Natural Law and Liberal Public Reason

American Journal of Jurisprudence 42:1 (January 1997), with Christopher Wolfe.

As the century winds to a close, John Rawls remains a–perhaps the–central figure in Anglo-American political philosophy. In his 1993 book, Political Liberalism, Rawls reformulated, and in certain respects revised, the liberal theory of political morality he advanced in A Theory of Justice (1971). Still, the upshot of Rawls’s theory is the same: when it comes to “constitutional essentials and matters of basic justice,” political power may not be exercised on the basis of controversial judgments of what makes for, or detracts from, a valuable and morally worthy way of life.

A key concept that Rawls has recently introduced in support of the “political liberalism” he espouses is the idea of “public reason.” The Rawlsian doctrine of public reason provides a new form of justification for the “bracketing” of fundamental and controversial moral, philosophical, and religious issues in politics-largely removing these issues from the agenda of political life in liberal democratic societies. Non-liberals, or at least those whose liberalism is of an older and more traditional stripe–especially those whose fundamental views are shaped by religion or ideas about natural law–are naturally suspicious of such a doctrine. Public reason is a doctrine devised and promoted by Rawls and other liberals–indeed, by people whose liberalism is not merely “political,” in Rawls’s terms, but also “comprehensive”–and it almost always has the effect of making the liberal position the winner in morally charged political controversies. It does this by, in effect, ruling out of bounds substantive moral argument on behalf of non-liberal positions. In this respect, the liberal public reason doctrine¬†brings to mind Bob Newhart’s comment about a television program based on Kim Philby, the British communist spy. Newhart imagines three spies sitting around together, and one of them asking “Has anybody else noticed that every time we put Philby on a case we all end up getting arrested?” Well, if we observe that whenever the doctrine of public reason is deployed, the result is that “we” (i.e., those of us who dissent from the prevailing liberal orthodoxy on questions such as abortion, euthanasia, homosexuality, and human cloning) are declared to have lost even before the argument begins, perhaps our suspicion is not entirely unwarranted.

The American Journal of Jurisprudence