Justificatory Liberalism (3) - Criticism

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Continued from Justificatory Liberalism (2) - The Theory - A Second Attempt and Justificatory Liberalism (1) - The Theory - A First Attempt

I contend that the various liberalisms (or most other accounts of liberty) are unable to fulfil their ambition to authentically represent freedom. In that sense no single liberal ideology does justice to freedom, though each may address valid aspects of her. Justificatory Liberalism is just another liberal ideology - the ideology of an academic subculture centred around Rawlsian political philosophy.

Criticism

1.

The first difficulty that I see with Gausian Justificatory Liberalism (GJL) relates to the assumption that the two problems of the state of nature, one moral, another practical, are really distinct, and, therefore, are being - or ought to be - dealt with separately.

The practical problem refers to the need to attain peace, coordination and collaboration in the face of diverse views and values.

The moral problem relates to the need of showing respect to one another as free and equal subjects by being sufficiently mindful of the respective epistemic standards on which the individuals assess the world around them. Put simply: in a free society it is out of the question to treat subjects as if their thoughts on issues of mutual concern do not matter.

However, this latter problem, that it is morally wrong to ignore a person's rightful expectation to be part of deliberations on public matters, is always a practical one.

Also it does not necessarily become a moral problem if the highest expectations that we have for such deliberations are not met. This is precisely because moral issues can have satisfactory practical solutions.

One such pattern of resolution emerges when we get used to playing games that make it likely for each of the participating party to achieve a sufficient net gain, even though repeated losses or defeats are the price of it.

Interestingly, by virtue of playing such games, our preferences and values may change, to make the game more successful for all of us.

First we may, accept political defeat on fundamental issue A, but then win on B, get defeated on C, and win again on D, and so on.

Each time, we have avoided a lethal end game, which is highly attractive in its own right.

If we also have grounds to expect that, defeat on a foundational issue notwithstanding, our overall conditions of coexistence have significantly/sufficiently improved, we have gained twice.

Over time, it may become customary to accept intermittent defeats and victories for peace, comfort and progress. This experience induces people to learn new forms of toleration, and actually adjust foundational issues in such a way as to make defeat more palatable and to be less stringent and less rigid concerning the conditions of victory, so as to further the long-term quality of the game.

Experience drives reasons. we adjust our reasons to our experiences, This adjustment can prove successful even though not totally tracked by complete and coherent arguments. We may simply find one day, we are no longer supporters of a strict "no to abortion."

What I describe is a transrational arrangement that defuses rational impasses. Many of our (initially) unresolved disagreements get buffered and transformed in this way.

2.

Before petering out in a number of platitudes about the merits of liberal democracy, in his theory of justificatory liberalism Gaus puts great store by the following condition:

To make genuine moral demands on others, and not browbeat them or simply insist that they do or believe what you want, you must show that, somehow, their system yields reasons to embrace your demand. Morality, then, requires that we reason publicly, from the standpoint of others.

In fact, he insists that we ought to and practically can build a common pool of reasons, an "eligible set," from which to pick publicly justified reasons so as to arrive at decisions and rules that commit all of us to observance and give us moral authority to insist on their being heeded.

It is thoroughly unreasonable to expect in the first place that fully enmeshed reasoning, as I may abbreviatingly call Gaus' condition of public justification,  is desirable or necessary to morally coordinate human beings either in their personal contacts or as members of society at large.

There is evolutionary sedimentation - the gradual and unperceived accumulation of rules, inhibitory and activating customs etc. - which has been working for thousands of years to prepare us for peaceful coordination and cooperation. We do not have to reason justifiedly in the Gausian sense in order to establish much of what makes us coexist comfortably. To a large extent, we rely on traditions and learned intuitions and other "tricks" of sociability. Attesting to this is the astounding continuity in legal precepts over thousands of years.

To be sure, societies that cannot be called free rely on these traditions as well. Of course, there are additional factors that make for a free society. However, a free society does not have to substitute these evolved auxiliary means before it can become free. Least of all, by jointly reasoning everything out on the basis of common grounds that can be, in principle, traced back to a strictly common eligible set of assumptions etc. from which we may choose different permutations, all of which, however, compelling us to a common justification of X.

Even where negotiated stipulations - as opposed to evolved rules, habits, regularities - are concerned, we may concur without working out or even being aware of justified public reasons. You  may agree to the privatisation of churches (the separation of state and religion) for entirely different and unrelated reasons compared to others: one may be concerned with peace and a more efficient political process unhampered by clashes of religious fanaticism; you may endorse it because you hate churches and hope this will be their demise; you may have a strategic agenda expecting some churches to weaken and your own to become more resilient and ultimately strong enough to dominate the state again. You may expect a popular uprising ultimately strengthening the side you are on. There is no end to non-congruent, non-dovetailing and unrelated reasons that make us adopt common regularities.

Think of a Nazi, deeply opposed to the political system of postwar Germany, its democracy, its freedoms. He may have good grounds to effectively act as if he shared publicly justified reasons that move many others to genuinely support the new type of society. Philosophically, he thoroughly despises the new system, but he has been successfully denazified and knows no better place to run a most profitable business which he enjoys managing as much as his family life and plenty of exceptional advantages of living in Germany.

A sudden switch from one type of society to another, such as occurred in Germany in 1933, may hold much hardship for some, but many others will be able to accommodate the alterations. People do not have to renegotiate a Gausian eligible set in order to adjust to changes in the political order surrounding them. They have plenty of other set-screws to fine-tune their adaptation, if the need of such settling in is perceived at all. A fortiori, in a reasonably stable social order, people accommodate change all the time with little or no participation in active civic deliberation.

While this is not the place to expand on this intuition, I suspect one sign of quality in a societal order is that there is little need to engage in Gausian public reasoning for it to work and provide an approved or accepted environment for people to live in.

And so, I do not believe that the cohesion of a liberal society depends on a Gausian moral pyramid whose base consists of successfully established public reasons, while its higher echelons are ever more loosely related to the base, with an umpire pushing the wobbly building blocks back into the structure to give it solid balance again.

There are at least two more problems with Gausian Justificatory Liberalism.

First, it is impossible to determine with tolerable precision whether 

• the liberal cohesion (rootedness of society in liberal values) of 

• social morality (the morality expressed in the regnant rules of social conduct)

has been accomplished at all along the ascending path from the victorious publicly justified reasons (the most basic values we putatively all agree on) at the base to the top rungs of the edifice fortified (to which degree?) by publicly justified reasons, or where the force of public reason get diluted (by what exactly?) peters out and finally becomes entirely cut off on its incomplete course, and where and how then other coherence-generators take over to keep society on a liberal course.

In other words, the transition towards and the replacement of public reason by other energies are pretty unclear in Gaus' construction.

Second,  if  we have grounds to believe that liberal cohesion has been established  - who is to tell us it has or has not, though? - are we not declaring victory for publicly justified reasoning based on a fallacy of the post hoc ergo propter hoc type?

If people behave as if they had jointly figured out a common moral basis with attendant commonly observed principles, rules and propensities to act or not to act, does this prove that they have actually achieved such concurrence and are cohering thanks to having worked out and ratified public reasons?

Ultimately this leads back to my earlier point: if people coexist peacefully this need not be the result of

• a moral covenant 

• based on a common set of values from which 

• conclusions are drawn that are intelligible and compelling to all participants of such public reasoning

• by virtue of deriving from a set of values each participant accepts. 

Of course it is tempting to conclude, and perhaps even true, that peaceful coexistence among human beings may be characterised in part by consciously and expressly sharing similar values and by rational processes of arriving at similar and compatible conclusions concerning moral behaviour. But this is not the whole story, as I have tried to explain above. And it is awkward in a classical liberal to look at a liberal order as the outcome of such comprehensive rational design.

At this point, Gaus is apt to backtrack, and make all sorts of concessions that may even accommodate my criticisms. But then, what exactly is the significance of Gausian public reasoning?

3.

Gaus makes use of a copious apparatus of technical argumentation, but the pomp quickly slims down whenever the crucial questions crop up. He dedicates a lot of space to spelling out the initial problem and the elements that need to be in place to solve it. But when he eventually gets to admit that the ideal solution is unlikely to be reached, he offers us trite suggestions of what might be tolerable and feasible instead. His deus ex machina is the umpire. And the umpire is democracy, more or less at large.

It is not easy to work through Gaus's books, which are full of jargon and intellectual subtlety, but once you get to the upshot, you experience quite an anti-climax.

At the end of the day, he does not seem to take his own principal concern seriously, the working out of genuine public reasons, conceding almost incidentally that other procedures are more efficacious and relevant than his intricate system of finding publicly justified reasons.

I cannot conceal my suspicion that this awkward imbalance is due to  the subcultural pressures of an academic philosopher, who is forced to take his peers more seriously than the substantive issue of freedom and the related epistemic demands of the public. It is ironic that the basic conditions of public reasoning, that he so elaborately works out in his theory, are not met by his own reasoning, which for its length, extension, and technicality barely intelligible and not really accessible to the public. Having dedicated a lot of time to the promise of his work, I feel I have been short-changed. 

I am deeply disappointed with Gaus' results.

Conclusion

Probably the chief disagreement that I have with Gerald Gaus is the result of my parting from his commitment to fully reasoned solutions. 

Whatever solution to a problem of political philosophy or practical politics he sketches, he  seems eager to get there by working out a chain of explicit deductions that purport to eventually establish the redressing outcome.

He does not invest much effort in considering designed or evolved practices that are instrumental in arriving at forms of acceptable, even comfortable coexistence by supporting in the first place, complementing, replacing, and even outperforming in their own right the practices of public reasoning.

Instead, Gaus assiduously presses for the idea that 

• we have always reasons, good reasons, to complete successfully any stage on our way to arriving at publicly justified reason. 

• We have reasons to form sufficiently similar values on the broadest issues of human coexistence to adopt them uniformly. 

• We have reasons to develop ways of choosing among our deviant conclusions from our similar values those conclusions that appear perhaps not absolutely preferred but justified to all of us.  

• All things considered, we have reasons to expect political and legal outcomes to be based on our general concurrence on publicly justified principles, rules and policies. 

While, I would concede that efforts at approximating such a state of affairs are vital to a liberal-democratic society of free subjects, nevertheless such efforts can neither be approximately effective nor are they sustainable, unless we also have in place appropriate transrational institutions, habits and practices. 

After all, Gaus has established neither 

(a) a liberal algorithm, as it were, which produces all the outcomes generated by the political process in such a way as to be in compliance with liberal demands, nor 

(b) an account as to how it is the case that solely liberal principles-and-procedures of the kind specified by Justificatory Liberalism bring about peace, productivity and personal freedom in society.

As for (a), it is evident that numerous, routinely and copiously made political decisions are unacceptable to those measuring them by a broadly liberal standard (think of protectionist tariffs, the minimum wage etc.). But also because multiple claims to and derivations of (original forms of) liberalism abound.

As for (b) much of the essential toleration and peaceful and relatively productive continuity that characterises modern societies is due to factors that cannot be ascribed to liberal prescription or explanation, which is true with particular force with regard to transrational habits and conventions.

At best, Gaus account is so general that all he can come up with in the face of the crucial questions facing his theory are truisms.

Gaus thematises an important challenge to liberal society - Rousseau's quandary of being free, yet obedient - but for all the technical sophistication that Gaus elicits, the workable results of his research are more than meagre. His theory is the upshot of an inward looking debate among academics crowding around political liberalism and its figure head John Rawls, all of who being more concerned with the expectations of their professional subculture and its esoteric deformations, rather than a presentation of liberalism that would stand at least a slim chance of qualifying for Gaus's purported main concern: public reasoning.