Legal Theory Final Summary PDF

What is Law? What is Politics? 2 Views on Law: Descriptive VS Normative Descriptive Sense: Law as it IS (just facts; the letter of the law) ○ Ex.) Isaac Newton’s Law of Gravitational Attraction It’s a universal law that describes how physical matters relate to...

What is Law? What is Politics? 2 Views on Law: Descriptive VS Normative Descriptive Sense: Law as it IS (just facts; the letter of the law) ○ Ex.) Isaac Newton’s Law of Gravitational Attraction It’s a universal law that describes how physical matters relate to one another in space ○ BUT whenever the law fails to grasp the facts, the law has to be adapted The law becomes invalid when it’s infringed Normative Sense: Law as it SHOULD BE (prescribes how reality should be) ○ Reality has to match the law (not the other way around) The law is no less valid simply because it’s infringed ○ Hans Kelsen: EFFICACY of law Law that fails to regulate political and social life is defective When a law is habitually infringed, there’s something wrong with that law What is Politics? Politics came from the need for societies to prioritize certain goals (because they can’t do everything at once) Politics is about DECIDING which goals to prioritize ○ Ex.) The EU’s fiscal policy: Should we prioritize fiscal balancing OR economic growth? Some people (like Carl Schmitt) think that the goals of the strongest are prioritized What is Law? Law = A normative order that allows social life and politics to take place The function of law: ○ Elementary (primitive) view of politics: There’s a problem ⇒ something needs to be done ⇒ opinions are heard ⇒ options are assessed ⇒ a decision is made ⇒ the decision is implemented This can be democratic OR undemocratic Law = a system of rules that enables communal will and regulates the interactions between GROUPS (members of the community) by establishing RIGHTS and OBLIGATIONS ○ Ex.) Nazi Germany: They DIDN’T abolish elections BUT changed the election laws They gave a list of 400 candidates for the parliament and the only options were “Yes, I agree” and “No, I disagree” What are Rules?  Rules = normative constructs that regulate actions Regulative VS Constitutive Rules (John Searle and John Rawls): 1) Regulative Rules: Rules that regulate actions that exist independently of the rules themselves ○ Ex.) Traffic laws People would move around anyway even without traffic lights, though it would be less safe When you run a traffic light, you’re still driving ○ 1.1) The action has to exist prior to (independently) of the rule ○ 1.2) Freedom is LIMITED by regulative rights Ex.) Every time you stop at a traffic light, it limits your freedom and takes your judgement away 2) Constitutive Rules: Rules that CREATE the behaviors / conducts that they then regulate ○ Ex.) Sports rules; board game rules These rules DON’T regulate previously existing behaviors / conducts The rules have created the games When you violate Chess rules, you aren’t playing Chess anymore ○ 2.1) The action DOESN’T exist without the rule ○ 2.2) Freedom is NOT limited by constitutive rules Constitutive and Constitutional Rules in the Constitution: ○ The constitution has BOTH Regulative and Constitutive rules Ex.) Regulative: Rules regulating public assembly Borderline case: VOTING Could be treated as either regulative OR constitutive Constitutive element: Formal procedure for valid voting Regulative element: Expressing consent ○ People would express consent anyway, like by raising hands or shouting RIGHTS count as constitutive rules (since they aren’t limiting freedom) Constitutions: Are they regulative rules or constitutive rules? ○ Everything that happens is constitutional, and if nothing happens, that would still be constitutional! Main Topic of Debate: 1) Where does law come from? 2) What makes law valid? ○ What distinguishes law from a set of valid norms and a set of norms that merely pretends to be law? ○ Scott Shapiro’s example: Lex and Phil  Lex (tribe leader) tells the tribe that he’s found the solution to solve conflicts between members of the tribe The solution: Lex will come up with rules to address the issues Everyone says ok BUT a legal philosopher named Phil objects There has to be a prior rule that tells Lex he has the right to make rules ○ Otherwise it’s an arbitrary exercise of power (like the gunman situation), which isn’t valid Lex says he’ll make a Rule #1 that enables him to make the rest of the rules Phil says that won’t work since there’s no previous rule to make a Rule #1 in the first place Lex proposes to have everyone vote to accept his rules Same problem: There’s no rule that empowers the tribe members to transfer the power to make rules to Lex Lex ignores Phil and makes the rules anyway, so the laws are born ○ The moral of the story: It’s a “chicken-and-egg” problem Ex.) US Constitution Who determines the validity of the constitution? ○ It was ratified by the required 3/4ths of the original 13 states ○ BUT there wasn’t a prior rule that conferred authority to the 13 states to ratify the constitution Article 7 set this up BUT it’s the same problem as Lex making a Rule #1 ○ The 2 Solutions: 1) Hans Kelsen’s Grundnorm: Prioritizes NORMS 2) Legal Positivism: Law is the product of the self-authorized will of the sovereign (also Schmitt’s idea) Prioritizes the SOVEREIGN Thomas Hobbes, John Austin, etc. Positivism VS Justice-tracking Law What Makes a Law Valid? 1) Legal Positivism: The ORIGIN of the law ○ Depends on the validity of the authority / sovereign who issued the law, NOT the content of the law ○ Thomas Hobbes: 3 principles 1) “What pleases the emperor has the force of law” 2) “The emperor is not bound by law”  3) “Give to everyone his due” (?) ○ 5 assumptions of Legal Positivism: 1) Law is MAN-MADE 2) Separation of law and morality 3) Pure analysis of legal concepts, distinct from other subjects 4) It’s a CLOSED logical system Correct decisions can be deduced from predetermined legal rules by logical rules alone Max Weber: Rule of law = state of affairs in which the legal consequences of ANY action can be calculated ○ ANY action can be described as legal or not legal 5) MORAL judgement CAN’T be established by logical roots But LEGAL judgement can 2) Justice-tracking Law: The CONTENT (merit / substance) of the law ○ Difference with natural law: Justice MATTERS In natural law, the law has to be moral but not necessarily just 3 Versions of Positive Law: 1) Thomas Hobbes: Contract Theory Hobbes’s 3 Main Ideas: ○ 1) Justice and injustice come from the law ○ 2) Law is a command with sanctions issued by a sovereign ○ 3) Sovereignty = ULTIMATE, unrestricted power (NOT under the law) Social order is MAN-MADE (it’s actually an advantage for humans) State of Nature: CONFLICT ○ Due to the selfish desires of each human and things like jealousy, rivalry, greed, glory-seeking, etc. ○ “War of all against all” (NOT all at the same time, but generally) ○ Unless peace is established, there’s an assumption of war ○ Life in this state of nature would be “poor, solitary, and short” ○ “Auctoritas non veritas facit legem” (authority, not truth, makes the law) Without an authority, there is no law Without law, there is no injustice People CREATE a sovereign and voluntarily give authority up to the sovereign ○ The Leviathan (the authority) gives the laws It needs A SWORD (sanctions) to enforce its laws ○ Sovereign absolute power (NO authority is above the sovereign) BUT this power isn’t all-encompassing  People are still free to act in matters where the sovereign is silent (they have residual powers) The Rights of the Sovereign (19 in total): ○ 1) The legal order is IRREVERSIBLE (legally) There’s no legal way of breaking it ○ 2) Being above the law ○ 3) CANNOT be tried / condemned for his actions ○ 4) Property is a POSITIVE creation (man-made) There’s no natural right to property When you’re dispossessed of property, you have no right to it ○ 5) NO separation of powers (the sovereign has all of the powers) ○ 6) Assessing whether war is for the public good ○ Etc. etc. The sovereign’s rights are BOTH prescriptive and normative Fundamental Laws: ○ Fundamental law = if it’s taken away, the entire commonwealth is destroyed ○ No one can repeal a law if not the sovereign himself Validity of Laws: ○ Tacit Consent: If no one objects to a law, that means everyone generally accepts it Norms that are met with silence are sort of legitimized in that way 2) John Austin: Command Theory of Law Law = a command from a sovereign backed with sanctions The sovereign must ACTUALLY be able to inflict sanctions Habitual Obedience: ○ The sovereign doesn’t habitually obey anyone else ○ The sovereign is the SOURCE of authorization There doesn’t have to be a norm above him There DOESN’T have to be a rule that establishes the sovereign H.L.A. Hart’s Criticism: ○ 1) Not all rules are commands since not all rules impose obligations & sanctions Ex.) Civil law & most things in private law (wills, etc.) ○ 2) Problems with the idea of habitual obedience: Habitual obedience doesn’t make sense when the king’s successor inherits the crown 2.1) There’s no habit of obeying the new king 2.2) Previous commands continue into the reign of the new king  ○ 3) There has to be primary norms that empower the sovereign with legislative power Thought Experiment: Society with NO written laws (just customary laws) Rules would evolve spontaneously 3) H.L.A Hart: “In the beginning were primary rules” (as opposed to the usual positivist “in the beginning was the sovereign” idea) Primary Rules: Regulate behaviors Secondary Rules: Regulate Primary Rules ○ They establish the authorities to regulate particular areas of social life ○ 1) Rules of Change 1.1) Rules that confer powers on individuals or groups to enact legislation 1.2) Rules that allow you to change your status Making contracts or wills, getting married, etc. ○ 2) Rules of Adjudication Rules that establish conflict adjudication Ex.) Establishing courts ○ 3) Rules of Recognition (can NEVER be questioned; it’s the basic aspect of a legal system) Rules that decide the validity of a legal system They authorize certain bodies to recognize new rules as binding DOESN’T depend on coercion 2 Versions of Natural Law: 1) Classic Natural Law - John Locke Inherits Hobbes’s Social Contract Theory ○ Legal order = formed by a rational agreement between people in the state of nature Locke’s State of Nature: State of liberty with basic freedoms ○ Humans have basic intuitions considering certain good or bad actions There are some basic goods / rights (e.g. life, liberty, and property) that are binding on us Individuals have the basic instinct to defend these rights, for themselves and others Each person acts as the judge in their own case Leads to inaccurate & inefficient rulings No concept of 3rd-party adjudication ○ Westphalian System (state of nature for nations): Every state self-authorizes its choices  International treaties / organizations: Created to act as 3rd-party adjudicators on conflicts between states Without international points of adjudication, human rights violations will be ignored when intervening would be inconvenient for the state Locke’s 2nd Treatise of Government ○ People voluntarily create a sovereign to have greater protection of their natural rights ○ People leave the state of nature because judgement ISN’T impartial in the state of nature (it’s determined by self-interest) Applies directly to contemporary legal theory with the advent of Human Rights Treaties, where certain rights are enshrined and bound to be protected ○ Sovereign failing to protect rights = worse than state of nature Better to be in the state of nature than in a commonwealth with unjust laws Validity of law = judged based on morality (natural law) Subjects have the obligation to REBEL 2 Key Points: ○ 1) Moving from the state of nature to a commonwealth could WORSEN the state of affairs ○ 2) Sovereign / lawgiver ISN’T above the law & and must respect the subjects’ natural law Sovereign = NOT absolute & must protect basic rights (otherwise, individuals can rebel) Hobbesian sovereign (above the law) = NO DIFFERENT from being in the state of nature (adjudication wouldn’t be impartial) The sovereign legislates, passes laws, and judges whether laws are applied correctly, BUT with respect to the fundamental rights ○ Sovereign should be kept in check by other bodies Standard for evaluating the justness of laws: NATURAL LAW ○ 3) Adjudication MUST made be by an impartial third-party Otherwise there’d be no difference between the truth and personal beliefs “I believe I’m in the right, and therefore I am because I judge” Who Can Infringe the Law? ○ Hobbes: Law can only be infringed from below (by the people) since the sovereign’s actions are law Locke’s criticism: If no one can judge between him and the sovereign, this is basically the state of nature (no impartial 3rd party adjudicator)  ○ Locke’s POV: The law CAN be broken from above by officials who overstep the limits of their power / authority and infringe rights By overstepping, the sovereign reinstates the state of nature & gives people the right to rebel Rebellion should be used prevent a descent into autocracy 2) Contemporary Natural Law - Ronald Dworkin (Anti-Positivist) Validity of law = determined by its moral MERIT ○ To understand the law, we need to understand what it OUGHT to say Some people understand the constitution as a series of rules ○ Certain legal principles (ex. no retroactive law) are basic and underlie the functioning of constitutions, whether explicitly stated or not ○ BUT Dworkin views the constitution as a compound of principles Principles VS Rules: ○ 1) Rules: 1.1) Black and white; they dictate the result of an action (NO EXCEPTIONS; legal certainty) Sets out automatic legal consequences once the conditions are met (all-or-nothing) Ex.) Running a red light = get fined 1.2) Prioritization; NO balancing (circumstances don’t matter) Ex.) Running a red light to drive someone to a hospital = still get fined 1.3) Can easily be enumerated CLOSED LIST ○ 2) Principles: 2.1) DON’T dictate a particular result for an action (has exceptions) A principle “states a reason that argues in one direction, but DOES NOT necessitate a particular decision” 2.2) Balancing (NO prioritization) Principles are BALANCED against each other ○ No exceptions ⇒ instead, balancing of principles Ex.) Chess principle where the king can only move 1 space VS Chess principle allowing for castling ○ The principle allowing for castling is prioritized when castling ○ This isn’t an exception, it’s a balancing of principles Ex.) The principle where you can’t profit from an unlawful act (has to be balanced with counter-principles)  ○ Ex.) Case where a grandson didn’t inherit his grandfather’s properties after murdering him ○ Ex.) Breaching a contract ⇒ getting a higher-paid job ⇒ forced to pay some compensation ⇒ profit (despite some penalty) 2.3) CAN’T easily be enumerated (there’s a LOT of them) OPEN LIST Can be written OR unwritten Some principles can be taken for granted / as universal fact and CAN’T enumerated ○ Ex.) Not being able to walk through walls Justice-tracking: Originalist View VS Dworkin’s Living Constitutionalist View ○ Originalist View: The law is the LETTER of the law The law says what the lawmaker intended to say ○ Living Constitutionalist View: Dworkin says we CAN’T separate the letter of the law and what the law OUGHT to be The law means nothing until it is interpreted ○ “The law is silent before interpretation” DISAGREES with the idea that the law says what the lawmaker intended it to say ○ 1) It’s difficult to determine which authors’ opinions matter The entire parliament? Or only the majority? ○ 2) It’s hard to determine a historical figure’s intentions What are the indicators of intention? What about those who partook in the creation of law, but whose intentions were not codified? How will their intentions be taken into account? These factors make the originalist view totally useless, for it is only speculative and presumptive Correct interpretation: Makes the most of the legal system and potentializes it for the best (through interpretation) Ex.) When a movie director chooses an end scene, the correct choice is the one that brings out the full potential Public VS Private Law Main Distinction:  Public Law: Concerns the VERTICAL relations between individuals and public institutions (also BETWEEN institutions) ○ Ex.) Parliament - Elected Government relation ○ Institution - Institution relationship types: Constitutional Law Criminal Law Tax Law International Law etc. Private Law: Concerns the HORIZONTAL relations between individuals ○ Includes: Contract law Commerical law Labor law Family law (in between private AND public law) The Distinction in Antiquity: ○ Roman Empire: Public Law = concerns the empire’s interests Private Law = concerns individual interests ○ Middle Ages: Main focus was on Canon Law VS Secular Law Public Law (Main Focus on Constitutional Law): Popular Sovereignty (Demos) VS Lawful Government: Popular Sovereignty: ○ 1) No individual rights ○ 2) No due process The people (majority) decided what would happen Ex.) You could be exiled by the will of the people Democratic Government: ○ YES individual rights ○ Has limits to public authority ○ Has limits to the will of the people Hans Kelsen Theories: ○ 1) General Theory of Norms: Validity of norms depends on FORM, NOT content Norms = Basic elements of the law (propositions that can direct behaviors; instruments of social techniques) ○ 2) Stufenbau (Hierarchy of Norms): Norms are validated by HIGHER norms  Grundnorm (basic norm) ⇒ Constitution ⇒ Powers ⇒ Laws ⇒ Decrees ⇒ Administrative orders and provisions ⇒ Contracts The constitution’s validity CAN’T be proven by the constituent power ○ Because the constituent power is NOT legal Kelsen sees the the constituent power as nonsense since it’s not part of pure law The constitution is validated by the Grundnorm ○ 3) Grundnorm = highest norm that gives validity to the constitution It’s a presupposed concept that serves to validate the constitution (it’s entirely theoretical) Constitution = the product of the will of the people The grundnorm is contentless and entirely hypothetical The Grundnorm is identical everywhere in the world The grundnorm isn’t real and can’t be validated, but that’s exactly Kelsen’s purpose He just wants to analyze the validity and normativity of the law, NOT its reality ○ 4) The state is a legal order (NOT a political organization) It’s an organized collection of norms (NOT a loose collection) There are subordinate norms under superior norms, etc. Kelsen says that a state IS its law Every issue can be solved directly within the legal sphere This is why Kelsen invented Constitutional Justice The law makes the people (not the other way around) Kelsen’s Quote #1: View of the Constituent Power ○ The constituent power is EXTRA-LEGAL (outside of the law) ○ If a revolution succeeds, the new legal order is considered to be valid A NEW grundnorm has been created Constituent power has been exercised ○ If a revolution fails, the act of trying to establish a new legal order is an ILLEGAL act (treason) Kelsen’s Quote #2: The People ○ “The people” = a system of individual legal acts performed by members of the state & regulated by the legal order NOT the conglomeration of actual persons It’s a collection of legal acts performed by the members of the state ○ “The law makes the people” (not the other way around) ○ Unity of the people = “the unity of the state’s legal order” Kelsen’s Quote #3: Validity of Law ○ Validity of laws DOESN’T depend on:  Merit, morality, justice, or any value transcending positive law ○ This is very close to the legal positivist view Kelsen’s Quote #4: Validity of Statutes ○ Statutes can only be valid IF it corresponds to the constitution Can’t be valid if it contradicts the constitution ○ The phrase “invalid statute” wouldn’t make sense since a statute can’t be a statute if it’s invalid ○ All norms can be semantically (by way of their meaning) understood as derivations (expansions) of higher norms Carl Schmitt Main Books: First major work: Political Theology ○ “Sovereign is he who decides on the exception” 1923: The Crisis of Parliamentary Democracy ○ Criticized liberalism and parliamentary democracy 1927: The Concept of the Political (politics = based on the friend-enemy distinction) 1928: A Constitutional Theory ○ Turned to institutionalism after previously focusing on sovereignty 1930s - end of WW2: Schmitt focused on criticizing the cosmopolitan liberal order (ex. Woodrow Wilson’s presidency, League of Nations, discussions about forming the UN) 1950: The Nomos of the Earth ○ Defends the old Westphalian system of international relations Westphalian System = basically a Hobbesian state of nature but among states instead of individuals States voluntarily form alliances without being forced to by a global framework ○ Sees a “global legal order” as a very dangerous move Because it “dehumanizes” the opponent as a criminal Schmitt’s Quote #1: The Constitution & Validity of Laws 1) Laws (including constitutions) are man-made; they MUST be established by a political will (aka someone has to establish it) ○ “Constitutions don’t fall from trees” - Prof Ferrara ○ Same as Kelsen’s argument: There must have been a PEOPLE who created the constitution 2) Constitutions derive their validity from the authority of the sovereign ○ “In the beginning was the sovereign” (as opposed to Hart’s “in the beginning there were primary rules” view) ○ The sovereign creates the state and the constitution 3) The state does not have a constitution; the state IS the constitution  ○ The state would disappear if the constitution disappeared; the constitution identifies the state Ex.) French First Republic, Second Republic, etc. It became a new republic every time the constitution was changed significantly ○ “The state presupposes the concept of the political” Means that the constitution is made against someone To draw a line between who is in and who is out (defines the friend-enemy distinction) This line could be based on ethnicity (but not necessarily) The state is a projection of the political (the friend-enemy distinction), NOT the other way around In everyday politics, the friend-enemy distinction isn’t that significant, BUT during states of emergency it is 4) The sovereign who creates the constitution comes in 2 forms: ○ 1) As a sovereign dictator It’s someone / a body whose authority IS NOT challenged Ex.) The Constitutional Assembly had the power to make the constitution and no one challenged its authority to speak for the people ○ 2) As a “lord of exception” Somebody who has the power to determine the exception Schmitt’s Quote #2: ○ 1) Schmitt’s 4 concepts / views (NOT types) of the constitution: 1) Absolute Constitution Encompasses the whole of the state (political unity AND social order) It’s MORE than just a set of legal norms ○ It’s a “form of forms” that DEFINES the state It’s the “soul of the polity” since it provides for continuity and distinctiveness throughout historical change A constitution lasts much longer than any specific government does 2) Relative Constitution Kelsen’s view: The constitution is a collection of legislative articles / provisions ○ Schmitt’s argument: Kelsen’s view is misleading since Kelsen implies that all of the articles have the same weight Reality: Some articles are more important than others  Ex.) Article 1 of the Italian constitution: the priority of labor over property ○ Property is a product of labor ○ So you have to recognize the priority of labor Having amendments reduces the constitutional provisions to the level of normal laws Just like how normal laws can be repealed and amended It’s a misconception ○ It makes us lose sight of the identity-forming nature of the constitution 3) Positive Constitution The constitution is the outcome of a political decision (aka the sovereign deciding, “this is the law”) ○ Relates to Schmitt’s Quote #2 ○ It’s a decision by the holder of the constituent power (which could be an individual OR a body) Many constitutions have a preamble that represents the decision made by the constituent power ○ It usually determines the form of the state (ex. federal state, parliamentary democracy, etc.) 4) Ideal Constitution It’s a polemical view / political act It’s a “never again” constitution that rejects a whole different approach ○ Acts as a bulwark against a return to the past ○ Ex.) Democracy instead of Fascism Schmitt’s Quote #3: ○ 1) The validity of the constitution also comes from its faithfulness to the political will of the subjects (laws must represent the political will of the people) Criticizes legal positivism (but his view is still political positivist) Norms are valid NOT because they should be valid BUT because they are positive norms even if they don’t regard reasonableness, justice, etc. CONTENT MATTERS since it must factually represent the political will BUT Schmitt’s view is also another form of positivism (political positivism instead of legal positivism)  ○ Since he says that the laws must factually represent the will of the people (but not necessarily morality) Schmitt’s view on amendments: Amendments reduce constitutions to the level of normal laws Amending = creating a WHOLE NEW constitution There’s no authorization to do it John Rawls The 22 Rawlsian Key Terms 1️⃣ Original Position (Rawls’s State of Nature) Definition: Basically Rawls’s State of Nature A hypothetical scenario where rational agents design the principles of justice for society. These agents are placed behind the veil of ignorance, meaning they have no knowledge of their personal status (like wealth, race, gender, intelligence, or social status) or specific preferences. ○ They don’t know how they’ll be personally affected by the principles of justice Purpose: Ensures impartiality: Strips away self-interest, forcing agents to act fairly for everyone. Promotes fairness: Agents must create principles of justice that apply universally, not just to benefit themselves. Role in Justice as Fairness: Serves as the starting point for selecting the two principles of justice. Ensures that principles are fair, just, and acceptable to all citizens, no matter their social position. Example: Imagine dividing a cake without knowing which slice you’ll get. To avoid getting stuck with a tiny piece, you’ll want every piece to be equal in size. This is the same logic behind the original position. Importance: Foundation of Rawls’s theory: Without it, self-interest could lead to unjust rules. Guarantees that no one is unfairly advantaged or disadvantaged due to luck, status, or ability. 2️⃣ Justice as Fairness Definition: Rawls’s political conception of justice that frames society as a fair system of cooperation among free and equal citizens. ○ The most reasonable principles of justice are those that would be the object of mutual agreement by persons under fair conditions It combines the two principles of justice (Equal Liberty and the Difference Principle) to regulate the basic structure of society. Core Idea: Unlike utilitarianism, which aims for the greatest happiness for the greatest number, justice as fairness prioritizes fairness and individual rights. Ensures everyone has equal rights and that inequalities benefit the least advantaged (affirmative action) Purpose: To achieve an Overlapping Consensus Key Features: 1) Fair Terms of Cooperation: Institutions ensure equal rights and opportunities for all. 2) Shared Public Justification: Justice principles must be justified in terms everyone can understand and accept. Example: Affirmative action policies might be justified under justice as fairness, as they aim to improve opportunities for the least advantaged. Importance: Alternative to utilitarianism: Rawls rejects sacrificing individual rights for "greater good" calculations. Provides a practical model for shaping fair social institutions and legitimizing state power. Fundamental Ideas Underlying Justice as Fairness 1) Society as a Fair System of Cooperation: ○ Central organizing idea that emphasizes fair collaboration among free and equal individuals across generations. 2) Citizens as Free and Equal Persons: ○ Citizens are viewed as moral and rational agents, capable of reasoning and cooperating under fair terms. 3) Well-Ordered Society: ○ A society effectively regulated by a shared political conception of justice. 3️⃣ Two Principles of Justice as Fairness 1️⃣ Equal Basic Rights (Negative Rights / Liberty): Everyone gets equal basic rights and liberties (like free speech, religion, and voting). 2️⃣ Difference Principle (Positive Rights / Fair Equality of Opportunity): Inequalities are only justified if they benefit the least advantaged. Opportunities must be equally accessible to all. Order of Priority: Basic Rights (Liberty) > Difference Principle: Liberty can’t be sacrificed for economic gain. Example: Allowing billionaires to exist is justified only if their wealth benefits the least advantaged (e.g., taxes, charity). Importance: This is the core product of the original position. It guarantees both freedom and fairness, with inequalities allowed only if they help the least advantaged. 4️⃣ Veil of Ignorance Definition:  A mental device in the original position that deprives individuals of knowledge about their personal characteristics (like race, wealth, or intelligence) or their position in society. Purpose: Removes bias: Forces decision-makers to be impartial. Encourages fairness: Without knowledge of their own status, agents create fair principles to protect themselves no matter where they "land" in society. What’s Hidden: Personal details like gender, class, religion, wealth, intelligence, and abilities. Personal life goals, beliefs, and moral views. What’s Known: General facts about society, like the existence of inequality, human psychology, and resource scarcity. Example: Designing traffic laws behind a veil of ignorance means you won’t know if you’ll be a driver, pedestrian, or cyclist. You’d likely create rules that prioritize the safety of all three groups. Importance: Guarantees impartiality: No one can "rig the system" in their favor. Forces citizens to act morally and fairly, even if they don’t know their social role. 5️⃣ Reflective Equilibrium Definition: A method of reasoning where people seek consistency between general principles (rights / rules) and particular judgments (opinions) about justice (i.e. what principle to prioritize). If a conflict arises, either the principle or the judgment must be revised to achieve balance. 2 Types of Reflective Equilibrium: 1) Narrow Reflective Equilibrium: Focuses on personal convictions and immediate judgments. 2) Wide Reflective Equilibrium: Includes philosophical views and broader moral perspectives. Purpose: To achieve moral coherence: Ensures that principles and individual moral judgments align. Explains how people can endorse the two principles of justice. Example: You might believe in free speech but also believe hate speech should be restricted. ○ Options: Revising one of the principles (adding exceptions) Letting one principle override the other Changing the judgement (your opinion) to conform with one of the principles Importance: It’s Rawls’s method of justification for his two principles of justice. Helps create a stable foundation for shared moral reasoning in society. 6️⃣ Circumstances of Justice Definition: The conditions where justice becomes necessary. 2 Main Conditions: ○ 1) Objective Circumstances: Resources are moderately scarce (not abundant, but not entirely absent). ○ 2) Subjective Circumstances: People have conflicting interests and pursue different goals. Why It Matters: If resources were unlimited, there’d be no need for rules of justice. If survival was at stake (like extreme scarcity), people would prioritize survival over fairness. Example: In a famine, justice might collapse as survival instincts override cooperation. But in normal circumstances, justice can regulate the fair distribution of resources. Importance: Explains why justice exists: It arises to manage limited resources and competing goals. Shapes Rawls’s vision of society as a system of fair cooperation. 7️⃣ Fact of Pluralism Definition: The inevitable diversity of worldviews in democratic societies (religious, philosophical, and moral beliefs). Has to be differentiated between reasonable and unreasonable pluralism. Why it Happens: Free societies encourage critical thinking, leading to a range of views. Rawls’s View: Reasonable pluralism isn’t a flaw, it’s a permanent feature of free societies. Example: Different religions (Christianity, Islam, Atheism) coexist in liberal democracies, but they must support shared rules like free speech. Importance: Explains the need for a political conception of justice, not one based on religious or moral consensus. Forms the basis for Rawls’s public reason. 8️⃣ Reasonable Pluralism Definition:  The peaceful coexistence of different reasonable worldviews (religions, moral beliefs) within a democratic society. Reasonable vs. Unreasonable Doctrines: Reasonable: Respects others' rights and recognizes the burdens of judgment. Unreasonable: Demands conformity (like religious fundamentalism). Importance: Legitimizes the concept of public reason, since people with different worldviews can agree on shared public values. 9️⃣ Political Conception of Justice Definition: A freestanding conception of justice, not tied to any religious or philosophical doctrine. Features: Draws on public reason. Applies to the basic structure of society (not personal life). Example: Religious groups may support free speech for different reasons, but they can all support it as a principle of public justice. Importance: Ensures political stability in pluralistic societies. Allows people with different beliefs to agree on shared rules. 🔟 Basic Structure of Society Definition: The social, political, and economic institutions that shape people's rights, duties, and opportunities (like courts, laws, schools, and markets). Purpose:  The basic structure is the primary subject of justice. ○ It’s where the two principles of justice as fairness are applied. Example: Public education, voting rights, and tax systems are part of the basic structure. Importance: Since the basic structure shapes people's life chances, it must be just and fair. It’s the focus of Rawls’s theory of justice. 1️⃣1️⃣ Comprehensive Doctrines Definition: Moral, philosophical, or religious worldviews that provide a complete framework for how people view the world, their purpose in life, and the nature of morality. ○ Can be Fully Comprehensive (covering all aspects of life) or Partially Comprehensive (focused on certain areas, like ethics or politics). Examples of Comprehensive Doctrines: Religious doctrines that explain life's purpose and moral obligations. Secular doctrines (like utilitarianism or Kantian ethics) that focus on morality, fairness, and rationality. Purpose: Shows that, in a pluralistic society, people have irreconcilable but reasonable worldviews. Rawls argues that no single comprehensive doctrine should control political principles in a democracy. Role in Justice as Fairness: Comprehensive doctrines influence personal beliefs, but political conceptions of justice must be freestanding (not tied to one worldview). Public reason ensures that political decisions are justified without relying on any one comprehensive doctrine. Importance: Recognizing comprehensive doctrines highlights the need for public reason.  Explains why society can’t be built on any one religion or ideology. 1️⃣2️⃣ Society as a Fair System of Cooperation (and Union of Social Unions) Definition: Society is a system where free and equal citizens work together for mutual benefit, guided by fair rules of cooperation. The "Union of Social Unions" means that within society, smaller groups (like families, associations, and clubs) operate as smaller cooperative units that reflect the larger system. Core Idea: People aren't isolated individuals but are members of many overlapping "unions" (like families, workplaces, and communities) that come together under the basic structure of society. Purpose: Emphasizes that social cooperation should be voluntary and mutually beneficial. Shows how justice as fairness extends to all parts of society, not just government institutions. Importance: Legitimizes social institutions like schools, families, and workplaces as essential components of a just society. Reinforces the idea that justice should be consistent at all levels of society. 1️⃣3️⃣ Political Conception of the Person Definition: A view of citizens as free, equal, and rational agents with 2 moral powers: ○ 1) Sense of Justice: Ability to understand and act according to shared principles of justice. ○ 2) Conception of the Good: Ability to form and pursue a personal life plan. Core Idea:  People are seen as moral agents with rights and responsibilities, not just self-interested beings. Unlike a "comprehensive" view of the person (which might include spiritual or religious traits), Rawls focuses on these two moral powers. Purpose: Justifies why all citizens deserve equal rights in a just society. Provides the foundation for public reason and justice as fairness. Importance: Rawls’s vision of the person underpins the original position and explains why all people deserve equal treatment. Without this concept, it would be harder to argue for universal rights and equality. 1️⃣4️⃣ Well-Ordered Society Definition: A society where citizens: ○ 1) Share the same conception of justice (principles of justice). They accept AND know that everyone else accepts these principles of justice Allows them to comply ○ 2) Have just institutions. The basic structure of society (its political and social institutions) must be publicly known or reasonably believed to comply with those principles ○ 3) Develop a sense of justice that allows them to act on these principles. Requirements (Assumptions): 1) Stability for the right reasons (not fear of punishment). 2) Institutions reflect principles of justice as fairness. 3) Citizens trust each other to follow the rules. ○ Very important because [reasonable] individuals need this Example: Imagine a society where everyone accepts and follows the same fair rules of cooperation, even when no one is watching. Importance: The well-ordered society is the end goal of justice as fairness. It’s a model for how social cooperation works under fair rules. 1️⃣5️⃣ Rational vs. Reasonable Definition: Rational: People who pursue their personal goals or self-interest (unwilling to make sacrifices). Reasonable: People who are willing to cooperate fairly (accept fair terms of cooperation and follow them as long as others do as well) and accept the burdens of judgment. ○ NOT totally altruistic (since they want others to follow the rules as well) Key Differences: Rational agents focus on their personal advantage. Reasonable agents seek fair terms of cooperation, even if it means self-sacrifice. Example: A rational person seeks wealth for themselves. A reasonable person agrees to taxation, even if it limits their wealth, to support public goods like education and healthcare. Importance: The original position depends on agents being rational BUT also constrained by the reasonable. Both rationality and reasonableness are necessary for cooperation and justice as fairness. 1️⃣6️⃣ Burdens of Judgment Definition: The reasons why reasonable people can disagree on moral and political issues. Sources of Burdens:  Conflicting evidence (different interpretations of facts). Weight of moral considerations (values like liberty vs. security). Complexity of situations (many moving parts to consider). Different life experiences. Importance: Explains why reasonable pluralism exists in free societies. Shows why people with different worldviews can still be reasonable and cooperative. 1️⃣7️⃣ Liberal Principle of Legitimacy Definition: Political power is legitimate ONLY IF it’s exercised in ways that all citizens can reasonably accept. Citizens must be able to justify the exercise of power using public reason. Purpose: Prevents the imposition of one comprehensive doctrine. ○ Ensures that coercive laws are justified by shared principles, not ideology. Importance: Guarantees that laws respect pluralism. Promotes the idea of justified coercion, where even those who lose in a vote can accept the outcome. 1️⃣8️⃣ Overlapping Consensus Definition: A stable agreement (supported by moral reasons) on political principles by citizens who have different reasonable comprehensive doctrines (worldviews), allowing stability in a pluralistic society ○ People with different comprehensive doctrines can all support the same political rules for different reasons. ○ [Must be STABLE FOR THE RIGHT REASONS] ○ Much more long-lasting than a modus vivendi Example: Religious groups, atheists, and utilitarians may all support freedom of speech, but for different reasons (human dignity, personal autonomy, etc.). Importance: Shows how a society with pluralism can be stable for the right reasons. It’s more durable than a modus vivendi, which is just a temporary truce. 1️⃣9️⃣ Constitutional Consensus Definition: A more basic form of agreement on constitutional rules and legal procedures, BUT not necessarily on philosophical / moral principles. Example: Citizens might agree on voting rights and free speech without agreeing on the moral basis for these rights. Importance: It’s the first step toward overlapping consensus. Provides a foundation for legal stability in pluralistic societies. 2️⃣0️⃣ Modus Vivendi Definition: A temporary peace agreement based on strategic compromise, NOT shared moral values. ○ Unstable & lasts as long as it serves everyone’s interests Example: A ceasefire between warring factions (it’s fragile). Importance: Rawls distinguishes it from an overlapping consensus, which is more stable because it’s supported by moral reasons, not just convenience. 2️⃣1️⃣ Public Reason Definition: A shared mode of reasoning used in public debates about constitutional essentials and basic justice. Citizens must justify laws with FREESTANDING public values (like fairness and equality), not private religious or ideological beliefs. Example: A judge justifies a ruling on the basis of equality under the law, not personal religious beliefs. Importance: Prevents sectarian rule (like theocracy). Ensures that laws are justified in ways that all citizens can accept. 2️⃣2️⃣ Constituent Power Definition: The power of the people to create or revise a constitution. This power is often used during revolutions or founding moments of new states. Example: The U.S. Constitution was established through the constituent power of the people. Importance: Links to constitutional legitimacy. Empowers citizens as the ultimate source of political authority. Political Conceptions of the Person Rousseau’s View: The individual has an intrinsic “propensity” (inclination) for association Hobbes’s View: Opposite view (Hobbesian): State of nature = Individuals have NO natural propensity to social life Rawls’s View: NEUTRAL conception of the person 1) Human beings are endowed with the moral power to conceive an idea of “the good” (and to change it whenever deemed necessary) ○ Acting = linking together ends and means ○ Living a good life is an end in and of itself 2) Each individual recognizes each other’s autonomy ○ Opposite: Slavery (slaves need their master’s permission to authorize claims) 3) Individuals are free insofar as they recognize the limits to which they can advance their claims (views of “the good”) ○ So one person’s freedom can’t limit other people’s freedom (?) ○ Ex.) Someone’s view of “the good” can’t require killing, since that would violate justice Political Liberalism (the Concept) What is Political Liberalism? It’s the insistence that, in order to maintain its legitimacy, a liberal state MUST commit itself to public reason ○ Citizens must engage in debates with each other ONLY through FREESTANDING public values (their shared mode of reasoning) Ex.) Fairness and equality (not private moral or religious views) 3 Conditions For Political Liberalism (for society to be a fair system of cooperation between equal and reasonable citizens): 1) Society is regulated by a political conception of justice (as opposed to a comprehensive, non-political conception of justice) ○ Ex.) Some people might say everyone needs to have the right view of justice and we need to disregard those who don’t 2) The political conception of justice needs to have an overlapping consensus from all reasonable conceptions of justice (enables people from different views of political justice to accept it) ○ Ex.) Italian Constitution: Formed by Catholics, Marxists, and liberals who found common ground and had a consensus ○ BUT there can be some outliers (unreasonable comprehensive worldviews; extremists) 3) Public Reason: Public discussions need to be conducted by reasoning from the point of view of what is common ground (freestanding public values)  Political Liberalism (John Rawls) Introduction & Lecture 1 🌐 Key Concepts and Themes Political vs. Comprehensive Doctrines: ○ Political Conception: A shared, FREESTANDING moral framework focused on the basic structure of society. DOESN’T derive itself from any comprehensive doctrine Instead, draws on shared public values (liberty, equality, fairness) Can be supported by groups with different comprehensive doctrines (for different reasons) Ex.) Catholics, Marxists, and Kantianists might all support the freedom of speech (but for different reasons) They focus exclusively on the basic structure of society (unlike general moral doctrines that apply universally) ○ Comprehensive Doctrines: Broader religious, moral, or philosophical worldviews that are NOT shared by all citizens. Includes both religious and secular doctrines (like utilitarianism, Kantianism, etc.). 3 Elements of Social Cooperation (based on Justice as Fairness): ○ 1) Guided by Rules: Cooperation ≠ coercion (it must be voluntary) Operates through publicly recognized rules and procedures accepted by participants ○ 2) Fair Terms of Cooperation: Terms are based on reciprocity (acceptable for reasonable individuals): Each participant must reasonably accept them, provided everyone else does the same. These terms regulate basic rights, duties, and the fair distribution of benefits over generations. Principles of justice serve as benchmarks for fairness ○ 3) Participants' Rational Advantage: Cooperation considers each participant's / group’s rational goals or good Justice as fairness balances individual rational goals with collective fairness Political Conception of the Person: ○ A person = a free, equal, and rational agent who is able to participate in social cooperation (exercising rights, respecting obligations) & has 2 moral powers:  1) Sense of Justice: Ability to understand and act according to shared principles of justice 2) Conception of the Good: Ability to form and pursue a personal life plan. Not permanently tied to any particular conception A person’s public identity (rights, duties, etc.) is INDEPENDENT of their conception of the good ○ People are seen as moral agents with rights and responsibilities, not just self-interested beings. Unlike a "comprehensive" view of the person (which might include spiritual or religious traits) ○ Rawls’s conception of the person is political, NOT metaphysical (doesn’t assume that people are purely rational) ○ How it relates to Justice as Fairness: Citizens are free because they possess moral powers. Citizens are equal because they can fully participate in cooperation. Conceptions of the Good: ○ Includes: Final ends (goals valued for their own sake). Attachments to people, groups, and ideals (e.g., loyalty, affection). Broader views of life’s meaning (religious, moral, or philosophical). ○ These conceptions are dynamic and evolve over a person’s lifetime. Public Reason: ○ Public reason governs political deliberation on constitutional essentials and issues of basic justice. ○ It requires citizens to offer FREESTANDING public reasons (ex. equality, fairness) for political positions that others can reasonably accept. Overlapping Consensus: ○ Stability is achieved through an overlapping consensus where citizens support the same political conception of justice, though for different reasons tied to their own doctrines. ○ Unlike a modus vivendi (pragmatic truce), an overlapping consensus is stable for the right reasons (moral agreement, not self-interest). The Original Position: ○ Used to help determine the fair terms of cooperation for a society under justice as fairness ○ Basically Rawls’s State of Nature ○ It’s a hypothetical scenario where rational agents design the principles of justice for society.  ○ These agents are placed behind the veil of ignorance, meaning they have no knowledge of their personal status (like wealth, race, gender, intelligence, or social status) or specific preferences. They don’t know how they’ll be personally affected by the principles of justice ○ Ensures impartiality & fairness Veil of Ignorance: ○ Method used in the Original Position where the rational agents who design principles of justice lack knowledge about their own social status, preferences, and qualities Ex.) Race, gender, wealth, religion, etc. Reflective Equilibrium: ○ Our role as theorists / observers is to evaluate justice as fairness through the Reflective Equilibrium ○ It’s a method of reasoning where people seek consistency between general principles (rights / rules) and particular judgments (opinions) about justice (i.e. what principle to prioritize). ○ If a conflict arises, either the principle or the judgment must be revised to achieve balance. ⚖️ Liberal Principles of Justice Political Conception of Justice: ○ A freestanding conception of justice, not tied to any religious or philosophical doctrine. ○ Relies on public reason. ○ Applies to the basic structure of society (not personal life). ○ Allows people with different beliefs to agree on shared rules. Ex.) Religious groups may support free speech for different reasons, but they can all support it as a principle of public justice. ○ Allows for stability in pluralistic societies Liberal Principle of Legitimacy: ○ Coercive political power is legitimate only if it is exercised according to principles that all citizens can reasonably accept. ○ Political decisions must be justifiable through public reason, even to those who reject the underlying comprehensive doctrines. Reasonable Pluralism: ○ Recognizes that in a free society, citizens will naturally adopt diverse comprehensive doctrines. ○ The challenge is how to achieve political stability without forcing people to abandon their worldviews.  Overlapping Consensus: ○ A stable agreement (supported by moral reasons) on political principles by citizens who have different reasonable comprehensive doctrines (worldviews), allowing stability in a pluralistic society People with different reasonable comprehensive doctrines can all support the same political rules for different reasons. [Must be STABLE FOR THE RIGHT REASONS] Much more long-lasting than a modus vivendi ○ NOT a political compromise: NOT a way of tailoring justice to fit existing comprehensive doctrines or to find a "balance" between them. The Well-Ordered Society: ○ A well-ordered society has three features: 1) Shared conception of justice: All citizens know & accept & comply with principles of justice AND know that others will do the same. 2) Just institutions: Institutions comply with the agreed-upon principles of justice. 3) Effective sense of justice: Citizens develop a moral capacity to understand and act according to justice. ○ Unlike associations, it DOESN’T have final ends (ex. religious salvation) What is a “Society”? Society is NOT: ○ 1) A community Because communities are unified by a shared comprehensive doctrine Ex.) A single religion / moral view Democratic societies must respect reasonable pluralism ○ 2) An association Because associations have membership criteria & specific purposes You can enter or leave it whenever you want (NOT born into it) Associations can pursue specific nonpolitical aims because (since their members already enjoy the guarantees of equality and freedom provided by society’s basic structure) A Well-Ordered Society IS: ○ A fair system of cooperation between free and equal citizens over time, spanning generations ○ A CLOSED society (members enter through birth and leave through death) Shapes its members’ identities  Lecture 2: The Powers of Citizens and their Representation Rawls’s 2 Questions: 1) What is the most appropriate conception of justice to establish fair terms of social cooperation among citizens viewed as free and equal AND fully cooperating over complete lives, across generations? 2) How can we establish grounds for toleration, given the reasonable pluralism of religious, philosophical, and moral doctrines, which inevitably arises in free societies? Combined Question: How can a just and stable society of free and equal citizens exist over time despite profound, reasonable disagreements on ultimate truths (given divisions in reasonable religious and moral doctrines)? Answer: A society governed by a political conception of justice, supported by overlapping consensus among reasonable comprehensive doctrines, serves as the basis for public reason in debates over constitutional essentials and matters of basic justice. 1️⃣ The Rational and the Reasonable Core Distinction Rational: People who pursue their personal goals or self-interest (unwilling to make sacrifices). ○ BUT this self-interest can include attachments to family, religion, or community (so it’s not entirely selfishness) ○ Doesn’t guarantee fairness or cooperation ○ Used as lawmakers for the Original Position Reasonable: People who are willing to cooperate fairly (accept fair terms of cooperation and follow them as long as others do as well) and accept the burdens of judgment. ○ They require reciprocity NOT totally altruistic (since they want others to follow the rules as well) ○ BUT they’re willing to act on fair principles even when it’s against their self-interest. Ex.) Paying taxes to improve public education even though it limits their wealth (and even if they don’t use public education) Why They Complement Each Other Rawls argues that both the reasonable and the rational are necessary for cooperation.  The original position ensures fair terms by balancing rational interests with reasonable constraints. Cooperation requires both: ○ Without reasonableness, rational agents become exploitative. ○ Without rationality, reasonable agents lack purpose for cooperation. 2️⃣ The Burdens of Judgment Definition and Causes The burdens of judgment explain why even reasonable people disagree on political and moral issues. Sources of disagreement include: ○ Conflicting Evidence: Scientific or empirical evidence is often complex. ○ Weight of Considerations: People prioritize evidence differently. ○ Vagueness: Key concepts (e.g., equality) are open to interpretation. ○ Divergent Life Experiences: People’s personal experiences shape how they perceive evidence. ○ Competing Values: Different values must be balanced, but there is limited "social space" for all values. ○ Complexity of Normative Assessments: Weighing different moral, legal, and political considerations is difficult. Consequences for Political Liberalism The burdens of judgment explain why reasonable pluralism is inevitable in free societies. Tolerance becomes a necessary political virtue, since no single doctrine can claim absolute moral authority. Political legitimacy must be based on public reason, not coercion or enforcement of any particular doctrine. 3️⃣ Reasonable Comprehensive Doctrines Defining Features Coherent and Consistent: Comprehensive doctrines organize moral and philosophical values into a unified system. Evolving Over Time: Comprehensive doctrines (like religious or philosophical beliefs) develop gradually.  Rooted in Reason: Doctrines reflect moral reasoning and offer rational support for social cooperation. Pluralism and Toleration Reasonable Pluralism arises from the burdens of judgment, leading to a variety of reasonable doctrines in society. Toleration is not merely a concession but a recognition of human fallibility and the inevitability of disagreement. Public reason prevents one doctrine from dominating political life, ensuring political stability. Lecture 4: The Idea of an Overlapping Consensus 1️⃣ How is Political Liberalism Possible? The Problem of Stability in a Pluralistic Society Core Challenge: ○ How can a just, stable society endure despite deep moral, religious, and philosophical divisions among its citizens? ○ How can citizens with radically different comprehensive doctrines (e.g., Christianity, utilitarianism, and secular humanism) all support the same set of political principles? Overlapping Consensus vs. Modus Vivendi Modus Vivendi: ○ A temporary compromise based on self-interest and balance of power. ○ Example: Imagine two rival political factions agree to a peace treaty. The treaty only holds as long as neither side gains an advantage. If one side becomes more powerful, they’ll break the treaty. ○ Unstable: If a group gains more power, they’ll impose their own agenda. Overlapping Consensus: ○ A moral agreement where citizens from different reasonable comprehensive doctrines endorse the same political conception of justice for different reasons (they see it as moral from their own perspectives). ○ Citizens support the principles of justice as morally correct, not merely as a strategy to avoid conflict.  ○ Stability: It persists even when power shifts, because the support for political principles is deeply rooted in moral convictions, not just convenience. Stability arises when this consensus aligns with the essential interests of society's citizens ○ Example: Catholics, utilitarians, and atheists may all support the right to religious freedom, but for different reasons: Catholics might value it as part of human dignity and the Church's stance on conscience. Utilitarians might see it as maximizing well-being and reducing social conflict. Atheists might see it as essential for protecting personal autonomy. ○ Each group reaches the same conclusion but for distinct reasons. Freestanding Political Conception A political conception of justice (like justice as fairness) does NOT depend on any one comprehensive doctrine. It draws on public reason and appeals to shared values (e.g., equality, liberty, and reciprocity) that all reasonable citizens can recognize. By being freestanding, the political conception of justice avoids divisive philosophical or religious debates. What Makes It Possible? Reasonable Pluralism: Free societies naturally generate diverse views on morality and philosophy. The Liberal Principle of Legitimacy: Coercive political power is legitimate only if it is based on principles that all citizens could reasonably accept, even if they have different worldviews. 2️⃣ Stability For the Right Reasons Two Kinds of Stability 1. Practical Stability (in modus vivendi): ○ People follow the rules because it’s in their self-interest. ○ If a group's power grows, it will abandon the agreement. i. Ex.) In international relations, treaties may be abandoned if one country gains significant power, as seen in shifting alliances during wartime.  2. Moral Stability (Liberal Stability - in a Well-Ordered Society with an overlapping consensus): ○ Citizens follow rules out of moral conviction, not fear of punishment. ○ Example: A citizen respects religious freedom not because they fear punishment but because they believe in the principle of human dignity. ○ Liberal stability is more enduring because citizens' sense of justice is aligned with the principles of justice. How Is Stability Achieved? Through an overlapping consensus, citizens endorse justice as fairness from within their own comprehensive doctrines. Moral Development: Just institutions shape citizens' moral character. Over time, people come to see principles of fairness, liberty, and equality as morally justified. Public Trust: If people see that others are upholding the principles, they’re more likely to continue upholding them as well. Why Is Stability So Hard? It requires citizens to support principles of justice for moral reasons, not just for strategic reasons. Rawls addresses how moral development works: Just institutions foster the virtues of fairness, reciprocity, and reasonableness. 3️⃣ Three Features of an Overlapping Consensus 1. Depth What It Means: ○ The consensus must extend to fundamental principles like the equality of citizens and the idea of society as a fair system of cooperation. ○ Citizens with different religious or moral beliefs can still endorse political concepts like "justice as fairness" as deeply meaningful. ○ Example: Both a Kantian and a Christian might believe that "all citizens are free and equal," but for different reasons. 2. Breadth What It Means:  ○ The consensus must cover the full range of essential constitutional principles, not just narrow procedural rules. ○ It includes commitments to fundamental rights (like free speech, liberty of conscience) and principles of distributive justice. ○ Example: Justice as fairness addresses not only legal rights (e.g., voting) but also the socio-economic conditions (like access to education) that allow people to fully participate in society. 3. Specificity What It Means: ○ The consensus must be specific enough to resolve actual political disputes. ○ It focuses on practical, real-world issues (e.g., healthcare access, voting rights) but leaves room for interpretation across different doctrines. ○ Example: Citizens might agree on the right to free speech but disagree on its limits (e.g., hate speech laws). The consensus must be flexible enough to resolve these issues. 4️⃣ The Role of Public Reason What Is Public Reason? Public reason is the language of political justification. It demands that citizens justify political decisions using political values (like liberty, equality, and fairness) that everyone can understand. Citizens must set aside their private beliefs (e.g., religious reasons) when engaging in debates about constitutional essentials and basic justice. Why Public Reason Matters Public reason ensures that all citizens can see laws and policies as legitimate. Without public reason, one group’s religious or philosophical beliefs might dominate politics. Example: If a law banning abortion is justified using religious beliefs, non-religious citizens won’t see it as legitimate. But if the law is justified in terms of "respect for life," it appeals to a broader set of shared political values. 5️⃣ Avoiding Skepticism & Indifference Criticism: Critics say that overlapping consensus implies indifference to truth. If everyone "agrees to disagree" about morality, doesn't that make truth irrelevant? Rawls’s Response: Political liberalism doesn’t deny the truth of religious, moral, or philosophical beliefs. It simply doesn't base justice on any one of them. Citizens can believe that their comprehensive doctrines are true while still supporting the political conception for shared political reasons. Analogy to Religious Toleration: ○ Tolerating religious diversity doesn’t mean you think all religions are true or false. It means you respect others' right to hold those beliefs. 6️⃣ Transition From Constitutional to Overlapping Consensus 1. Stage 1: Constitutional Consensus Citizens agree on constitutional procedures (like free elections) but may have different views on why these procedures are just. Example: People may initially support democracy because it protects their self-interest (like a modus vivendi). 2. Stage 2: Overlapping Consensus Citizens gradually come to see the principles of justice as morally right and binding, not just useful. Example: After decades of living in a democracy, people might develop moral commitments to free speech and voting rights. 7️⃣ How Comprehensive Doctrines Support Liberalism Examples of Doctrines That Support Liberalism Kantianism: Supports justice as fairness because it aligns with Kant's idea of autonomy and respect for persons.  Utilitarianism: Supports it as a pragmatic approximation of the principle of utility. Religious Doctrines: Many religious doctrines (like Christianity) value human dignity and liberty of conscience, which align with liberal principles. No Need for Compromise Citizens don't have to give up their comprehensive doctrines. Instead, they recognize how their doctrines naturally support liberal principles. 🔑 Key Takeaways The overlapping consensus creates moral unity across religious, philosophical, and moral divides. It transitions from a modus vivendi (temporary compromise) to a deep, stable agreement on principles of justice. It achieves stability for the right reasons, as citizens support liberal principles out of moral conviction, not self-interest. The role of public reason is central—it ensures political debate is conducted using shared values rather than private doctrines. Lecture 6: The Idea of Public Reason 1️⃣ Core Concept: Public Reason Defined What is Public Reason? Public reason is the way democratic citizens reason and justify political decisions concerning constitutional essentials and matters of basic justice. It reflects the collective reasoning of citizens as free and equal participants in a democracy. Public reason is public in three ways: ○ Subject: Focused on public issues like basic justice and constitutional essentials (e.g., free speech, voting rights). ○ Agents: Used by citizens, legislators, government officials, and judges. ○ Content: Based on shared, public values (like fairness and equality) and publicly available knowledge (like court precedents, common sense, and scientific reasoning). Why Public Reason Matters It ensures legitimacy: Political power is legitimate only when justified by reasons all reasonable citizens can endorse.  It preserves democracy: By emphasizing fairness and equality, it ensures decisions aren't based on self-interest or sectarian doctrines. Example: If lawmakers propose new voting laws, their justifications should be framed using public values (like fairness and political equality) rather than personal religious or ideological beliefs. 2️⃣ Scope of Public Reason Where Does Public Reason Apply? 1. Constitutional Essentials: ○ Fundamental rights like voting, freedom of religion, and free speech. ○ Example: Debates on voting rights must appeal to shared principles like fairness, not partisan or religious goals. 2. Basic Justice: ○ Core issues like fair opportunities, distribution of wealth, and basic liberties. ○ Example: Discussions about economic inequality must appeal to shared political values like fairness, not personal or religious beliefs. 3. Where It Doesn't Apply: ○ Personal reasoning, private discussions, or civil society (like churches, universities, and social clubs). ○ Example: A priest’s sermon on morality can reflect comprehensive religious doctrine, but that reasoning shouldn't be used to justify laws on marriage equality. 4. Who Must Follow Public Reason? ○ Judges: Must offer constitutional justifications for their rulings, not personal or religious arguments. ○ Legislators: Should justify public policies using shared political values, not personal ideologies. ○ Citizens: When voting on constitutional matters, citizens should act as responsible political agents, basing their decisions on public values, not just personal interest. 3️⃣ The Ideal of Democratic Citizenship What Does It Mean to Be a Democratic Citizen?  Duty of Civility: Citizens must be prepared to justify their political views with public reasons that others can reasonably accept. Why This Matters: Without it, democracy collapses into a battle of self-interest, where people vote purely based on private beliefs or power. Application: ○ When citizens vote, they should be guided by public reason, not their personal religious or philosophical beliefs. ○ Example: A religious citizen may oppose abortion on theological grounds but, under public reason, must frame arguments for abortion laws in terms of shared political values (like liberty, fairness, or equality). 4️⃣ Public Reason vs. Nonpublic Reason What is Nonpublic Reason? Nonpublic reasoning happens outside public political forums. It occurs within civil society—churches, universities, professional groups, or private associations. Characteristics: ○ Rooted in particular doctrines, ideologies, or values unique to the group. ○ Reasoning is only shared by the group’s members, not the general public. ○ Example: A church may require theological reasoning to settle moral issues, but that reasoning is limited to the church community, not the entire public sphere. Public Reason vs. Nonpublic Reason Aspect Public Reason Nonpublic Reason Scope Fundamental justice, basic Specific group issues (religious, rights academic) Participa All citizens, officials, judges Members of churches, schools, or nts unions Basis Shared political values Comprehensive doctrines, moral (justice, fairness) truths Justificati Appeals to public reason and Appeals to theological, academic, or on political values group-specific norms Example: Public: A judge bases a ruling on constitutional rights to equal protection. Nonpublic: A religious leader issues a moral judgment based on divine revelation. 5️⃣ The Content of Public Reason What is the Content of Public Reason? Public reason draws from the shared principles of justice that everyone in a democracy can endorse. Substantive Principles: ○ Equal rights (like free speech, equal suffrage). ○ Fair opportunities (access to education, fair pay). ○ Basic liberties (freedom of religion, freedom of movement). Guidelines of Inquiry: ○ The reasoning process must be open and transparent. ○ Citizens should appeal to shared facts, reason, and public evidence. 6️⃣ Constitutional Essentials and Their Role What Are Constitutional Essentials? Constitutional Essentials = basic framework of the political system and fundamental rights. Includes: ○ Government Structure: Rules governing the legislative, executive, and judicial powers. ○ Basic Rights and Liberties: Voting, free speech, liberty of conscience, and equal treatment. Why They Matter: ○ A democracy's legitimacy rests on agreement over these essential rules. ○ Without shared commitment to essentials (like free speech), democracy cannot function. Example: Debates on gerrymandering involve constitutional essentials because they affect voting rights and the fairness of elections. 7️⃣ The Supreme Court as Exemplar of Public Reason Why is the Supreme Court a Model of Public Reason? The Supreme Court sets the standard for how public reason should be applied in society. Judges' Role: ○ They justify their rulings using constitutional values (like equality or due process) and legal precedents. ○ They cannot justify rulings based on personal, religious, or ideological reasons. Example Case Study: Brown v. Board of Education (1954) ○ The Court ruled that racial segregation in schools violated equal protection. ○ Justification: The decision was based on the constitutional principle of equality, not on religious or moral doctrines. 8️⃣ The Limits of Public Reason Exclusive vs. Inclusive Public Reason Exclusive View: ○ Only reasons based on political values (justice, fairness) count as public reasons. ○ Criticism: It’s too restrictive and alienates religious or cultural perspectives. Inclusive View: ○ Comprehensive doctrines (like religious beliefs) can be included if they are translated into public reason. ○ Example: Martin Luther King Jr. used religious rhetoric (Christian love) in his civil rights advocacy, but he connected it to public values like equality and justice. Examples of Inclusive Limits Situation Exclusive View Inclusive View Civil No religious arguments MLK's "I Have a Dream" blends religious Rights allowed in public policy ideals with political values like equality (1960s) Abortion Arguments should be Religious views on life can be presented Debate framed around bodily if connected to shared political values autonomy (e.g., human dignity) 9️⃣ Key Takeaways Public Reason Public reason defines the shared principles for constitutional essentials and basic justice. It excludes personal, religious, and ideological justifications in public political forums. The Role of Public Reason Ensures that political power is legitimate, as decisions are justified by shared public reasons. Judges, lawmakers, and citizens must respect it when voting, making laws, or issuing rulings. Public vs. Nonpublic Reason Public reason is for constitutional issues. Nonpublic reason is for civil society (churches, universities, social groups). The Supreme Court Acts as an exemplar of public reason by justifying decisions on the basis of political values and constitutional principles.