Robert George, Public Morality, Public Reason

Public Morality, Public Reason
by Robert P. George

Copyright (c) 2006 First Things (November 2006).

A contest of worldviews in our time pits devout Catholics, Protestants, Jews, and other believers against secularist liberals and those who, while remaining within the religious denominations, have adopted essentially secularist liberal ideas about personal and political morality. The contest manifests itself in disputes over abortion, embryo-destructive research, and euthanasia, as well as in issues of sex, marriage, and family life. Underlying these specific conflicts are profound differences about the nature of morality and the proper relation of moral judgment to law and public policy.

I am hardly the first to recognize the existence of this conflict of worldviews. People on both sides have noticed it, commented on it, and proposed ideas about how an essentially democratically constituted polity ought to come to terms with it. The trouble is that the issues dividing the two camps are of such profound moral significance—on either side’s account—that merely procedural solutions are not good enough. Neither side will be happy to agree on decision procedures for resolving the key differences of opinion at the level of public policy where the procedures do not guarantee victory for the substantive policies they favor. This is not a matter of people being irrationally stubborn; rather, it reflects the considered judgment of people on both sides that fundamental and therefore nonnegotiable issues of justice are at stake.

Jurgen Habermas in Europe and the late John Rawls in the United States are perhaps the premier examples of secular thinkers who have taken the measure of the problem and proposed terms of engagement that, they believe, can be affirmed by reasonable people across the spectrum of opinion. Both single out Catholicism as an example of a non-liberal “comprehensive doctrine” that may nevertheless affirm essentially liberal terms of engagement with competing comprehensive doctrines. Indeed, they argue, one needn’t be a secular person, much less a secularist, to endorse their teachings. There is plenty of room, they say, for religious people of various stripes to affirm the secular principles and norms that should govern political life in contemporary pluralistic democratic societies. Indeed, their goal is to identify principles and norms that can reasonably be accepted by believers and unbelievers alike, and affirmed by people irrespective of their convictions about human nature, dignity, and destiny.

From a Catholic vantage point, there is nothing startling or troubling about the quest to identify moral and political principles that can reasonably be affirmed without appeal to theological claims or religious authority. That’s one description, accurate so far as it goes, of the enterprise known as natural law theory. But there is something deeply alien to Catholic thought about separating inquiry into moral and political principles from questions pertaining to human nature, dignity, and destiny. According to the Catholic understanding, moral and political philosophy is, in significant measure, an inquiry into human nature, dignity, and destiny.

Inasmuch as Habermas and Rawls propose theories of political morality that purport to prescind from such basic questions, there appears to be a fundamental incompatibility between their proposals and the Catholic approach to moral and political theory. This is a problem for Habermas and Rawls. Both men offer theories that reasonable people of diverse faiths, including Catholics, are supposed to be able to endorse without compromising their faith.

Moreover, for both Habermas and Rawls it is important that Catholics in particular be able to endorse their theories—in part because Catholicism is the world’s largest religion, and in part because contemporary Catholicism affirms and even promotes liberal democracy as a political ideal. Pope John Paul II repeatedly praised democracy, describing it as the political system most consistent with both man’s nature as a rational creature and the principle of the equality in dignity of all human beings. Since the Second Vatican Council, popes and other Catholic officials have regularly preached the obligation of governments to respect and protect human rights, including the freedom of religion. While the Church does not rule out state-established religions (such as exist in Great Britain and Israel), it does not promote them, even where Catholicism is the dominant faith, and it strictly demands respect for religious liberty, even where established religions exist.

Given these and other “liberal” dimensions of Catholic social and political teaching, it would be particularly awkward for Rawls or Habermas if Catholics could not, in good conscience, affirm their political theories. Indeed, the inability of these theories to accommodate Catholics, if proven, would invite the suspicion that there is something distinctly sectarian about them. It would suggest that the theories are not merely secular but fully secularist.

In his influential 1971 book A Theory of Justice, Rawls defended what he called “justice as fairness,” in which basic principles for a well-ordered society are identified as those that would be chosen by free and equal persons in what he called “the original position.” Parties in “the original position” select principles in a state of ignorance regarding their personal moral and religious convictions, social and economic status, and related factors that will distinguish them from many of their fellow citizens when they emerge from behind “the veil of ignorance” to live in a society governed in accordance with the principles they had selected.

In 1993, Rawls published a new book, Political Liberalism, which amends certain features of the theory he had advanced in 1971. Most important, Rawls conceded that the argument for “justice as fairness” in A Theory of Justice relied on a premise that was inconsistent with the theory itself: the belief that “in the well-ordered society of justice as fairness, citizens hold the same comprehensive doctrine, and this includes aspects of Kant’s comprehensive liberalism, to which the principles of justice as fairness might belong.”

By a “comprehensive doctrine,” Rawls means something like a worldview—an integrated set of moral beliefs and commitments reflecting a still more fundamental understanding of human nature, dignity, and destiny. Rawls’ problem with the position he had adopted in A Theory of Justice is that liberalism (considered a “comprehensive,” as opposed to a merely “political,” doctrine) is not held by citizens generally in contemporary pluralistic societies. Liberalism considered as such—plainly a secularist view—competes in such societies with Catholicism, as well as with various forms of Protestantism and Judaism, and with other religious and secular comprehensive doctrines. Indeed, liberalism considered as a comprehensive doctrine is plainly a minority view in the United States. Most Americans reject secularism of any type, including secularist liberalism. In any event, Rawls’ revised understanding is that a plurality of comprehensive views, religious and secularist, is natural and unavoidable in the circumstances of political freedom that characterize constitutional democratic regimes. Political theorizing that accepts the legitimacy of such regimes must begin, therefore, by acknowledging what Rawls calls “the fact of reasonable pluralism.”

To appeal to comprehensive liberalism, Rawls concedes, would be no less sectarian than to appeal to Catholicism or Judaism. Some alternative must, therefore, be found or the social stability of such regimes would be in constant jeopardy. Everything would depend on the capacity and willingness of people with fundamentally different moral views—including radically different conceptions of justice and human rights—to reach and preserve a modus vivendi.

The alternative Rawls proposes is “political liberalism.” Its ideal is that “citizens are to conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal also might reasonably be expected to endorse.”

The core of this political liberalism is the idea that, whenever constitutional essentials and matters of basic justice are at stake, political actors must refrain from acting on the basis of principles drawn from their comprehensive views except to the extent that “public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support.” Thus, citizens are constrained from appealing to and acting on beliefs drawn from their most fundamental moral understandings and commitments precisely at the most fundamental political level.

Rawls’ political liberalism aspires, then, to be impartial with respect to the viewpoints represented by the various reasonable comprehensive doctrines that compete for the allegiance of citizens. It “does not attack or criticize any reasonable [comprehensive] view,” Rawls claims. “Rather than confronting religious and nonliberal doctrines with a comprehensive liberal philosophical doctrine, the thought is to formulate a liberal political conception that those nonliberal doctrines might be able to endorse.”

Rawls maintains that terms of cooperation offered by citizens to their fellow citizens are fair only insofar as citizens offering them “reasonably think that those citizens to whom such terms are offered might also reasonably accept them.” This “criterion of reciprocity” is the core of what Rawls labels “the liberal principle of legitimacy”—the notion that “our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may be expected to endorse in the light of principles and ideals acceptable to their common human reason.” When, and only when, political power is exercised in accordance with such a constitution do political actors—including voters—maintain fidelity to the ideal of “public reason.”

The “liberal principle of legitimacy” and ideal of “public reason” exclude as illegitimate any appeal to principles and propositions drawn from comprehensive doctrines. At first glance, the scope of “public reason” seems to be wide. It would, to be sure, rule out as illegitimate any claim based on the allegedly “secret knowledge” of a gnostic elite or the putative truths revealed only to a select few and not accessible to reasonable persons as such. But it would not exclude any principle or proposition, however controversial, that is put forward for acceptance on the basis of rational argumentation.

Now, Rawls himself cannot accept this wide conception of public reason. His goal, after all, is to limit the range of morally acceptable doctrines of political morality in circumstances of moral pluralism to the single doctrine of “political liberalism.” The wide conception of public reason will not rule out propositions drawn from comprehensive forms of liberalism. More important, it will not exclude propositions drawn from non-liberal comprehensive doctrines that content themselves with appeals to “our common human reason.”

Notable among such doctrines is the broad tradition of natural law thinking about morality, justice, and human rights. This tradition poses an especially interesting problem for Rawls’ theory of public reason because of its integration into Catholic teaching. So it is, at once, a non-liberal comprehensive philosophical doctrine and part of a larger religious tradition that, in effect, proposes its own principle of public reason.

If Rawls is to defend a conception of “public reason” narrow enough to exclude appeals to natural law, he must show that there is something unfair about such appeals. And he must demonstrate this unfairness without appeal to comprehensive liberalism or any other comprehensive conception of justice that competes with the natural law conception. In other words, he must avoid smuggling in principles that are themselves in dispute among adherents to reasonable comprehensive doctrines.

This, it seems to me, he has not done and, I believe, cannot do. Rawls does not explicitly address the claims of natural law theorists. He seems, however, to have their beliefs in mind in his critique of what he calls “rationalist believers who contend that [their] beliefs are open to and can be fully established by reason.” Rawls’ argument rests entirely on the claim that these “rationalist believers” unreasonably deny “the fact of reasonable pluralism.”

But do they? Rawls’ own methodological commitments mean that he cannot rule out the views of natural law theorists or rationalist believers on such issues as homosexuality, abortion, euthanasia, and drugs on the grounds that their views are unsound, unreasonable, or false—or else his political liberalism would have collapsed again into a comprehensive liberalism. He thus limits himself to a simple denial that the claims of the rationalist believers “can be publicly and fully established by reason.”

But how can this denial be sustained independently of some engagement with the specific arguments they advance—arguments that Rawls’ idea of public reason is meant to exclude without an appeal to their soundness and reasonableness or the truth or falsity of the principles and propositions in support of which they are offered? It will not do for Rawls to claim that he is not denying the truth of rationalist believers’ claims but merely their assertion that these claims can be publicly and fully established by reason. What makes rationalist believers “rationalist” is precisely the belief that their principles can be justified by rational argument and their willingness to provide just such rational argumentation.

Catholics and other natural law theorists maintain that on certain issues, including certain fundamental moral and political issues, there are uniquely correct answers. The question whether there is a human right against being enslaved, for example, or being punished for one’s religious beliefs admits of a uniquely correct answer that is available in principle to every rational person. Pro-life advocates assert that there is similarly a human right against deliberate feticide and other forms of direct killing of innocent human beings, irrespective of race, ethnicity, and sex, but also irrespective of disability, age, size, location, stage of development, or condition of dependency. Differences over such issues as slavery, religious freedom, abortion, and euthanasia may be “reasonable” in the sense that reasonable persons can err in their judgments and arrive at morally incorrect positions. But, assuming there is a truth of these matters—something Rawls cannot deny and, one would think, has no desire to deny—errors of reason must be responsible for anyone’s failure to arrive at the morally correct positions.

Rawls certainly cannot declare such views unreasonable because they maintain that on certain morally charged and highly disputed political questions—including questions of human rights—there are uniquely morally correct answers. The fact that reasonable people can be found on competing sides of such questions in no way implies that the competing views are equally reasonable. Reasonable people can be wrong, as Rawls himself implicitly acknowledges in his claims against the rationalist believers who are, after all, reasonable people even if their claim that their beliefs can be fully and publicly justified by reason is unreasonable. There is simply no unreasonableness in maintaining that otherwise reasonable people can be less than fully reasonable (sometimes culpably, other times not) in their judgments of particular issues.

In fairness to Rawls, we should acknowledge his treatment of the sources of moral disagreement in connection with what he calls “the burdens of judgment.” To preserve the integrity of his political liberalism, however, we must read his account of the sources of disagreement in such a way as to avoid its collapse into relativism. If we do, then Rawls’ idea of “fully reasonable” views—and even “perfectly reasonable” though erroneous views—refers to false beliefs that are formed without subjective fault. I think that this is what people generally have in mind when, though fully persuaded of the truth of a certain view, they allow nevertheless that “reasonable people” can disagree with them. The fact of “reasonable disagreement” in this sense is not a valid warrant for ruling out argument as to the truth of matters in dispute on the ground that reasons adduced in any argument “on the merits” cannot qualify as “public reasons.”

In A Theory of Justice, Rawls identified the basic principles of “justice as fairness” by the method of “political constructivism,” which asked what substantive principles would be chosen by parties in the “original position” behind the “veil of ignorance.” In a key passage of Political Liberalism, he says that the “liberal principle of legitimacy” and the ideal of “public reason” have “the same basis as the substantive principles of justice.” This basis remains insecure. Over more than thirty years, Rawls failed to provide any reason to suppose the injustice of principles of justice not selected under conditions of artificial ignorance by the unnaturally risk-averse parties in the “original position.” Rawlsians seem to suppose that from the proposition that principles that would be selected by such parties under such conditions are just, it follows that other principles—which might well be chosen by reasonable and well-informed persons outside the original position—are unjust. But that does not follow at all.

Central to J?rgen Habermas’ political thought is a distinction between “morality” and “ethics.” As John Finnis has observed, in Habermas’ work, this distinction “has much the same role as Rawls’ untenable distinction between ?comprehensive doctrines’ and ?public reasons.’” The distinction, in Habermas’ case, is part of what he calls an “ethics of discourse” that “adopts the intersubjective approach of pragmatism and conceives of practical discourse as a public practice of shared reciprocal perspective taking: each individual finds himself compelled to adopt the perspective of everyone else in order to test whether a proposed regulation is also acceptable from the perspective of every other person’s understanding of himself and the world.” “Ethics,” on this account, has to do with “how one sees oneself and who one would like to become,” while “morality” has to do with the proper concern for “the interests of all.” Political theory is fundamentally concerned, then, with “morality,” not “ethics.” And fundamental questions of the nature, dignity, and destiny of the human person are putatively excluded from the realm of political theory precisely because they are “ethical,” not “moral.”

According to Habermas, “Ethical questions point in a different direction from moral questions: the regulation of interpersonal conflicts of action resulting from opposed interests is not yet an issue. Whether I would like to be someone who in case of acute need would be willing to defraud an anonymous insurance company just this one time is not a moral question, for it concerns my self-respect and possibly the respect that others show me, but not equal respect for all, and hence not the symmetrical respect that everyone should accord the integrity of all other persons.”

Finnis has put his finger on the problem here: “The compatibility of self-respect with this dealing with the insurance company cannot . . . be rationally assessed without making ?moral’ judgments about the conditions on which property rights are justly respected and justly overridden, and about the injustice of fraud, and so forth.” But if that is true, the distinction itself begins to collapse.

Worse still, Habermas employs the distinction in a way that implicitly answers the question much disputed in our culture of who is to count as within the “all” whose interests must be taken into account in making moral judgments, while purporting to lay aside the evaluation of certain types of homicide as merely ethical. Writing in a law-review symposium devoted to his work in legal and political theory, Habermas raised the questions of abortion and euthanasia as cases involving “ethical” judgment and not “morality.”

Of course, the claim of pro-life citizens is that a just law will protect the lives of the unborn and the frail or disabled precisely because justice requires respect for the fundamental interests of “all.” No human being may be excluded from the community of the commonly protected on the basis of age, size, stage of development, disability, condition of dependency, or any other of the grounds on which supporters of abortion and euthanasia seek to exclude some human beings in order to justify these practices. The discourse into which pro-life people invite their fellow citizens is precisely a discourse about the reasonableness or unreasonableness of such exclusion. People on the pro-life side offer rational grounds—public reasons—for protecting the unborn and the disabled from being killed. They offer to show that the exclusion of the unborn and the disabled from the protections of the law is arbitrary and, as such, unjust.

Habermas, however, expressly speaking of Catholics, suggests that pro-life citizens are bound to accept legal abortion and euthanasia precisely because these are ethical questions, concerned with what is the best way to live, and not moral questions, concerned with the interests of all. Indeed, he implies that morality requires pro-life citizens to refrain from acting on the basis of their ethical judgments, not because these judgments are in any way unsound, untrue, or unreasonable, but because they are ethical. The abstention is required, in other words, by a due regard for “the interests of all.”

Yet, on what ground are the interests of the unborn or the severely disabled to be excluded from consideration? If the question of who is to count as within the all whose interests must be taken into consideration is an ethical one, then it is clear that moral questions depend on ethical judgments—judgments regarding the nature and dignity of the human person—that cannot be avoided or relegated to the domain of the private.

There is in John Rawls’ later work an almost exact parallel to J?rgen Habermas’ error on this point. In Political Liberalism, Rawls raises the issue of abortion in a footnote—the one concrete contemporary political issue Rawls uses to illustrate the application of his doctrine of public reason. He asserts, “as an illustration,” that “any reasonable balancing” of the political values of respect for human life, “the ordered reproduction of political society over time,” and women’s equality would “give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester” and perhaps beyond. For the law to protect the life of the human being in the early stages of development would be to impose, according to Rawls, a “comprehensive doctrine” in defiance of the strictures of political liberalism.

Like Habermas, Rawls offers no argument as to why the developing human being should be excluded from the law’s protection. He does not offer reasons to rebut those scientific and philosophical arguments and fully public reasons offered in defense of the rights of the unborn by pro-life citizens. (In the end, as Rawls himself later acknowledged, he merely expressed an opinion, not an argument. )

Also, like Habermas, he eventually gets around to addressing “Catholics” as such on the issue:

Some may, of course, reject a decision, as Catholics may reject a decision to grant a right to abortion. They may present an argument in public reason for denying it and fail to win a majority. But they need not exercise the right of abortion in their own case. They can recognize the right as belonging to legitimate law and therefore do not resist it with force. To do that would be unreasonable: It would mean their attempting to impose their own comprehensive doctrine, which a majority of their fellow citizens who follow public reason do not accept. Certainly Catholics may, in line with public reason, continue to argue against the right of abortion. That the Church’s nonpublic reason requires its members to follow its doctrine is perfectly consistent with their honoring public reason.

Even if interpreted generously as granting that advocacy of the strict prohibition of abortion can be consistent with public reason, Rawls’ admonition to Catholics here is awkward. Plenty of American Catholics and others, most of whom reject resort to violence to protect the unborn from the injustice of abortion, reasonably refuse to recognize the right to abortion as “belonging to legitimate law.”

Rather, they believe that any law recognizing a right to abortion is so gravely unjust as to be illegitimate in principle. As such, any law of this type should be opposed resolutely by people who understand its grave injustice.

As Finnis observes,

[T]he argument of [pro-life] citizens is that the killings whose legalization Rawls and Habermas defend are a radical basic injustice imposed on people deprived or to be deprived of the protections of citizenship. The responses suggested by the argumentation of Rawls and Habermas would run something like: “You free citizens need not exercise the right to [own slaves] [abort your children] in your own case, so you can and must recognize our law as legitimate as it applies to the rest of us (and as we will enforce it against you if you interfere).” “You people need not do any of this [slave owning] [killing] yourselves, so your integrity is undamaged and so you ought (and will be compelled) to stand aside to allow us, in the exercise of our prior right of coexistence with you, to [coexist’ with our slaves->?http://en.wikipedia.org/wiki/coexist%26%238217%3B_with_our_slaves] [terminate our coexistence with these unborn children/fetuses and with people whose lives are not worth living].”

In fact, advocacy of the right to life against the forces advancing abortion and euthanasia is an example of how the Catholic tradition of thought about justice and political morality honors public reason (though not Rawls’ artificial and unreasonably restricted conception of it) and promotes an “ethics of discourse” (though not Habermas’ artificial and biased version of it). Natural law, as Catholics and those of a similar mind understand it, truly demands that “the interests of all” be taken into account.

This is the implication of the principle that each and every human being is fashioned in the image and likeness of the divine creator and ruler of the universe and, as such, shares a fundamental dignity that others, including those exercising the highest worldly authority, are bound in reason to respect and protect.

Moreover, natural law is nothing other than a doctrine of public reasons that, as Finnis puts it, “would command a universal consensus under ideal conditions of discourse and meanwhile are available to, and could be accepted by, anyone who is willing and able to give them fair and adequate attention.” These reasons, embraced and proclaimed by the Catholic Church, can be, and have been, affirmed by people who know nothing of, or do not accept, Jewish or Christian revelation or the authority of the Church or any other institution. Respect for these reasons as reasons accounts for the honored place of dialectic in the tradition of natural law theory and the emphasis of contemporary natural law theorists on full and fair debate in the forums of democracy on such issues as abortion, euthanasia, embryonic stem-cell research, human cloning, and marriage.

That is why, from the Catholic vantage point, there is something scandalous in the effort of theorists such as Rawls and Habermas to remove such issues from public debate by arbitrarily restricting reasons on one side of the debate over the nature, dignity, and destiny of the human person. There is nothing “liberal,” “democratic,” “reasonable,” “moral,” or “ethical” about that.

Robert P. George is the McCormick Professor of Jurisprudence at Princeton University and a member of the First Things editorial board.