Law and legitimacy: Toward a Rawlsian solution
John Rawls developed the most compelling normative account of liberal constitutional democracy of the 20th century. Today, however, prominent political theorists such as Jeremy Waldron and Ian Shapiro are calling for post-Rawlsian, “power friendly” approaches to democratic theory. Power friendly approaches surrender a significant historical strain of liberal democratic thought, often associated with Rawls—the hope for a politics of shared reason. Such “rationalist expectations” must be abandoned, says Shapiro. Power friendly theorists hold that disagreements over justice, and other issues, are so deep that political philosophers cannot say what justice requires even under ideal conditions. Democratic citizens can only constitute themselves as a democratic body politic through real time political processes. But this means that, for nearly every constitutional and legislative issue, the will of some citizens will govern all. There is no hope for a politics of shared reason; what we have is a struggle between reasons, where one side wins and the other side loses. Power friendly theorists seek to legitimate this unavoidable exercise of force by describing pragmatic, prudential or normative reasons for accepting such democratic outcomes as authoritative. Democratic institutions that produce a stable modus vivendi, in which the spiritual and material needs of citizens are at least minimally satisfied, should be regarded as authoritative on those (or similar) grounds. For instance, Shapiro argues that democracy deserves our allegiance because it is the best available way of “managing power relations among people who disagree about the nature of the common good,” but who must nevertheless live together. Of course, the loser is never happy about losing these struggles, but she has sound reason to accept the outcomes anyway, and she lives to fight another day.
Power friendly theorists have a point. But what they do not realize is that Rawls conceded this point around 1980, and then proposed his own power friendly account of democratic law and political authority. Rawls’s account centers on his liberal principle of legitimacy. What is significant about his approach is its faithfulness to the spirit, if not the fact, of the liberal ideal of shared reason. That is, while Rawls is not the shared reason rationalist that many accuse him of being, he does not surrender as much of the liberal project as the power friendly theorists do. Rawls’s view represents a third option, which sits between the rationalist and the power friendly poles. Unfortunately, few have understood his account, because few have read all of his work, or considered his intellectual debts. I construct a Rawlsian power friendly view of law and legitimacy that is philosophically rigorous, faithful to Rawls’s texts, and grounded in a thorough understanding of his intellectual debts, in particular to H. L. A. Hart and Philip Soper. In the end, I argue that the Rawlsian power friendly view is philosophically superior to both the rationalist view (wrongly attributed to Rawls) and the newer power friendly views of Waldron and Shapiro.
0615: Political science