A common theme in Jason’s blog posts on public reason (in response to some of my own) is that public reason liberals aren’t alone in trying to do a kind of second-order moral theory – resolving conflicts between people with substantive and conflicting moral views. As Chris Freiman puts it, “One need not be a public reason liberal to care about resolving conflicts in mutually acceptable ways.”
I. PRLs Develop Criteria for Second-Order Moral Theories
Public reason liberals have understood this point for a while. Indeed, in Justice as Fairness, Rawls is arguing against second-order utilitarianism, not first-order utilitarianism (which he says is part of moral philosophy rather than “moral theory”). Restricted utilitarianism in particular (average utility with a floor, constrained by first principle liberties) is a serious alternative to Rawls’s view, on Rawls’s own accounting. And my view is that Restricted Utility is obviously superior to Rawls’s justice as fairness. And indeed, based on Rawls’s criterion in Political Liberalism. I’m pretty sure that it is a reasonable view.
The key, as Chris notes, is that in second-order moral theory, we are trying to satisfy a mutual acceptability requirement (which I call a public justification). What I’d add is that there are criteria that a successful second-order moral theory must meet. PRLs appeal to a host of considerations to try an argue that their second-order approach has the right structure, such as stability and civic friendship. The way this usually goes is to inquire into human moral or political psychology in order to figure out what sort of principles or rules can be mutually acceptable in a sustained way. Then a mutual acceptability requirement is grounded in an account of our psychology. There are three big theories on offer: for Rawls, we look into our conception of the person, citizen, and society; for Habermas, we look into the norms of dialogue and communication, and for Gaus, we look into our practice of moral responsibility and the moral emotions.
The point is that public reason liberals have a method or several methods for how to do second-order moral theory, and they think that, say, fascist principles can’t meet the relevant criteria.
In my view, the problem with Rawls is that he doesn’t do hard empirical work of figuring out what kinds of norms and principles would satisfy our real moral psychologies. He speculates. Habermas is better because he appeals to sociology and communication theory for help, as well as some interesting moral psychology. But Gaus is the best because he takes the social science the most seriously. Indeed, after rereading The Order of Public Reason again in prep for a grad seminar, I think Gaus is just head and shoulders above the other two in this regard. (Yes, yes, Gaus was my advisor, but still.)
II. My Meager Trust-Based Contribution
I am small fry public reason guy. But in two of my books (Must Politics Be War? and the forthcoming sequel Trust in a Polarized Age) I have arguments that a particular kind of public justification requirement is essential to get people with diverse perspectives to be trustworthy in each other’s eyes. Only when we have mutually acceptable norms can we all have reason from our own perspective to follow common rules, which enable us to identify each other’s behavior as trustworthy because we can all follow the same rules from our own diverse convictions. I take justice pluralism (reasonable disagreement about justice) seriously enough that I don’t think any public conception of justice is going to be stable or uncontroversial enough to serve as the public basis for resolving our first-order moral disputes. Instead, I focus on a range of basic rights, like freedom of association, private property, and democracy. If I had to choose from the standard options, restricted utility is the way to go. Indeed, I’d maximize average utility over very long time periods, a bit like Tyler Cowen in Stubborn Attachments.
But I don’t stop with justice pluralism. Instead of hand-waiving about the costs of foregoing public justification, I argue that the costs can actually be approximated by looking at the kinds of value that social and political trust provide, in particular the instrumental value they provide, as documented in the empirical trust literature. If I’m right, this will be among the first attempts to show what foregoing public justification actually costs. And then, in principle, we ought to be able to measure the trust-generating properties of different second-order moral principles for organizing diverse orders where people disagree about first-order moral issues.
III. Succeeding at Second-Order Moral Theory
So, I think now I’m at least directly responding to J in his own eyes. If everyone is doing second-order moral theory, or could if they wanted, they will have to meet certain standards because second-order moral theory like an acceptability requirement to perform the role the theory is supposed to perform. Fascism will be terrible at that. Justice as fairness won’t be very good at it. Restricted utility is attractive. But a fragmented, rights-based approach is probably best.