Public reason and political conflict: abortion and homosexuality.

AuthorGeorge, Robert P.
PositionGroup Conflict and the Constitution: Race, Sexuality, and Religion

Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties? This question is not about the possibility of political compromise; rather, it concerns the possibility of a certain type of moral agreement. This type of moral agreement is not agreement about whether abortion or homosexual conduct, for example, are right or wrong. Instead, it is agreement about basic principles of justice for a society composed of people who disagree about such issues.

One possibility is for people who disagree about the morality of particular acts or practices to agree upon fair procedures for the political resolution of moral disagreements. For example, people who disagree about the morality of abortion might, as a constitutional matter, agree upon democratic procedures for setting public policy on abortion. However, people of strong and settled conviction on either side of the debate over abortion cannot reasonably be satisfied of the justice of the fundamental law of their country simply because the procedures used to arrive at a resolution were democratic. From the pro-life point of view, any regime of law (including one whose pedigree is impeccably democratic) that deprives unborn human beings of their right to legal protection against homicide is gravely unjust.(1) Similarly, from the pro-choice viewpoint, restrictions on a woman's right to abortion are seriously unjust even if they were put in place by democratic procedures. From either perspective, the question of abortion is viewed as a matter of fundamental justice whose proper resolution is essential to the full moral legitimacy of the constitutional order. In this respect, the social conflict over abortion closely resembles the conflict over slavery. Of course, pro-life and pro-choice advocates may, for their own partisan reasons, or as part of a modus vivendi, agree to a constitutional requirement that public policy on abortion be settled by democratic procedures. But agreement of this sort is not agreement on basic principles of justice.

A number of leading liberal political theorists have proposed a different, and more radical, possibility. They contend that people who disagree about abortion, homosexuality, and other matters of allegedly "private" or "personal" morality can and should agree as a matter of fundamental justice to a constitutional principle that forbids government from substantially restricting or burdening people's liberty, or denying them equality of treatment, on the basis of controversial moral judgments about such matters.(2) This principle is one version of what is sometimes referred to as "antiperfectionism." Its proponents seek to provide the ground of a moral right, for example, to legal abortion and the legal recognition of same-sex unions, a ground which can rationally be affirmed as a principle of political justice even by people who believe that abortion and homosexual conduct are seriously immoral.

Why should people agree to the antiperfectionist principle? After all, the question of whether abortion and homosexuality are purely "private" or "personal" matters--matters that implicate no significant public interests--is as much in dispute as the question of whether these acts are immoral. From the pro-life point of view, abortion is no more "private" than infanticide and other forms of homicide. From the perspective of those who object to the public recognition or promotion of same-sex sexual relationships, the issue is no more a matter of merely "personal" morality than was (and is) the issue of polygamy. Understandably, critics of antiperfectionism suspect that it represents a kind of philosophical sleight of hand designed to induce dissenters from substantive liberal moral beliefs to accede to liberal hegemony in matters of public policy pertaining to issues such as abortion and homosexuality.(3)

Are antiperfectionism's critics correct? Or can a sound argument in defense of antiperfectionism be developed? In this Essay, I shall consider the recent effort of John Rawls and some of his followers to defend antiperfectionist liberalism in the form of a doctrine of "political justice." Their criteria of legitimate political advocacy and action in societies marked by group conflict over issues such as abortion and homosexuality centers around the idea of "public reason." I shall try to show that their arguments fail to provide compelling grounds for embracing antiperfectionism, and I shall illustrate this point by criticizing: (1) the sketch of a defense of a right to abortion proposed by Rawls in Political Liberalism and developed in greater detail by Judith Jarvis Thomson; and (2) Stephen Macedo's Rawlsian argument for the legal recognition of same-sex "marriages." I will then provide suggestions as. to how people with such disagreements can discuss and debate their beliefs in a peaceful and civil manner.

  1. POLITICAL LIBERALISM AND THE RATIONALIST BELIEVERS

    1. The Rawlsian Conception

      In his profoundly influential book, A Theory of Justice, Rawls defended a strict antiperfectionism.(4) This defense was embedded in a general theory of justice ("justice as fairness") that Rawls now says relied on a premise which the theory itself rules out, namely, the idea that "in the well-ordered society of justice as fairness, citizens hold the same comprehensive doctrine, and this includes aspects of Kant's comprehensive liberalism, to which the principles of justice as fairness might belong."(5) The problem with this idea is that neither liberalism, considered as a "comprehensive doctrine," nor any other comprehensive view is held by citizens generally in pluralistic societies such as ours. Nor is it reasonable under the circumstances of political freedom that characterize modern constitutional democratic regimes to expect that "comprehensive liberalism," or any competing comprehensive view, ever would be adopted by citizens generally. Rawls refers to this state of affairs as "the fact of reasonable pluralism," and it is the starting point of his revised argument for an antiperfectionist resolution of the problem of moral disagreement.(6)

      Rawls labels his revised proposal "political liberalism." His idea (or ideal) is that, for constitutional democratic societies such as ours,

      citizens are to conduct their public political discussions of

      constitutional essentials and matters of basic justice within the

      framework of what each sincerely regards as a reasonable political

      conception of justice, a conception that expresses political values that

      others as free and equal also might reasonably be expected reasonably to

      endorse.(7)

      In this framework, "deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime."(8) Debates over constitutional essentials and matters of basic justice are, for moral reasons (and not as a mere modus vivendi), to be conducted in terms of a "strictly political conception of justice,"(9) such as "justice as fairness"(10) as revised by Rawls in Political Liberalism. These debates are not to be conducted in terms of moral doctrines of justice, whether secular (e.g., Kantian or Millian liberalism) or religious (e.g., Catholic or Jewish), which are "general in scope"(11) and in dispute among reasonable citizens. In sharing a common "political" conception of justice, the partisans of competing reasonable . comprehensive doctrines participate in an "overlapping consensus" on basic principles of justice,(12) thus making social stability (despite the fact of pervasive moral disagreement about personal and social life) not only possible, but also possible "for the right reasons."(13)

      The alternative to a common commitment to a "political" conception of justice is for citizens in pluralistic societies to debate issues of constitutional essentials and matters of basic justice by appealing to general moral doctrines of justice connected to their various reasonable comprehensive views. In that case, liberalism--representing one comprehensive view with its own reasonable, but controversial, moral and metaphysical doctrines--would compete for ascendancy in the public square with a range of alternative religious and secular comprehensive views, some reasonable, some not,(14) but all characterized by controversial moral and metaphysical doctrines of their own. Rawls argues against this alternative, not on pragmatic grounds (such as fear that the conflict of comprehensive views at this level could lead to civil strife), but on moral grounds.(15) A strictly "political" conception of justice is, he maintains, the fairest and most reasonable way of settling constitutional essentials and matters of basic justice. "Political," as opposed to "comprehensive" or "metaphysical," liberalism consists precisely in the adoption of such a conception.

      What this means concretely is that, whenever constitutional essentials and matters of basic justice are at stake, political actors--including citizens as voters and public political advocates--are forbidden to act on the basis of principles drawn from their comprehensive doctrines, except to the extent that "public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support."(16) In this way, political liberalism constrains--sometimes quite radically--appeals to, and actions based upon, comprehensive doctrines including comprehensive liberalism. It does so on grounds entirely separate from the putative falsity, unsoundness, or unreasonableness of those doctrines or the specific principles drawn from them. Appeals to comprehensive doctrines are never legitimate in legislative assemblies or in the public acts and pronouncements...

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