Strong Political Liberalism

Law and Philosophy https://doi.org/10.1007/s10982-023-09491-z  The Author(s) 2024 HENRIK D. KUGELBERG STRONG POLITICAL LIBERALISM (Accepted 27 October 2023) ABSTRACT. Public reason liberalism demands that political decisions be publicly justified to the citizens who are subjected to them. Much recent literature emphasises the differences between the two main interpretations of this requirement, justificatory and political liberalism. In this paper, I show that both views share structural democratic deficits. They fail to guarantee political autonomy, the expressive quality of law, and the justification to citizens, because they allow collective decisions made by incompletely theorised agreements. I argue that the result can only be avoided by changing public reason’s role in collective decisionmaking. Instead of incompletely theorised agreements, we should demand agreement both on the public reasons themselves and on the other premises that justify political decisions. In this way, it is always possible to point to a procedureindependent reason that justifies democratic decisions, and the reasoning of the state is public and contestable. Finally, I explain how this, in turn, implies that only political liberalism can be rescued—by accepting what I will call strong political liberalism. Modifying justificatory liberalism in the necessary way will inevitably open the door to an objectionable form of perfectionism. In many liberal democracies, anti-discrimination rules do not apply to the employment of religious leaders. Christian churches, Muslim mosques, and Jewish synagogues are legally allowed to hire only male priests, imams, and rabbis. It is often thought that this so-called ‘ministerial exception’ follows from a commitment to freedom of religion. Moreover, it is said that this is a public reason, a reason that in some important sense is accessible to every reasonable citizen.1 However, there are also reasons available for thinking that the ministerial exception is wrong. For example, one such reason is that the exception could be said to communicate that women are inferior to men. Another is that the exception could be seen to be discrim1 Jonathan Quong, Liberalism Without Perfection (Oxford: Oxford University Press, 2011), pp. 205–206. H. D. KUGELBERG inatory in an objectionable way—it violates women’s robust freedom of occupational choice. Women who want to be priests, imams, or rabbis are denied this opportunity. These reasons, too, are commonly thought to be accessible to every reasonable citizen, and so they are typically also seen as public. It is a central feature of one of the most widely accepted views of liberal legitimacy, political liberalism, that political decisions must be justified with public reasons of this kind. Up until now, it has always been assumed that it is permissible to appeal to an indeterminate plurality of public reasons when justifying political decisions. In other words, decisions do not need to be justified by one public reason, or a clear ranking of public reasons. If a parliamentary majority wants to revoke the ministerial exception, and disagree about why that is, this is perfectly acceptable, as long as the reasons they rely on are public. One group can say that it communicates women’s inferiority, another that it violates robust freedom of occupational choice. It is enough that they accept the conclusion. A decision can be reached by way of an incompletely theorised agreement. Political liberalism belongs to a family of views of liberal legitimacy that is sometimes called public reason liberalism. Much recent work has focused on the differences between political liberalism and the main alternative in this family, justificatory liberalism.2 However, both family members share an important similarity: they allow incompletely theorised agreements. Yet, whereas political liberalism puts restrictions on the reasons legislators might have for accepting the agreement, justificatory liberals say that there is nothing precluding an agreement based entirely on non-public reasons. 2 Paul Billingham, ‘Convergence Justifications Within Political Liberalism: A Defence’, Res Publica 22 no. 2 (2016): 135–153; Paul Billingham and Anthony Taylor, ‘A framework for analyzing public reason theories’, European Journal of Political Theory 21 no. 4 (2022): 671–691; Gerald Gaus and Kevin Vallier, ‘The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry, and Political Institutions’, Philosophy & Social Criticism 35 no. 1 (2009): 51–76; Henrik D. Kugelberg, ‘Opposing laws with religious reasons’, Journal of Social Philosophy 52 no. 1 (2021): 132–151; Brian Kogelmann and Stephen Stich, ‘When Public Reason Fails Us: Convergence Discourse as Blood Oath’, American Political Science Review 110 no. 3 (2016): 717–730; Andrew Lister, Public Reason and Political Community (London: Bloomsbury, 2013); Andrew Lister, ‘The classical tilt of justificatory liberalism’, European Journal of Political Theory 12 no. 3 (2013): 316–326; Enzo Rossi, ‘Legitimacy, democracy and public justification: Rawls’ political liberalism versus Gaus’ justificatory liberalism’, Res Publica 20 no. 1 (2014): 9–25; Kevin Vallier, ‘Against Public Reason Liberalism’s Accessibility Requirement’, Journal of Moral Philosophy 8 no. 3 (2011): 366–389; Jonathan Quong, ‘What is the Point of Public Reason?’, Philosophical Studies 170 no. 3 (2014): 545–553. STRONG POLITICAL LIBERALISM In this paper, I argue that incompletely theorised agreements cause significant problems for liberal views of legitimacy. They undermine political autonomy, lead to an erosion of the expressive quality of laws and fail to ensure justification to citizens. These problems are present for both political liberalism standardly understood and for justificatory liberalism.3 I then demonstrate that political liberalism can overcome these problems. What I will call strong political liberalism, a view according to which there needs to be a majority agreement on the reasons justifying a decision, is a plausible and attractive alternative that does so. An upshot of my analysis is that justificatory liberalism cannot be salvaged without opening the door for an objectionable form of perfectionism. I make three main interventions. First, I argue that there is an intimate relationship between the decision-procedure we adopt, political autonomy, the expressive power of law, and justification to citizens. Second, I show how this entails that we must choose between committing to the standard interpretations of political liberalism and justificatory liberalism and upholding these ideals. I argue that we should opt for the latter, while changing our understanding of public reason’s role in collective decision-making. Instead of incompletely theorised agreements, we should demand agreement both on the public reasons themselves and on the other premises that justify a decision. (...truncated)