Notes on The Order of Public Reason
Random notes on Gerald Gaus' The Order of Public Reason which I will hopefully synthesize into something more coherent in the future.
Moral authority is a puzzling - perhaps an inherently contradictory - idea. If I am to respect another as a free and equal moral persons, I cannot claim that my private judgment about the demands of morality is authoritative for her; if she is to respect me, she cannot claim that her private judgment is authoritative for me. Yes, as soon as we participate in social morality we claim authority over (qua deference from) other (§1.3). When I make a moral claim on her, I issue an imperative that tells her what to do. How can I coherently claim a moral authority to instruct a moral equal how to act? Relations of authority are relations of superiors to inferiors, yet our supposition is that there is no such inequality. (p. 22)
That would depend on how you define "equality". Gaus doesn't explicitly define his concept of equality anywhere, nor does the index contain an entry for any permutations of "equal". He does, however, refer to his conception as "Kantian-inspired" (p. 14), which provides a starting point. Rawls' A Kantian Conception of Equality has the following to say regarding the equality of persons:
That they are equal is expressed by the supposition that they each have, and view themselves as having, a right to equal respect and consideration in determining the principles by which the basic arrangements of their society are to be regulated.
Given the above it seems like the idea of asserting authority over an equal isn't necessarily self-contradictory. If there are reflexive rights (i.e. rights of the form "I have right X with respect to myself") then one person can exercise authority over another without necessarily violating the notion of "equality". If I tell you not to punch me in the nose (assert a right to bodily autonomy/integrity) you may turn around and tell me the same thing. This doesn't seem to violate the notion of "equal respect" embodied in the Rawls quote above; both individuals have the same set of rights. I suppose that Gaus might object to this construction by saying that we haven't yet agreed on the suite of rights enjoyed by individuals; a reflexive right only exists once both parties have agreed to it.
Once a society of free and equal persons has coordinated on specific moral rules and their interpretation, the point of invoking moral authority is to police this equilibrium selection against "trembling hands" - individuals who make mistakes about what rule is in equilibrium - and those who otherwise fail to act on their best reasons. In these cases the overwhelming social opinion concurs in criticizing deviant behavior. An individual who violates the social equilibrium will not simply be able to check demands on her, for she will meet the same demand form almost all others. In Mill's terms, the deviant will not simply confront the opinion of other individuals but the judgment of "society." This, I shall argue, renders decentralized authority effective in inducing compliance with social morality. (pp. 47 - 48)
This seems to make "deviance" from some norm the dominant criteria in deciding whether some act justifies the assertion of moral authority. Surely there must be more to it than that? Violating an established equilibrium cannot, as a general rule, be sufficient to make an act immoral, can it?
Now there may be such facts, and perhaps there is "normativity" to which these facts give rise, that are recognized by some. But surely that cannot be the whole story of morality, or even I think the really important part. A theory of morality that does not take seriously the way in which morality makes a cooperative social live possible among human beings would miss the role that social morality has in fact played in all human societies, and so its place in what it means to be human. Such a view threatens to transform this indispensable way that humans relate to each other in a cooperative social life into a somewhat unpalatable practice of judging others, charging them, and criticizing their actions, employed by the high-minded (or, the priestly) who refuse to acknowledge that the facts of our social life can possibly have a fundamental impact on their perception of how the world out to be. A moral theory that refuses to take seriously an analysis of how morality is necessary to secure cooperative human life is academic in the most pejorative sense. (p. 176)
Like the previous quote, this seems to put a great deal of emphasis on the enabling aspects of social morality. Gaus' worries about the "somewhat unpalatable practice of judging others, charging them and criticizing their actions" seem to be misplaced at best and concern-trolling at worst, as if these sorts of things only happen when people start worrying about normativity. The evolved mechanisms by which societies successfully cohere, xenophobia and in-group bias being most relevant in my mind, call for a steady stream of often unfounded judgments. And, as he brings up in the prior quote above, social morality's concern with the correction of deviance certainly leads to all manner of charging and criticizing. To me the primary distinction seems to be that those concerned with normativity (Gaus' "high-minded"/"priestly") are more likely to make their judgments explicit and at least pay lip service to the idea of trying to justify them. The judgements of lay morality, on the other hand, are rarely articulated explicitly and even more seldom subjected to any kind of scrutiny or justification. It seems to me that one of the fundamental functions of social morality is to disregard the concerns of, if not actively suppress, those who deviate from the norm, since such deviance is detrimental to the smooth functioning of society. Such activity routinely violates any reasonable definition of "free and equal".
Still, the worry gnaws: have we simply landed in a confused practice that we cannot reason ourselves out of? That may be a recipe for despair rather than contented resignation, much less justification. We not only wish to know where we have landed but to have some reassurance that it is a destination worth arriving at, and not the result of being marooned with no hope of rescue. Our current moral practice is made intelligible and sensible once we understand that human society depends on a social morality based on Rule-following Punishers. For such a system to have arisen, we must care about the moral actions of others, care about making demands on them, and hold that we have standing to make these demands. (p. 193)
Yes, but "[i]ntelligible and sensible" isn't the same thing as "justified". We can agree that social stability is promoted by the presence of Rule-following Punishers etc., but it is also the case that other mechanisms might promote social stability (to the extent we care about such a thing) just as well. That we can explain how we got to where we are doesn't mean that there isn't a superior alternative to accomplish the same objective.
As Nunner-Winkler and Sodian's experiments help show, as moral agents mature they become emotionally invest in moral rules; they come to care for the rules and expect to feel guilt when they violate them. And importantly, as a person morally matures she comes to recognize an internalized "ought" that requires of her that she set aside her goals and conform to the requirements of morality. Having so matured, she comes to see others in a more sophisticated light, as also recognizing this internal ought, and so feeling guilt at their own transgressions. (p. 204)
I'm not sure if I buy this emphasis on guilt. Maybe I'm an exception, but I feel like a lot of moral decisions lack a strong emotional component. Consider, for example, my belief that I shouldn't automatically give up my seat on a bus for the pregnant/elderly/disabled. I don't have a strong emotional attachment to that particular belief; I arrived at it through abstract reasoning1. If I give up my seat without being asked because that's social custom and the driver is giving me the stink-eye I don't know that I'm going to "feel guilty". I might sigh inwardly, or I may be filled with self-loathing that I'm a worthless piece of shit who can't even live up to simple standards, but I don't know that I'm going to feel guilt in the Catholic, "I shouldn't have given up my seat" sense.
Some non-negligible percentage of moral decisions are highly abstract in this manner. I think government should get out of the marriage business (on the grounds that marriage is a religious, not civil, institution), but I don't suffer guilt that I obtained a marriage license rather than a civil union. Maybe it's because these are trivial examples? I'm having a hard time coming up with any "big question" examples, which may be telling. People are very rarely confronted with big moral dilemmas; day-to-day living involves a lot of tiny choices. Some of these may have moral import, but because they're small choices whatever moral import they have is minimized.
I think the most telling point is that feelings of guilt can be self-evidently inconsistent. They may be experienced in situations where it's not warranted; I may feel guilty if I fail to give money to a panhandler even though there's no obligation to do so on my part. Conversely, if I give money to Panhandler A I may feel that action absolves me of any need to give to Panhandlers B and C down the road, even though such a belief doesn't stand up to scrutiny. Now maybe in these instances I'm suffering from some sort of false consciousness; but the reactions I've described are consistent with contemporary social morality as its actually practiced, which seems to carry a lot of weight in Gaus' book. In short, guilt seems like too shaky and inconsistent of a phenomena to explain the behavior of people who have internalized the "ought".
Moral agents, we might reasonably conjecture, are not best understood as simply operating at only one or two (adjacent) stages but are apt to combine simpler and more sophisticated forms of reasoning in different judgments and at different times. To be sure, some achieve more sophisticated reasoning and employ it more often (there would be no point in doing moral philosophy at all if this was not the case), but there is no reason to doubt that normal adults make the crucial step of understanding the relation of belief, desire, and the idea of an internal sense of obligation... But better moral reasoners may be able to extend reasoning in ways that others cannot. For example, it is widely agreed today that a person with a normal concern for her own welfare and values could not be expected to care for a rule that, say, enslaved her, and so such a rule could never generate a justified internal ought for her: it could not be a binding moral rule... A better moral reasoner, though, may point out that the same considerations show that the slave cannot be bound to show that a similarly reasonable person cannot be bound by an oppressive property regime. Such people may serve us all as moral critics and reformers; they do not disqualify the rest of us from being competent moral agents. (p. 217)
What does Gaus mean by "better moral reasoner"? What is his metric for "better"? Based on the passage above it appears to indicate someone who has more facility in identifying the concerns germane to a given situation and the consequences that stem from them. It would seem to follow from there that "better" implies "more correct". There's definitely some tension in the above passage. Gaus clearly wants to democratize moral reasoning, but at the same time he recognizes the existence of expertise in that area. Ultimately he seems to be saying "Y'all reason well enough, but you should really be paying attention to these guys over here".
Compare: I am speaking to her in a language she does not really understand, and she replies "I don't know what you are talking about." In the 1984 case I cannot feel resentment or indignation, nor fully blame her for failing to cultivate a more comprehensive moral understanding, for she has been so controlled that the relevant concepts are not available to her. But even if I could be resentful and indignant at her for that (as I might in some cases be resentful that she has not bothered to learn my language), what IU cannot be resentful or indignant about is her current failure to respond to imperatives that she does not understand as genuinely authoritative over her. Given the way normal reasoners understand the notions of "wrongness" and "permissibility" (§11.3b), my judgments about these matters are apt to be undermined by her perverted beliefs and desires. (p. 219)
That's an interesting passage to read in conjunction with the one from p. 217. What is the distinction between the typical moral reasoner and a reasoner whose moral faculties have been "perverted"? Is there some way to tell the two apart that isn't horribly subjective? I imagine that the "better moral reasoner" from p. 217 might have identical conversations with both. The better moral reasoner might say "φ!" to individuals from either class and receive the same response, namely that they "cannot see how 'φ!' has any internal authority" over them.
Do "perverted beliefs and desires" get people off the hook for everything? Or can we assume some baseline(s) that everyone should conform to? I can think of two candidate rules:
- A belief may not be contradicted by empirical evidence.
- Beliefs must not be self-contradictory/belief systems must not be demonstrably incoherent, subject to Gaus' caveats about the boundedness of reasoning.
Our practice of social morality leads to two parameters on what is an adequate amount of rational deliberation to presuppose, which help identify a minimum and a maximum. The maximum - what sets an upper limit on how difficult it can be to access the reasons which we suppose all participants to have - is that the practice of morality is not an elite practice such as physics or moral philosophy, but a basic human practice in which all adults who have grasped the Principle of Moral Autonomy (§12.3b) are competent. (p. 254)
Eh... sort of, with significant caveats? Gaus is correct in that cannot expect everyone to ponder every moral choice they make with the precision of a moral philosopher. However, moral philosophers have often done a lot of the heavy lifting already, so there is no need for the average individual to reason de novo about a vast swath of typical moral dilemmas. Rather, they need merely avail themselves of what has already been written on the subject, allowing the moral philosophers to take them by the hand, as it were, and lead them through the discussion. The consequence, assuming you buy this argument, is that sophisticated moral reasoning is within the grasp of the average (literate, and of normal intelligence) individual.
This raises two questions:
- Do moral philosophers actually have anything useful to say?
- What level of self-education is reasonable to expect?
To say that we can ascribe such reasons to normal moral agents is to say that, given the public debate and the opinions of experts, normal moral agents have accessible undefeated reasons to affirm them. If there are defeaters, they are too inaccessible - even after all the rational deliberation we could expect from normal moral agents, they would not uncover these defeaters. (p. 255)
Gaus explicitly invokes "the opinions of experts" here, which is where I think this passage diverges from actual practice. The normal moral agent probably isn't exposed to the opinions of experts (moral philosophers) in the real world. Does the normal moral agent have a duty to seek out informed opinions?
Throughout I have stressed the costs of embracing an elitist conception of a basic social practice such as our morality. Social morality is not an esoteric game of philosophers, the revelation a wise elite, a description of a set of correct judgments, or even simply a device we use to criticize others: it is the foundation of social existence, and it requires that its participants grasp, and respond to, what is going on, and what reasons we have to conform to moral demands. (p. 255)
Argh... look buddy, you can't have it both ways. You said that there are "better moral reasoners", which implies that you believe, deep down in the bottom of your egalitarian heart, that some people are doing it wrong in some material and objective fashion. If this is the case, and people are objectively wrong, then we have a right (and maybe even a duty?) to call them on it. Whether or not they can follow along seems more or less irrelevant. If, on the other hand, they aren't objectively wrong then you need to ditch all your verbiage related to "better" moral reasoning since it's just unsubstantiated opinion.
However, our moral practice must also speak to those who have thought about moral matters at these more sophisticated levels (as we saw in section 13.3 the reasons we attribute to participants are provisional and can be overturned by higher levels of deliberation). A social morality that all have reason to grasp must neither presuppose sophisticated reasoning, nor must it ignore it when it occurs. This, I think, is the important upshot of our analysis of what it is to have a reason... Thus an adequate public justification must give sufficient reasons both to those who are attributed only the basic degree of warrant characteristic of the practice and to those who have given, as it were, more than adequate thought to the matter. (p. 257)
So what do we do when the reasoning of the average individual conflicts with the reasoning of "more sophisticated" reasoners? Given the remarks in section 13.3, does the more-sophisticated reasoning trump the less-sophisticated reasoning, even if the less sophisticated reasoners cannot be convinced of this fact? Gaus is assuming, optimistically IMHO, that both sorts of reasoners can be satisfied simultaneously.
L is a bona fide rule of social morality only if each and every Member of the Public endorses L as binding (and so to be internalized). (p. 267)
Seems like there will be very few, perhaps even 0, L's in a society as large as the United States.
Philosophers specialize in judgment and reflecting on hard cases, but social life together requires that the range of judgment be narrowed so that there is a widely shared understanding of what constitutes compliance and noncompliance. (p. 272)
As a pragmatic matter this makes sense, but it may take all the interesting questions out of the domain of social morality. It seems unlikely to me that the "Great Society" (p. 268) would be able to achieve the requisite level of consensus about any but the most trivial of topics.
In constructing the Deliberative Model we start out with a very broad range of moral persons who disagree, and construct Members of the Public as idealized representations. We then see what sorts of moral rules can be justified to them. We then may go back and consider those value systems that stretch intelligibility, which we have not yet modeled. We shall want to inquire whether these persons are committed to the moral enterprise and treating others as free and equal; if the are, we must see whether we can model any remotely intelligible Member of the Public to represent them. If we can see how some such persons might be described, we may iterate our deliberative model to determine whether the results radically change. Do we find that our justified social morality is fundamentally transformed in a way that is manifestly unacceptable (say, it shrinks to a very small core or even disappears)? If we find this, we may conclude that we have reached the limits of reasonable pluralism with a morality and free and equal persons, and must confront the conclusion that, in the end, moral relations with such persons is not possible. To include them would radically, and unacceptably, reduce the scope of social morality. And this, of source, would be a great cost to us. It would impair social morality's ability to perform the core function of structuring our social life. On the other hand, to exclude moral persons is also a terrific cost: our moral relations with such people would be transformed into the relations that obtain between us and those who are not capable of moral autonomy (§12.3b) such as the psychopath. We may treat them as strategic partners, patients to be helped, or dangers to be contained - but not as fellow participants in a moralized social life. The moral emotions and the practice of blame would no longer be appropriately directed at them. Whether we - you and I - bear these costs depends on the intelligibility of those excluded, and the extent to which their inclusion undermines our social morality. (pp. 282 - 283)
This may be the most important passage in the book so far. Gaus is specifically discussing "egoists" and "monomaniacs" (p. 281), but presumably the general ideas hold true for typical Members of the Public (and their real-world counterparts) as well.
First question: What if the typical, real world member of the public isn't committed to treating others as free and equal? There is a non-trivial portion of the American populace that will simply never endorse that notion. More importantly, I think, is that a substantial segment (a plurality? a majority?) thereof is not "committed" to the idea; they may pay it lip service but in their hearts they still treat their own judgments as superior to others'. If we follow Gaus in this regard it seems inevitable to me that large swaths of the population will cease to be regarded as moral agents.
One answer to this dilemma is to hold that this is true for "members of the public" but not for "Members of the Public", their idealized counterparts. However, slightly earlier Gaus says the following:
The Members of the Public, then, are idealized counterparts of actual members of the public, but they are not so idealized that their reasoning is inaccessible to their real-world counterparts. (p. 276)
I maintain that when a member of the public does not believe that all persons are free and equal but their counterpart Member of the Public does this will have the effect of making the reasoning of the latter inaccessible to the former in some instances.
Second question: What if "reasonable pluralism" (p. 277) also leads to a justified social morality that is "very small" or nonexistent? Must we follow the same procedure and kick out the most extreme of the "normal" Members of Public until such time as those remaining are satisfied that the justified morality is sufficiently expansive?
As Baier says, social morality is for everybody. Such weak publicity is absolutely essential for the rules of social morality ot perform their job of coordinating a mutually beneficial social existence. Rules that are too complex to be reliably taught to children could not be followed by the population in general. A social morality composed of abstract principles that required sophisticated philosophical reasoning to be applied simply cannot form the basis of a shared public morality; neither could a social morality that required sophisticated case-by-case moral judgment. Perhaps such moral theories apply to some aspects of moral discourse, but insofar as the cognitive demands far outstrip the abilities of normal moral agents, they cannot provide the framework of our shared social existence. (p. 296)
This seems to be an enterprise which is doomed to failure from the beginning. How do you develop a social morality which can be taught to children while, at the same time, meeting the requirements of sophisticated moral reasoners? The only way that I can see to accomplish that goal is to remove all of the hard questions from the domain of social morality. Even the most basic moral rules may be evaluated differently by children and sophisticated reasoners. "Don't steal", for example, almost certainly qualifies as a social rule of the type that Gaus has in mind, but the common interpretation of that rule, and indeed the whole notion of private property that it entails, may be rejected by the "better moral reasoner" from p. 217 who objects to oppressive property regimes.
Further reflection leads me to think that this requirement might make Gaus' entire edifice self-effacing. Is it necessary for moral agents to understand "all persons are free and equal"? By this I mean really understand, as in "grasp the full import of and act accordingly", rather than simply parrot a phrase. Because that's hard to do... your average child isn't going to live up to that standard.
The socially eligible set, then, consists in all those proposals that are unanimously ranked by all Members of the Public as strictly preferred to blameless liberty - this is, rules that all have reasons to endorse as authoritative. We thus must eliminate as a possible moral rule among "citizens of the realm of ends" any proposed moral rule that is in the ineligible set of any Member of the Public. (p. 322)
I'm having a really, really, really hard time coming up with a scenario that features a non-empty "socially eligible set". Let's go back to p. 311:
Given the plural basis of the parties' deliberation, we cannot preclude that Alf, some other Member of the Public, will advance proposals that Betty finds objectionable in this way. To be sure, given that all are reasoning on the basis of evaluative standards that all accept as relevant to moral deliberation, and further that all Members of the Public hold that their proposals conform to the formal constraints on moral rules, there will not be out-and-out dictatorial, selfish, or manifestly oppressive proposals. Yet their differences in evaluative standards can still lead some to propose moral rules that others find strictly unacceptable. For example, when deliberating about rules concerning freedom of religion, Alf may sincerely propose (w) a rule of freedom of thought and exercise, though with an obligation to support (at least financially) a single national Church, on the grounds that this will promote community spirit and dampen sectarian conflicts. As an adherent of a particular faith, Betty may insist that such a rule is strictly unacceptable.
Gaus has set up a situation where any Member of the Public may veto a particular rule and, given the example with Alf and Betty above, there don't seem to be any limits on that veto power beyond someone's willingness to assert that a particular rule is "strictly unacceptable". Think about trying to achieve consensus on any topic in America; you can find someone willing to reject or endorse any position imaginable. In a country of over 300M people you will not be able to achieve consensus on anything. To his credit Gaus acknowledges this possibility on p. 323 and says that he'll address it shortly.
We cannot exclude the possibility that an interpretation may be strictly unacceptable to some Members of the Public (Betty may certainly have sever doubts about Charlie's Freudian proposal). A proposal might, in the opinion of a Member of the Public, be such a bad interpretation of the abstract right of freedom of speech that it does hardly anything to secure the core interests and concerns of agency that are being interpreted, or else it severely and unnecessarily attacks her own evaluative standards. This certainly should not be a commonplace, since all are devoted to these core interests and all agree that it is of the first importance that the basic claims of agency be secured. To end up with a null set of eligible interpretations would be a moral disaster for the agency of all. And we must remember that the constraints on proposals still apply, including reversibility and the weak common good requirements (§15.2). Members of the Public are thus confronted by a set of socially optimal eligible interpretations of an abstract justified right, just as they were confronted by a socially optimal eligible set of possible rules, x, y, z. We have compelling reasons to think that the set would be neither null nor a singleton.
That's it? That's your argument? "Compelling reasons"? You, who said that "[t]here is no doctrine so bizarre and unappealing that philosophers have not defended it" (p. 342)? Argh!
Now, in Gaus' defense, in the preceding material he makes a pretty good argument that there are some fundamental rights supported by the vast majority of mankind. That's not enough, however, since it only takes a single person to eliminate a proposed rule, especially when the alternative is "blameless liberty". I mean, the mere existence of philosophical anarchists demonstrates that there are people who prefer the state of nature over a wide variety of common institutions. What Gaus is ultimately asserting, when he says that the socially optimal eligible set is non-null, is that there are rules that no one, anywhere in the entire Great Society, will object to. If such creatures do exist they will be trivial and insufficient to form anything resembling a comprehensive social morality. The eligible set may not be null, but I feel like the balance of probabilities is in my favor that there won't be anything interesting in it either.
It cannot be stressed too much that the Members of the Public do not see themselves as bound by the result of the process, as if they had agreed to adopt that member of the optimal eligible set identified by a random procedure, or as if there is an independent justification for employing this iterated procedure. Although a random element begins the process, each acts simply on her own standards and does what she has most reason to do given the free actions of others. (p. 397)
Very clever Mr. Gaus! I'll need to mull this over for awhile, but I'm more inclined than not to agree with him at this point.
This does incline me to think more about the scope of Gaus' proposal. The above makes it clear that he's specifically talking about social convention and private society, given that each individual chooses to follow the dominant convention simply because it seems in their best interest to do so. Or, to express it another way, in the above situation it doesn't seem like we'd be justified in assessing penalties for failure to conform to the dominant convention. It looks like Gaus' is going to talk about legislation later, so I'll merely note that we'll have to worry about public rule-writing at some point.
The "test" a moral claim must pass, he famously argues, "in order to be called true" is acceptability from the moral point of view. This is precisely correct. we confront a current moral rule, x, in our society that is widely observed - it is an actual social rule ("a more") and so is actually followed by a large proportion of society (§10.2) - and we wish to test whether is is acceptable from the perspective of free and equal moral persons, modeled as our Members of the Public. The Deliberative Model explicates the moral point of view, and what is acceptable is any option in the optimal eligible set. (p. 425)
Again, there is no reason to think that the optimal eligible set is non-null. This especially true given that some fraction of the society doesn't follow the rule; presumably they have good reasons not to do so and which may be strong enough to remove any particular rule from the socially eligible set.
In the context of the public justification of a social morality, this defense of neutrality fails to appreciate that an eligible rule that is also the status quo has moral properties that other eligible rules do not. There is a relevant difference to which our moral theory must sensitive. We are not simply "preferring" the status quo; we are choosing an option that has the crucial, additional, moral property of being an equilibrium such that all have reason to act on it, and so, uniquely, I treat you as a free and equal moral person when I demand that you conform to it. (p. 426)
That's an important point, and it's good that he raises it. However, it's a poor reflection of deliberation in the real world. When people complain about the status quo they usually do so because believe that a current rule is not in the eligible set. You specifically don't see people marching on the capitol to demand that we all drive on the left hand side of the road.
The minimal understanding of the authority of the state is a moral permission to employ force or the threat of force against citizens to endorse its laws (see further §23). On this minimal conception of authority, citizens need not have any corresponding moral obligation to obey the law, or even a moral obligation to acquiesce in the coercion. In this sense, the authority of the state is akin to the authority of a part in Hobbes' state of nature who has a "blameless liberty" to coerce (§16.2c) that is not correlated with duties on the part of others. In deliberating about political institutions, Members of the Public have compelling reasons to endorse some such minimal authority, as they would be well aware that there are some persons in any social order who are not moral persons and so are unable to internalize moral rules - only the threat of punishment can provide them with incentive to obey. (p. 463)
Fail. This is self-evidently not true and Gaus has no excuse for saying that it is. Philosophical anarchists may prefer no state at all to the imposition of even a minimal state; how the fuck does Gaus not even have an entry for "anarchism" in his frickin' index? And to make matters worse, some of the people propounding this view are post-conventional moral reasoners, those "stage 6" folks that he's so fond of. The presence of such individuals will remove the minimal state from the eligible set.
In light of Displays VIII-10 to VIII-14, we must view as unfounded the claim that welfare state capitalism, as well as state socialism with a command economy, is unjustifiable partly because it fails to secure the fair value of political liberties... There is good reason to think that in the OECD, the most important variable explaining high political rights scores is simply high wealth and income, and degree of equality is a relatively minor factor. (p. 520)
Yay data! Those tables are awesome! And it's not like Gaus has a libertarian axe to grind either.
The stretch from pp. 535 - 538 is interesting, but I feel like Gaus ultimately dodges the questions. Maybe we could get people to agree on speed limits, but in the grand scheme of things speed limits are a relatively small issue. You get on to topics like the social safety net or military policy and you'll find that you may not be able to find a solution which is within everyones' eligible set. He needs to demonstrate that these "big questions" are amenable to public justification.
A vast amount of public policy is based on a sort of quasiutilitarianism, in which the total social costs and benefits of a policy are calculated, such that if the total social costs are greater than the total social benefits, the policy is justified. [I think he means the other way around here. -GG ] Some individuals are coerced simply to benefit others. To be sure, such aggregately collective action could be genuinely justified if each Member of the Public approved of pursuit of the overall social benefit. But few think this is the case. The pursuit of a great deal of what we call "public" policy simply cannot be endorsed by all Member of the Public. (p. 539)
I'm a little confused at this point, since the quote above seems to run counter to his discussion of helmet laws etc. Perhaps the gestalt is that we should expect agreement on some things, just not very many?
My aim here is not to point to solutions to these important problems but to stress that even when a Member of the Public cannot endorse a public policy, it does not follow that others must do without the policy. As with the European Union, the remaining citizens might reconstitute themselves into a different public (a "core group") on this issue. (p. 542)
However, what happens when different groups ask for different opt outs over a wide range of issues? You're likely to see fragmentation into a bunch of different sub-communities that may share few norms in common. Which I don't think is necessarily a bad thing... it calls to mind Nozick's quote to the effect that "Utopia" is actually "utopias". This fragmentation seems to be at odds with Gaus' vision of the Great Society, which indicates that he needs to be a little more explicit in how he actually sees this playing out in practice.
Libertarians, on the other hand, err by leaping from a well-founded worry about state coercion to a rejection of almost all (or perhaps even all) state authority. Unless the laws have de jure authority, I have argued, they cannot form the ground of a political order among free and equal persons. Without authority, the laws of state cannot perform their core function of articulating and protecting our fundamental moral rights. (p. 546)
Clearly the spontaneous order folks would disagree with this. I don't know enough about the topic to know whether spontaneous order poses a significant challenge to Gaus' generalization.
More generally, Gaus' conception of "fundamental moral rights" is more expansive that that of libertarians, necessitating a larger state, though it's not clear that this expansive view can actually be supported.
Admittedly, an order that pursues practical Paretianism will have a far more limited agenda than our current states. To some this shows the error of my approach; many presuppose that political philosophy must in the end justify the range of activities engaged in by our current liberal-like states. The task of political philosophy, however, is not to legitimate current regimes but to examine the conditions under which political coercion can be justified to all, and all can live in a free social and political order. (p. 546)
It's so nice to hear someone say that.
Regrettably, much moral philosophy succumbs to the authoritarian temptation, taking up the role of ideal legislator; we are told that our society is unjust - that its norms and alws are without bona fide moral authority - unless it is egalitarian, prioritarian, sufficientarian, libertarian, communitarian, or utilitarian, or that we must do that which best promotes human perfection, flourishing, happiness, welfare, or virtue. (p. 549)
I do wonder whether Gaus is engaging in reflexive "libertarian punching" in the quote above. Libertarianism is materially distinguished from all the other -isms on that list by virtue of the fact that it respects individual conscience and autonomy. Ultimately libertarianism boils down to "leave people alone if they want to be left alone"; it's hard to call people who endorse that as a bedrock norm "authoritarian".
This is a materially important point. If the critiques I've leveled at Gaus are at all correct then what you end up with, when you follow his method to its logical conclusion, looks an awful lot like libertarianism. Is he just trying to avoid being tagged as "libertarian" so that people can't/won't dismiss his ideas out of hand?
I went back and looked up "libertarianism" in the index. He mentions the subject a number of times, but the only instance where he notes an actual policy disagreement is on p. 526:
A liberalism based on a commitment to public justification - a justificatory liberalism - leads not to socialism, or a thoroughgoing egalitarian liberalism, or to libertarianism, but to the more nuanced approach to legislation we find in the fifth book of Mill's Principles, allowing that there are a number of tasks that government justifiably performs, but having a strong overall inclination toward less rather than more "authoritative" (i.e., coercive) government.
There are many flavors of libertarians who would agree that "there are a number of tasks that government justifiably performs". Clearly the devil is in the details, but Gaus should recognize that anarchists are not (necessarily) libertarians and vice versa.
1 Automatically giving up a seat rests on an unsupportable assumption of diminished capacity/autonomy.