Feasible Freedom and Gausian Justificatory Liberalism

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Feasible Freedom

In my studies of freedom, I have so far come to the conclusion that freedom is a dynamic equilibrium such that a (historically unprecedented) maximum of dissent coexists with incentives to keep explosive tensions built up through free dissenting from destroying social cohesion.

True enough, it is not correct to think of dissension as necessarily productive of problematic (potentially destructive) tension; allowing dissension to take place can itself be a major form of placation and mutual social reassurance. It may be tolerated, on balance, as a productive feature, even though unpalatable under other aspects. Or it may be countenanced as a nuisance that other people are entitled to.

Still, under many other circumstances, dissension is a source of significant tension. It is interesting to note that most people are in favour of freedom of speech and expression, but are scandalised when this freedom is being pursued in concrete instances of political commitment. In such situations, dissension seems pushed to the limits of toleration. One may think of a bar at the edge of the plane of toleration against which tension - to be pictured as some kind of viscous mass - keeps piling up, hopefully without dropping off into the abyss of violent disagreement.

Ultimately, what keeps "the mass of tension" from dropping off into the abyss is a whole system of institutions that tend to ensure 

(a) sufficient de-escalation, or
(b) productive consequences of dissension. 

To neutralise, adequately reduce, or even transform it in productive fashion, dissension in modern society is not countered or absorbed by a single procedure but by a complicated host of such procedures, a veritable labyrinth of circuit breakers, reverse thrust aggregates and other means of containment and transformation.

The Umpire Solution to Public Justification

One of  the methods by which we cushion and peacefully channel the discord encouraged by freedom is based on a general presumption embedded in the legal and political institutions of a free society, whereby interference in the private domain of any citizen must be justified in terms that are intelligible and appear reasonable to the affected party. Very roughly speaking, this is what Gerald Gaus refers to as Justificatory Liberalism. The latter seems to require the use of search procedures (epistemological, cultural, political etc.) by which we can identify a minimal common ground consisting of convictions sufficiently similar to enable us to agree on the rules that bind us and the legitimacy of enforcing these rules.

Writes Gaus:

To escape the state of nature, in which each relies on her own moral judgements, we require rule by an "Umpire, by settled Standing Rules, indifferent, and the same to all Parties" -- that is umpiring through law. For all three philosophers [Hobbes, Locke, Kant - I.G.T.U.] law as articulated by the umpire is the definitive voice of public reason.   (p. 195)

Gaus, G. (1996), Justificatory Liberalism. An Essay in Epistemology and Political Theory, Oxford University Press

Gaus then states his main contention, using a phrase that I have not been able to understand as yet: "victorious justification," which seems to mean something like: we are all prepared to accept the grounds underlying that kind of, i.e. victorious, justification.

Thus, Gaus states that his

aim is to show that such an umpire can be victoriously justified ... Unless that that can be done, disputes about the publicly justified umpiring procedure will simply replace disputes about justice. As Nozick observes: "When sincere and good persons differ, we are prone to think they must accept some procedure  to decide their differences, some procedures they might they agree to be reliable and fair. [But] ... this disagreement may extend all the way up the ladder of procedures." Showing that the disagreement does not extend all the way up the ladder of political procedures is the main concern of social contract theory ... [I]t needs to be shown why umpiring through law is required to solve the problems raised by a clash of private judgements. That is, ... why does the analysis of conflicting private judgements indicate that the set of justifiable umpiring procedures must be restricted to those that rule through law?  (Ibid.)

Gausian Justificatory Liberalism

I believe that the Gausian project of justificatory liberalism describes an important section of the landscape of freedom. 

However, to the extent that I have comprehended Gaus, one reservation that I have about his presentation of justificatory liberalism is that he seems to fail to emphasise - if that is what he believes, in common with me - that public justification (see below) is only part of the institutional infrastructure of feasible freedom, complemented by other institutions, and mostly a means of approximation with fuzzy ends, inconvenient bumps, inappropriate turnings and dead-ends. It has a significant signalling and symbolic function, but ought not to be thought of as a routinely frequented road to final resolution.

Gaus seems to imply that public justification can be achieved, in principle, even though most people do not attempt or accomplish it most of the time. I am not sure that Gaus is right as to "achievability." I think that we simply cannot achieve Gausian public justification in numerous situations where such achievement would be tantamount to solving the issue at hand. We have to get on with one another in the absence of consummate public justification.

However, the moral and eventually habitual pressure to attain public justification, incessant efforts at coming as close to it as we possibly can, does contribute momentously to a climate of tolerance robust enough to achieve feasible freedom, i.e. the dynamic equilibrium between dissension and placation in modern civil society.

Let us see, where this is taking Gaus.

To be continued.