefer the principle of including public reasons.
The third reason for preferring the principle of including public reasons is
that giving the nonpublic reason expresses the ideal of full respect for the
autonomy of fellow citizens. The third argument begins with the premise that
there is an ideal of full respect for fellow citizens as free and equal. Call
"the ideal of full respect." This ideal expresses the notion that one ought to treat one's fellow citizens
as possessing an equal human reason that grounds their capacity to exercise
their freedom. Treating one's fellows as reasonable in this sense requires that
one give them reasons when acting in a way that affects them; one such action
might be voting on the coercive use of state power. The full requirements of
this ideal include: (1) that I give fellow citizens reasons which they could
accept as reasonable (i.e., I give them public reasons), (2) that I do not give
them reasons that they could not accept as reasonable (i.e., I give them only
public reasons), and (3) that I disclose to them all of the reasons that are
the basis for my position (i.e., I make a full disclosure).
But given the fact of pluralism, we cannot attain completely the ideal of full
respect. The fact of pluralism creates tension between refraining from the
giving of nonpublic reasons and giving all the reasons upon which I am actually
relying. Given the fact of pluralism, citizens will frequently, even usually,
have nonpublic reasons as foundations for the public reasons that support their
views with respect to constitutional essentials. The question then becomes,
given that the ideal of full respect can be only partially realized, which
aspect of the ideal should give way?
It seems that it is the ideal of refraining from the giving of nonpublic
reasons that must give way. Why? The principle of excluding nonpublic reasons
assumes that one's fellow citizens should not even be allowed to listen and
think about the nonpublic reasons, because they might not understand that these
nonpublic reasons play only a supporting role. By contrast, the principle of
including public reasons assumes that citizens have the ability to listen with
tolerance and even learn from others' religious and moral beliefs.
The fourth reason to prefer the inclusion of public reason principle over that
of excluding nonpublic reasons is that we ought to favor authenticity in
political debate. Allowing the disclosure of nonpublic reasons reinforces
authenticity; suppressing nonpublic reasons that really do play a foundational
role detracts from authenticity. There are two supporting grounds for this
fourth reason. First, one cannot regard something as a political virtue when it
amounts to dissembling. But if nonpublic reasons really do play a foundational
role, then their suppression may amount to dissembling -- at least in those
particular political debates where their foundational role becomes relevant to
the debate. In those debates, the ordinary canons of fair argument would
require disclosure. Second, there are reasons to believe that inauthenticity in
political argument can be a very great evil. Given our history, we have good
reason to fear political positions that are advanced on the basis of hidden
The fifth and final reason to prefer the principle of including public reasons
over that of excluding nonpublic ones is that there may be times when allowing
nonpublic reasons is necessary to prevent a great evil. The use of religious
argument by the abolitionists may have been a case of this sort.
n37 Assume that the abolitionists' case for emancipation of the slaves rested in
part on the argument that it was an offense against God to treat as property a
being that he created in his image. Assume further that offering this nonpublic
reason in political debate was an essential precondition for the events that
led to the freeing of the slaves. The nonpublic reason (the argument from the
assumption that God created all humans in his image) served as the ground for a
public reason (the fundamental equality of persons). The abolition of slavery
was a very great good, and I think many Americans share the intuitive sense
that the use of religious argument by the abolitionists was not an offense
against political morality. That the principle of including public reasons fits
this intuitive sense counts in its favor. Moreover, there are other cases of
this sort. The contemporary civil rights movement also uses religious appeals,
as powerfully illustrated by the speeches of Dr. Martin Luther King, Jr.
IV. A RESTATEMENT OF THE LIBERAL IDEAL OF PUBLIC REASON
This final section summarizes the argument by restating the liberal ideal of
public reason in light of the many distinctions, qualifications, and arguments
that have been explored so far.
First, the principle of laissez faire for private discussion should govern (1)
private discussion, whether of political or private matters and (2) public
discussion of moral and cultural matters. Two considerations are central here.
Initially, there is no need for a more restrictive principle governing private
discussions or public discussions that do not concern politics in a direct way.
Civility and tolerance can flourish without extending the political ideal of
public reason to discussions in families and communities of voluntary
association such as churches. Public debate over ethics and politics may
undermine civility and tolerance, but the risk is far less grave than in the
case of public political debate over the coercive use of state power. In
addition, the freedom of thought and expression would be gravely infringed if
nonpublic reasons were viewed by citizens as not legitimately voiced and
debated in the private sphere. Although the threat would be less grave if
public discussion of ethics and politics were proscribed by an ideal of public
reason, the loss would still be great. The discussion of art, literature,
morality, and the like would be far less robust if citizens observed an ideal
of restraint that removed deep and controversial questions about the good and
the meaning of life from such discussions.
Second, public debate by private citizens should be governed by two
principles. The first of these is the inclusion of public reasons in public
discussion and private deliberation concerning the coercive use of state power.
The case for the principle of including public reasons already has been stated
at length, but the core of the argument is simple. Public reasons should be
included because only public reasons can be viewed as reasonable by the public
at large. The giving of reasons to one's fellow citizens is required by the
notion that one should respect them as free and equal. An ideal which requires
that public reasons be given but allows nonpublic reasons to be given as well
will do the best job of fostering the virtues of civility and tolerance, as
compared to the principle of laissez-faire or a principle of exclusion.
The second principle governing public debate is the exclusion of intolerance
and disrespect for the freedom and equality of fellow citizens in public
discussion. The ideal of public reason supports the exclusion of racist,
sexist, and homophobic speech from public debate over the use of coercive state
power. Allowing the inclusion of this sort of speech would not foster civility
and tolerance; rather, it would undermine those values.
Finally, the behavior of public officials in their official capacity should be
governed by the principle of excluding nonpublic reasons. Public officials are
different from private citizens because they personify the state; the
statements of public officials in their official capacity are, in a real sense,
the statements of the state and hence of the public at large. For this reason,
it would be unfair to allow public officials to express their own deep
convictions about the good as the official reasons for state action. Allowing
public officials to advance nonpublic reasons would violate the requirement of
treating all citizens fairly. Moreover, this requirement does not violate the
freedom of conscience or expression of public officials. Public office is
entered voluntarily, and public officials retain their full freedoms when they
speak in their capacity as private citizens.
Together, these principles constitute a liberal ideal of public reason. Such
an ideal is not aimed at limiting the common human capacity for reason. Public
reason does limit the expression of some reasons in some contexts, but not for
arbitrary or unprincipled reasons. Public reason does not require that we
refrain from reflection about the matters of deepest significance; it does
focus our reason on the pluralism that characterizes modernity. In the sphere
of public political debate, an ideal of public reason must be justified in
accordance with public reason. Because of this constraint, the justification of
public reason by
political liberalism is shallow in the sense that it can only draw on common sense and our public
political culture. But even those resources are sufficient for public reason to
make the case to each citizen that he or she should find the roots of the
political ideal of public reason in his or her own deepest convictions. In this
way, public reason transcends itself.
APPENDIX: HISTORICAL FORMULATIONS OF PUBLIC REASON
This Appendix presents a brief survey of the historical uses of the phrase
"public reason"; this survey is not intended to provide an intellectual history. Rather, this
recounting of the use of
"public reason" in the writings of Hobbes, Rousseau, Jefferson, and Kant is intended to
illustrate the variety of uses to which the phrase can be put. Some common
themes emerge, but we should not assume that all uses of the phrase refer to
the same concept. We begin with the earliest use of the phrase to be discussed,
that by Thomas Hobbes.
"public reason" is found in Thomas Hobbes' Leviathan.
n40 The section of Leviathan in which this passage appears addresses the question,
whose reason should govern the question of whether a purported miracle has
For in these times, I do not know one man, that ever saw any such wondrous
work, done by the charm, or at the word, or prayer of a man, that a man endued
but with a mediocrity of reason, would think supernaturall: and the question is
no more, whether what we see done, be a Miracle; whether the Miracle we hear,
or read of, were a reall work, and not the act of a tongue, or pen; but in
plain terms, whether the report be true, or a lye. In which question we are not
every one, to make our own private Reason, or Conscience, but the Publique
Reason, that is, the reason of God's Supreme Lieutenant, Judge; and indeed we
have made him Judge already, if wee have given him a Soveraign power, to doe
all that is necessary for our peace and defence. A private man has alwaies the
liberty, (because thought is free,) to beleeve, or not beleeve in his heart,
those acts that have been given out for miracles, according as he shall see,
what benefit can accrew by mens belief, to those that pretend, or countenance
them, and thereby conjecture whether they be Miracles, or Lies. But when it
comes to confession of that faith, the Private Reason must submit to the
Publique; that is to say, to God's Lieutenant.
In this passage, Hobbes uses the phrase
"public reason" to refer to the reason or judgment of the sovereign. Why should the reason of
the sovereign be dispositive of the question of whether a miracle has taken
place? An adequate answer to this question is beyond the scope of this Article,
n42 but three points may help to illuminate his meaning. First, Hobbes' discussion
of miracles is part of his attempt to solve the problem of instability
generated by religious disagreement. Second, Hobbes believes that private
judgment about matters of religion contributes to instability for two reasons:
(a) individuals exercising their own judgment about their duty to God are
[*755] come to widely divergent conclusions and (b) individuals may believe they have
a transcendent interest in fulfilling that duty, even though it might cause
social instability. Third, for a variety of reasons, Hobbes believes that each
individual in a state with an effective sovereign has good reason to accept the
sovereign's judgment about some religious matters. In part, Hobbes' argument on
this point relies on the argument that Christians have good religious reasons
to accept their sovereign as God's lieutenant on Earth. For these religious
matters, the sovereign's reason is thus the reason of the public at large,
because it is the reason that should govern the public's actions. We might say
the Hobbesian view of public reason is that the reason of the sovereign is the
reason of the public on matters in which there is a good reason to obtain
universal public agreement.
A second use of the phrase
"public reason" is found in Rousseau's Discourse on Political Economy:
In effect, though nature's voice is the best advice a good father could listen
to in the fulfillment of his duty, for the magistrate it is merely a false
guide which works constantly to divert him from his duties and which sooner or
later leads to his downfall or to that of the state, unless he is restrained by
the most sublime virtue. The only precaution necessary to the father of a
family is that he protect himself from depravity and prevent his natural
inclinations from becoming corrupt, whereas it is these very inclinations that
corrupt the magistrate. To act properly, the former need only consult his
heart; the latter becomes a traitor as soon as he listens to his. Even his own
reason ought to be suspect to him, and the only rule he should follow is the
public reason, which is the law. Thus nature has made a multitude of good
fathers of families, but it is doubtful that, since the beginning of the world,
human wisdom has ever produced ten men capable of governing their peers.
Rousseau's use of the phrase
"public reason" is quite different than Hobbes'. Public reason is contrasted to the reason of
[*756] individuals. The latter sort of reason is self-interested; the former sort is
concerned with the common good. This suggests a connection between Rousseau's
idea of public reason and his notion of the general will. The general will
(like public reason) is concerned with the good of all; whereas, the individual
will (like private reason) is concerned with the good of the individual.
Another early use of the phrase
"public reason" is found in Thomas Jefferson's Second Inaugural Address:
It is proper that you should understand what I deem the essential principles
of our government, and consequently those which ought to shape its
administration . . . . $ (They include$ ) the diffusion of information and the
arraignment of all abuses at the bar of public reasons.
Jefferson's notion of public reason seems connected to an ideal of democratic
government. Information should be widely diffused so that government actions
may be judged at the bar of public reason -- which in this case seems to be the
collective reason of the citizens of a democratic society. In this view, the
quality or efficacy of public reason is connected to the freedom of speech and
In What is Enlightenment,
n46 Kant introduces the idea of public reason as an answer to a question that
might be phrased,
"What restrictions on freedom of public discourse will facilitate public
enlightenment?" Kant replies:
The public use of man's reason must always be free, and it alone can bring
about enlightenment among men; the private use of reason may quite often be
very narrowly restricted, however, without undue hinderance to the progress of
enlightenment. But by the public use of one's own reason I mean that use anyone
may make of it as a man of learning addressing the entire reading public. What
I term the private use of reason is that which a person may make of it in a
particular civil post or office with which he is entrusted.
As Kant uses the phrase,
"public reason" is defined in terms of the audience to which reasons are given. Public reason
is addressed to
[*757] the entire public.
n48 Public reason should be free if the public is to become enlightened -- that
is, if citizens are to rely on their own reason without the guidance of
n49 Notice Kant's use of the phrase is, in a sense, diametrically opposed to
Hobbes'. For Hobbes, public reason is reason bound by the judgment of the
sovereign; for Kant, public reason is precisely that reason which is free from
In order to understand Kant's idea of public reason, we begin with his
investigation of its opposite -- what he calls
"private reason." Kant's writing suggests two different formulations of private reason, taken as
that from which public reason differs. The first formulation is suggested by
the passage stating that private reason is the use of reason
"in a particular civil post or office."
n50 This passage suggests that private reason is defined by the role of the
speaker. Private reason is the reason of a public official -- again a contrast
with Hobbes. The second formulation is suggested by the definition of public
reason in terms of audience: private reason would be reason directed at a
private audience. This formulation is supported by one of Kant's examples. Kant
argues that a member of the clergy addressing his congregation uses private
reason because he does not address the public at large. In the capacity of
priest to a particular congregation, his reason is not free, but is restricted
by his commission.
n51 These two formulations do not seem to be equivalent. An official, whose reason
is limited by authority, could address the public at large. A citizen, whose
reason is not so limited, could address a particular audience.
Onora O'Neill suggests a reconciliation between the two formulations.
n52 She observes that the reason of an official is restricted by authority and not
solely by the force of the better reason itself.
[*758] Even if addressed to the public at large, such reasons may fail to communicate
successfully because the audience may reject the authority that limits the
reason. Thus, reason-giving by officials may not be public, even though
addressed to a public audience.
n54 Analogously, reasons addressed immediately to a particular audience can be
said to be public if they are the sort of reasons that can be addressed to the
public at large. Those reasons are not limited by authority, but are limited
only by the internal bounds of reason itself.
n55 The key to the Kantian idea of public reason is that the only limit on free
public reason is internal to reason itself.
Of course, these passages from Hobbes, Rousseau, Jefferson, and Kant do not
exhaust the meaning of the phrase
"public reason." For example,
"public reason" is sometimes used to refer to reasons that are of public as opposed to private
interest. This use occurs in The Federalist
n56 and in judicial opinions.
n57 In this sense, a public reason
[*759] is a reason that invokes a public as opposed to private good. However many
"public reason" further investigation might reveal, this survey is sufficient to establish
that the phrase can be used to express a variety of different (and indeed
E. The Rawlsian Idea of Public Reason in Historical Context
This Appendix concludes with a comparison of
Rawls' formulation of the ideal of public reason with the historical formulations
that have been briefly explored.
Rawls' exposition is far richer and more detailed than the summary in the body of
this Article reveals, but even this brief summation is sufficient to allow a
comparison of his use of the phrase
"public reason" with those advanced by Hobbes, Rousseau, Kant, and Jefferson. The primary
focus will be on the relationship between
Rawls and Kant, both because
Rawls' formulation of the ideal is derived in part from that of Kant and because the
exploration of this relationship serves to illuminate the Rawlsian view.
Again, begin with Hobbes. There is a sharp contrast between
Rawls' idea of public reason and that of Hobbes.
n58 For Hobbes, public reason is the reason of one person -- the absolute monarch
who is the sovereign. For
Rawls, public reason is the reason of the public at large. Much closer to
Rawls' idea of public reason is that of Rousseau.
Rawls and Rousseau see public reason as connected to the distinct reason of the law.
Rawls views the Supreme Court as the exemplar of the public reason
n60 and Rousseau holds that magistrates should use public reason, as opposed to
the reason provided by their own natural inclination. However, Rousseau's
belief that there is a clearly demarcated divide between public reason and
[*760] is not a feature of
Although we have only scant evidence from which to reconstruct Jefferson's
notion of the bar of public reason, there does seem to be common ground between
Rawls and Jefferson. Public reason as the judge of official abuse,
"the bar of public reason," expresses the idea that public reason is the reason of the public. Jefferson's
connection of public reason to free expression further reinforces this
Rawls, Jefferson would not limit the sphere of public reason to the constitutional
essentials and the basic liberties. If official corruption must face the bar of
public reason, then its jurisdiction must extend beyond the core of liberty and
structure to a wider sphere of public interest.
The final relationship, between the views of public reason held by
Rawls and Kant, is the most difficult to assess. On the one hand,
Rawls acknowledges that he takes the phrase
"public reason" from Kant.
n61 Moreover, there are other important relationships between
Rawls' work on justice and Kant's moral theory.
n62 On the other hand, there seem to be differences. Kant believed that the reason
of certain public officials was not public, because they were constrained by
their institutional roles as occupants of
"a particular civil post or office."
Rawls believes that the reason of the Supreme Court is the exemplar of public
reason, because the court is constrained by its institutional role.
Yet beneath this surface of inconsistency may lie a deeper harmony. The core
of Kant's conception of public reason is the idea that public reason is free --
limited only by those bounds that are internal to reason itself. One
Rawls (I think the wrong one) is that
Rawls' idea of public reason has limits that are external to reason -- that public
reason cannot reach for the deepest truths because of political concerns that
are not grounded by reason itself. Call this
"the external-to-reason interpretation of the limits of public reason."
One might invoke
Rawls' use of the fact of pluralism in support of the external-to-reason
interpretation. There is, he says, a
"plurality of conflicting, and indeed incommensurable, conceptions of the
meaning, value and purpose of human life."
n65 We disagree about the deepest and most important matters -- about the nature
of the good and the meaning of life. Moreover, the fact of pluralism
"is not a
[*761] mere historical condition that will soon pass away; it is . . . a permanent
feature of the public culture of modern democracies."
n66 This fact is rooted in the history of Western Europe, in particular the Wars
of Religion of the sixteenth century and the subsequent religious conflicts in
England and elsewhere. In a sense, the limits imposed by a liberal ideal of
public reason are imposed because of pluralism. Were it not for these deep and
persistent disagreements, if the fact of pluralism did not hold, then public
reason could incorporate the publicly shared conception of the good.
Given the fact of pluralism, one might argue that the limits of public reason
are features of a modus vivendi. The argument continues: We deny ourselves the
use of the deepest truths about the good in public debate because we stand to
gain more from the stability that results than we lose by sacrificing our
ability to argue from our deepest convictions about the most important truths.
If this line of argument were correct, then the external-to-reason
interpretation would hold, and the Rawlsian conception of public reason would
be thoroughly inconsistent with the Kantian idea.
But this line of argument is not correct and that interpretation does not
hold. Rather, the best interpretation of
Rawls' idea of public reason is that the limits that public reason imposes are
internal to reason. Call this interpretation
"the internal-to-reason interpretation of the limits of public reason." The case for this interpretation begins with the following passage:
"Citizens affirm the ideal of public reason, not as a result of political
compromise, as in a modus vivendi, but from within their own reasonable
n67 What does this mean? The limits of public reason are the subject of an
n68 between groups that affirm a variety of conceptions of the good. For example,
the notion that one ought to respect the freedom and equality of one's fellow
citizens might be affirmed by believers on the ground that people are created
as moral equals and are endowed by their Creator with certain freedoms; the
same notion might be affirmed by nonbelievers for secular reasons. Both believe
it is true that one ought to respect the freedom and equality of one's fellows,
although they do so for different reasons.
Thus, the limits of public reasons, which are to be publicly justified by
public reason itself, would be affirmed by the participants in
[*762] an overlapping consensus on the ground that those limits are just, given that
modernity is characterized by the fact of pluralism. The limits of public
reason do not require that the deepest truths about human nature or the good be
set aside when we decide whether those limits should be respected. From this
perspective then, the limits of public reason are internal to reason itself. We
affirm the limits of public reason because those limits are reasonable given
the circumstances in which we find ourselves. This means that the limits of
public reason are historically contingent. But the historical contingency of a
fact is not inconsistent with its truth. That the limits of public reason are
limits for our situation in our time does not mean that they are external to
reason -- not unless one believes that the truths discoverable by reason must
be eternal truths. Beneath the surface,
Rawls and Kant agree in an important way about the nature of public reason.
n1 These issues are explored in the narrow context of judicial use of religious
reasons in Lawrence B. Solum, Faith and Justice,
39 DEPAUL L. REV. 1083 (1990).
n2 See, e.g., KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE 56-76
(1988); Paul Weithman, The Separation of Church and State: Some Questions for
Professor Audi, 20 PHIL.
& PUB. AFF. 52 (1991); Robert Audi, The Separation of Church and State and the
Obligations of Citizenship, 18 PHIL.
& PUB. AFF. 259, 277-86 (1989). The works of Michael Perry, discussed infra in
text accompanying notes 16 - 28, have been particularly influential in the
formation of my own views.
n3 See, e.g., Yvette M. Barksdale, The Presidency and Administrative Value
42 AM. U. L. REV. 273, 312 n. 224 (1993); Richard H. Fallon, Jr., Of Speakable Ethics and Constitutional Law: A Review
56 U. CHI. L. REV. 1523 (1989); Edward B. Foley,
Political Liberalism and Establishment Clause Jurisprudence,
43 CASE W. RES. L. REV. 963, 969 n.14 (1993); Eric Rakowski, Taking and Saving Lives,
93 COLUM. L. REV. 1063, 1135 n. 168 (1993); David A.J. Richards, Book Review,
23 GA. L. REV. 1189 (1989) (reviewing KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY (1987) and KENT
GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988)).
n4 See, e.g., Jean Hampton, Should Political Philosophy Be Done without
Metaphysics, 99 ETHICS 791 (1989); Jeremy Waldron, Theoretical Foundations of
Liberalism, 37 PHIL. Q. 127 (1987).
n5 I have been unable to locate the phrase
"public reason" in A Theory of Justice; it does not appear in the index. See JOHN
RAWLS, A THEORY OF JUSTICE (1971) $ (hereinafter TJ$ ). A very similar idea does
appear, however, in his discussions of
"publicity." See John
Rawls, Kantian Constructivism in Moral Theory: The Dewey Lectures, 77 J. PHIL. 515,
537 (1980) $ (hereinafter Dewey Lectures$ ) ("Citizens in a well-ordered society agree on these beliefs because they can be
supported . . . by publicly shared methods of inquiry . . . familiar from
common sense and including . . . the methods and conclusions of science, when
they are well established and not controversial."); see also TJ 69, at 454. The idea does appear in John
Rawls, Justice as Fairness: Political not Metaphysical, 14 PHIL.
& PUB. AFF. 223 (1985), and in the essays cited below.
Rawls, The Idea of Free Public Reason, Inaugural Abraham Melden Lectures, Department
of Philosophy, University of California at Irvine (Feb. 27 and Mar. 1, 1990).
RAWLS, POLITICAL LIBERALISM (1993).
Rawls, The Domain of the Political and Overlapping Consensus,
64 N.Y.U. L. REV. 233, 244 (1989).
RAWLS, supra note 7, at 212.
n10 Id. at 213.
n11 Id. at 220.
n12 Id. at 224.
n13 Id. at 214; see also id. 5, at 227-30.
Rawls notes that a full account of public reason would need to offer an account of
these subjects and how they differ from the constitutional essentials and
questions of basic justice. Id. at 215.
n16 David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern
America: A Response to Professor Perry,
76 IOWA L. REV. 1067 (1991).
n17 MICHAEL J. PERRY, LOVE AND POWER: THE ROLE OF RELIGION AND MORALITY IN
AMERICAN POLITICS (1991).
n18 See Michael J. Perry, Religious Morality and Political Choice: Further
Thoughts--And Second Thoughts--On Love and Power,
30 SAN DIEGO L. REV. 703, 713 (1993); Michael J. Perry, Toward an Ecumenical Politics,
60 GEO. WASH. L. REV. 599 (1992) $ (hereinafter Perry, Toward an Ecumenical Politics$ ).
n19 Perry does not call his ideal an
"ideal of public reason," but the functions of the two ideals are similar.
n20 PERRY, supra note 17, at 100.
n21 I will not investigate the precise meaning of Perry's
"attitude of pluralism."
n22 Smolin is a Reformed Christian. See Smolin, supra note 16, at 1079
n23 Id. at 1077.
n24 See id. at 1077-78.
n25 Id. at 1079.
n28 Perry, Toward an Ecumenical Politics, supra note 18, at 617.
n29 Of course, an ideal applied this broadly might not properly be called an ideal
"public reason," since it would not in any way be limited to reasoning that was public.
RAWLS, supra note 7, at 227-30.
n31 This idea is discussed below in an Appendix. See infra text accompanying notes
n32 See infra text accompanying notes 52-55.
n33 It might be argued that religious beliefs are more contested than other moral
beliefs, but this seems doubtful. Disagreement about a variety of secular
doctrines seems just as intense and persistent as disagreement about religious
n34 The discussion that follows includes previously unpublished material cited in
RAWLS, supra note 7, at 247 n.36.
n35 Principles of inclusion raise questions about sincerity. Under what conditions
would public reason be viewed as merely pretextual, with the nonpublic reason
constituting the real reason for public action? This question is discussed in
Solum, supra note 1.
n36 This point was first suggested to me by Sharon Lloyd.
Rawls' discussion of this example, see
RAWLS, supra note 7, at 249-51.
n38 See id. at 250 n.39.
n39 Hobbes' use is the earliest that I have been able to locate.
n40 THOMAS HOBBES, LEVIATHAN (R. Tuck ed., 1991).
n41 Id. at pt. 3, ch. 37, 1 13/13, at 306 (emphasis added) (pp. 436-37 in the
Molesworth edition, pp. 477-78 in the Macpherson edition).
n42 For an elegant and illuminating reading of Leviathan, see S. A. LLOYD, IDEALS
AS INTERESTS IN HOBBES'S LEVIATHAN: THE POWER OF MIND OVER MATTER (1992).
n43 JEAN-JACQUES ROUSSEAU, Discourse on Political Economy 1, 1 1/6, in
JEAN-JACQUES ROUSSEAU: THE BASIC POLITICAL WRITINGS 116 (Donald A. Cress
trans., 1987). A similar use is found in the Discourse on Inequality:
What is one to think of an interaction where the reason of each private
individual dictates to him maxims directly contrary to those that public reason
preaches to the body of society, and where each finds his profit in the
misfortune of another? Perhaps there is not a wealthy man whose death is not
secretly hoped for by greedy heirs and often by his own children; not a ship at
sea whose wreck would not be good news to some merchant; not a firm that a
debtor of bad faith would not wish to see burn with all the papers it contains;
not a people that does not rejoice at the disasters of its neighbors.
JEAN-JACQUES ROUSSEAU, DISCOURSE ON THE ORIGIN OF INEQUALITY n.9, 1 2/15, at
89 (Maurice Cranston trans., 1985).
n44 I find
Joshua Cohen's discussion of Rousseau to be most helpful. See
Joshua Cohen, Reflecting on Rousseau: Autonomy and Democracy, 15 PHIL.
& PUB. AFF. 275 (1986).
n45 THOMAS JEFFERSON, First Inaugural Address, Mar. 4, 1801, in THOMAS JEFFERSON:
WRITINGS 494-95 (Merril D. Peterson ed., 1984) (also in THOMAS JEFFERSON, THE
PORTABLE THOMAS JEFFERSON 293-94 (Merrill D. Peterson ed., 1977) and 1
COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS: 1789-1897, at 309,
311 (James D. Richardson compiler, 1969)).
n46 IMMANUEL KANT, An Answer to the Question:
"What is Enlightenment,' in POLITICAL WRITINGS 55 (H. Reiss ed.
& H. B. Nisbet trans., 1990).
n47 Id. (emphasis added).
n48 ONORA O'NEILL, CONSTRUCTIONS OF REASON: EXPLORATIONS OF KANT'S POLITICAL
PHILOSOPHY 32 (1989).
n49 KANT, supra note 46, at 54.
n50 Id. at 55 (emphasis added).
n51 Id. at 56-57. Remember that the office of priest was a quasi-governmental
office in the Prussia of Kant's day.
n52 O'NEILL, supra note 48, at 28-50.
n53 The idea of the force of the better reason is related to Habermas' notion of
the ideal speech situation, in which every participant is given an equal and
unbounded opportunity to argue. See JURGEN HABERMAS, MORAL CONSCIOUSNESS AND
COMMUNICATIVE ACTION (C. Lenhardt
& S. Nicholsen trans., 1990); JURGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF
THE PUBLIC SPHERE: AN INQUIRY INTO A CATEGORY OF BOURGEOIS SOCIETY (T. Burger
trans., 1989); JURGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION (T. McCarthy
& 1987) (two volumes); JURGEN HABERMAS, COMMUNICATION AND THE EVOLUTION OF
SOCIETY (T. McCarthy trans., 1979). For the connection between Habermas' views
and the freedom of expression, see Lawrence B. Solum, Freedom of Communicative
Action: A Theory of the First Amendment Freedom of Speech,
83 NW. U. L. REV. 54 (1988-89); see also Judith Lichtenberg, Foundations and Limits of Freedom of
the Press, 16 PHIL.
& PUB. AFF. 329, 351 n.40 (1987).
The parallel (but not equivalence) between Habermas' notion of discourse in
the ideal speech situation and Kant's conception of reason can be seen in the
first critique. See IMMANUEL KANT, CRITIQUE OF PURE REASON A738-39/B766-67
(Norman K. Smith trans., 1929) ("Reason depends on this freedom for its very existence. For reason has no
dictatorial authority; its verdict is always simply the agreement of free
citizens, of whom each one must be permitted to express, without let or
hinderance, his objections or even his veto.").
n54 O'NEILL, supra note 48, at 34. Kant himself recognizes this. KANT, supra note
46, at 56.
n55 O'NEILL, supra note 48, at 35 ("The only authority internal to communication is, on Kant's view, reason."); see also IMMANUEL KANT, What is Orientation, in Thinking, in POLITICAL
WRITINGS, supra note 46, at 247 ("Freedom of thought also signifies the subjection of reason to no laws other
than those which it imposes on itself.").
n56 Alexander Hamilton, writing in The Federalist:
The evident aim of the plan of the convention is that all the causes of the
specified classes shall, for weighty public reasons, receive their original or
final determination in the courts of the Union. To confine, therefore, the
general expressions giving appellate jurisdiction to the Supreme Court to
appeals from the subordinate federal courts, instead of allowing their
extension to the State courts would be to abridge the latitude of the terms, in
subversion of the intent, contrary to every sound rule of interpretation.
THE FEDERALIST NO. 82, at 494 (Alexander Hamilton) (Clinton Rossiter ed.,
n57 This usage was more common in the Nineteenth and early Twentieth Centuries.
Virginia v. West Virginia, 238 U.S. 202, 205 (1915);
Philadelphia Co. v. Stimson, 223 U.S. 605, 637 (1912);
Hannibal Bridge Co. v. United States, 221 U.S. 194, 207 (1911);
Vilas v. City of Manila, 220 U.S. 345, 356 (1911);
Union Bridge Co. v. United States, 204 U.S. 364, 400 (1907);
United States v. Eaton, 169 U.S. 331, 338 (1898);
Place v. Norwich & New York Transp. Co., 118 U.S. 468, 503 (1886);
Cohens v. Virginia, 19 U.S. 264, 352 (1821) (quoting passage from The Federalist). A similar use has been made by legal
scholars. For example, Thayer, speaking of equal protection, says,
"A class cannot be selected because they have red hair, but . . . only on the
ground of some rational public reason." J. Thayer, Teaching Notes (Feb. 17, 1890), Papers, Box 2, Folder 5 (on file in
Harvard Law School Library) (cited in W. NELSON, THE FOURTEENTH AMENDMENT: FROM
POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 180 (1988)).
n58 There are also similarities. In a special sense,
Rawls agrees with Hobbes that the reason of the sovereign is public reason. In a
democratic society the public constituted as a corporate body of citizens is
the sovereign, and public reason for
Rawls is the reason of the public body of citizens. It is also true that Hobbes'
notion of public reason responds to a sort of pluralism; Hobbes deployed the
notion of public reason to address disagreements generated by the differences
in religious belief. So too,
Rawls' idea of public reason addresses the contemporary condition of pluralism: the
reason of various groups is not shared by the reason of the public at large.
Rawls recognizes the affinity is indicated by his citation to The Social Contract.
RAWLS, supra note 7, at 219-20
& n.6 ("Public reason with its duty of civility gives a view about voting on
fundamental questions in some ways reminiscent of Rousseau's Social Contract.").
n60 Id. 6, at 231.
Rawls, supra note 7, at 213 n.2.
n62 See TJ, supra note 5, 40; Dewey Lectures, supra note 5.
n63 KANT, supra note 46, at 55.
RAWLS, supra note 7, 6, at 231.
Rawls, The Idea of an Overlapping Consensus, 7 OXFORD J. LEGAL STUD. 1, 4 (1987).
RAWLS, supra note 7, at 218.
Rawls, supra note 65; John
Rawls, The Domain of the Political and Overlapping Consensus,
64 N.Y.U. L. REV. 233 (1989).
n69 I have not discussed an important question in the interpretation of Kant's
position: What are the internal constraints of reason? It may turn out that
Rawls and Kant disagree on the question.
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Philosophy 111A Page