Rawls and Schmitt are often discussed in the literature as if their conceptions of the political had nothing in common, or even referred to entirely different phenomena. In this essay, I show how these conceptions share a common space of reasons, traceable back to the idea of public reason and its development since the Middle Ages. By analysing the idea of public reason in Rawls and in Schmitt, as well as its relation to their theories of political representation, I show in what way Schmitt's concept of the political cannot be divorced from an idea of justice, while, conversely, Rawls' conception of justice cannot be divorced from a theory of the political. In that way this paper thematizes the internal relation that each theory establishes between justice and power, deliberation and decision, and consensus and disagreement.
For some examples of such critiques cf. Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993); Jeremy Waldron, Law and Disagreement (New York: Oxford University Press , 1999); Jeremy Valentine and Benjamin Arditi, Polemicization: The Contingency of the Commonplace (New York: New York University Press, 1999); William Connolly, Why I Am Not a Secularist (Minneapolis: University of Minnesota Press, 2000) and Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, 2004), 538-50.
2.
Cf. Chantal Mouffe, “Deliberative Democracy or Agonistic Pluralism” Social Research66, 3 (1999):745-58, and Chantal Mouffe, The Return of the Political (London: Verso, 2006).
3.
On how matters stand between Rawls and Schmitt viewed from a Rawlsian perspective, cf. Charles Larmore, The Morals of Modernity ( Cambridge: Cambridge University Press, 1996). For a brief but elegant presentation of the received reading of the reasonable in Rawls, and for the kind of criticism that defenders of deliberative democracy address to Rawls's idea of public reason, cf. Rainer Forst, “ The Rule of Reasons. Three Models of Deliberative Democracy,” Ratio Juris14, 4 (2001):345-78.
4.
Carl Schmitt , Der Begriff des Politischen ( Berlin: Duncker & Humblot, 2002 ), 20 and John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 374. For a detailed analysis of the senses in which Rawls distinguishes “the political” from “politics,” and for a critical discussion of the readings of Rawls as anti-political thinker, cf. Roberto Alejandro , “ What is Political About Rawls's Political Liberalism?” The Journal of Politics58, 1 (1996):1-24.
5.
On the idea of contested concepts, cf. William Connolly, The Terms of Political Discourse (Princeton: Princeton University Press, 1993).
6.
On Schmitt's relation to liberalism, with all of its ambiguities, cf. John McCormick, Carl Schmitt's Critique of Liberalism (Cambridge : Cambridge University Press, 1997 ); Renato Cristi , Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy ( Cardiff: University of Wales Press, 1998); and Carlo Galli, “ Carl Schmitt's Antiliberalism: Its Theoretical and Historical Sources and Its Philosophical and Political Meaning ,” Cardozo Law Review21 (1999):1597-1617.
7.
Rawls, Political Liberalism , 13.
8.
Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996), 30.
9.
Rawls, Political Liberalism , 5, 35.
10.
Cf. Raymond Geuss, History and Illusion in Politics (Cambridge: Cambridge University Press, 2001) for an argument on the importance of genealogy when one does the analysis of political concepts.
11.
For recent treatments of Schmitt's jurisprudence, but contextualized mostly in reference to his immediate predecessors or contemporaries, cf. David Dyzenhaus, Legality and Legitimacy (New York: Oxford University Press, 1997); William E. Scheuerman, Carl Schmitt: The End of Law (Lanham, MD: Rowman and Littlefield, 1999); Jeffrey Seitzer, Comparative History and Legal Theory: Carl Schmitt in the First German Democracy (London: Greenwood Press, 2001); and Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann (Oxford: Oxford University Press, 2003). On Schmitt's reception in the English-speaking world, cf. Peter Caldwell , “Controversies over Carl Schmitt: A Review of Recent Literature,” The Journal of Modern History77 (2005):357-87.
12.
Cf. Brian Barry , Culture and Equality (Cambridge : Harvard University Press, 2001 ), 331 n.27 who dismisses the turn to the political in the later Rawls: “Rawls has by now abandoned most of the ideas that made A Theory of Justice worthwhile. I have no interest in defending anything Rawls has written since about 1975, including his subsequent interpretations of A Theory of Justice or his revisions of its text. Rawls's current position, embodied in The Law of Peoples, amounts to a rather muddled version of Michael Walzer's anti-Enlightenment particularism.” But even Larmore, in his presentation and defence of “political liberalism,” hardly touches on the idea of the political in Rawls. He chooses to present political liberalism starting from the idea of neutrality; giving to the idea of neutrality a “moral” rather than a “political” meaning (Larmore, The Morals of Modernity, 125-32). For a view defending the importance and novelty of Political Liberalism in comparison to A Theory of Justice, cf. Burton Dreben, “ On Rawls and Political Liberalism,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), who argues that Rawls thereby intended to address the question of whether “the notion of a constitutional liberal democracy is internally consistent” ( Dreben, “On Rawls and Political Liberalism ,” 319, 322).
13.
Cf. Bernard Manin, “On Legitimacy and Political Deliberation ,” Political Theory15, 3 (1987):338-68, for an example of applying in an abstract way the distinction between deliberation and decision to Rawls. Paradoxically, Manin ends up associating Rawls both to Rousseau and to decisionism. Cf. Bonnie Honig, “Between Decision and Deliberation: Political Paradox in Democratic Theory,” American Political Science Review101, 1 (2007):1-18 for another return to Rousseau to displace altogether the opposition between decision and deliberation.
14.
Brian Barry , “ John Rawls and the Search for Stability ,” Ethics105 ( 1995):874-915.
15.
Ibid, 883-85.
16.
Ibid, 890.
17.
Rawls, Political Liberalism , xvii-xx.
18.
Ibid, 257-68.
19.
Cf. John Rawls , A Theory of Justice (Cambridge : Harvard University Press, 1999 ), 24, where Rawls understands his project as a critique of utilitarian thought and its erasure of the point of view of the other: utilitarianism “adopts for society as a whole the principle of rational choice for one man. . . . Utilitarianism does not take seriously the distinction between persons.” For the priority of the other in Schmitt, see the definition of the political as “the distinction of friend and enemy denotes the utmost degree of intensity of a union or a separation, of an association or dissociation” ( Schmitt, The Concept of the Political, 26). Cf. Carl Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947 (Milan: Adelphi, 1993), 92 on the Hegelian theme of “Der Feind ist unsre eigene Frage als Gestalt,” commented upon at length by Jacques Derrida, Politics of Friendship ( London: Verso, 1997) and Heinrich Meier, Die Lehre Carl Schmitts: Vier Kapitel zur Unterscheidung politischer Theologie und politischer Philosophie (Stuttgart: J.B. Metzler, 1994).
20.
Cf. Quentin Skinner, Visions of Politics. Volume 3: Hobbes and Civil Science (Cambridge: Cambridge University Press, 2002), 119, 134-40, for a discussion of the problem of application in Hobbes and for Hobbes's reliance on the idea of public reason to resolve it.
21.
For another discussion of this crucial point, cf. Jody S. Kraus, “Political Liberalism and Truth,” Legal Theory5 (1999):45-73.
22.
Cf. Schmitt, The Concept of the Political, 53; John Rawls, Collected Papers ( Cambridge: Harvard University Press, 1999), 329; Rawls, Political Liberalism , 54-59. What they understand under pluralism, and the conditions that make it necessary for modern democracies to be pluralist, is of course different in both authors. Schmitt has no equivalent theory to Rawls's “burdens of judgment” that accounts for the fact of “reasonable” pluralism.
23.
Cf. Rawls, Collected Papers, 411, 425; Schmitt , The Concept of the Political, 43.
24.
Both Rawls and Schmitt address the pluralists of their time (primarily Isaiah Berlin for Rawls, and Harold Laski for Schmitt). Cf. William E. Connolly, Pluralism (Durham: Duke University Press , 2005) for an updated discussion of the conflict between pluralism and sovereignty from a pluralistic perspective that is equally at odds with Rawls and with Schmitt.
25.
Cf. Rawls, Collected Papers, 427-29 and Rawls, Political Liberalism, 392. I discuss in what sense one can speak of “right reasons” in Schmitt below.
26.
On the public nature of such ultimate political judgments, cf. Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge : MIT Press, 2001), 56; Rawls, Collected Papers , 324-25.
27.
On the people, cf. Schmitt, The Crisis of ParliamentaryDemocracy, 16; Schmitt, The Concept of the Political, 19; and Rawls, Political Liberalism, 68, where “political power . . . is the power of the public, that is, the power of free and equal citizens as a collective body.”
28.
Cf. Rawls, Political Liberalism, 29 n. 31; Rawls, Collected Papers, 394-95, 434-37; Schmitt , The Crisis of Parliamentary Democracy, 42-43, 64-68; Carl Schmitt, Der Leviathan in der Staatslehre des Thomas Hobbes (Stuttgart: Klett-Cotta , 1982), 66-68, 82.
29.
Rawls says that the condition of publicity essential to the idea of public reason means that “a well-ordered society does not require an ideology in order to achieve stability, understanding `ideology' (in Marx's sense) as some form of false consciousness or delusory scheme of public benefits” (Rawls, Collected Papers, 326).
30.
Cf. Rawls, Political Liberalism, 37; Dreben, “On Rawls and Political Liberalism,” 319; Kraus, “Political Liberalism and Truth ,” 48-49.
31.
Cf. Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947, 59. In Rawls the equivalent rejection of a metaphysical foundation of justice is expressed in various ways. For instance, when he claims that “the absence of commitment to these ideals [of autonomy and individuality], and indeed to any particular comprehensive ideal, is essential to liberalism as a political doctrine” (Rawls, Collected Papers, 409). But also: “Those who reject constitutional democracy with its criterion of reciprocity will of course reject the very idea of public reason. For them the political relation may be that of friend or foe, to those of a particular religious or secular community or those who are not; or it may be a relentless struggle to win the world for the whole truth. Political liberalism does not engage those who think this way. The zeal to embody the whole truth in politics is incompatible with an idea of public reason that belongs with democratic citizenship” (Rawls, Collected Papers, 574). As I shall discuss below, Schmitt would not have disagreed with this citation, to the contrary. This is, in fact, the meaning of the motto that he appropriates in Ex Captivitate Salus: silete, theologi, in munere alieno! (Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947, 72). The “theologians” who have to keep silent in the domain of public right or political justice are, to employ Rawls's words, representative of those who “struggle to win the world for the whole truth.”
32.
Cf. Rawls, Collected Papers, 574, where he says that “the political relation” is contained in the idea of public reason. In turn, the idea of public reason is internally related to the idea of legitimacy (Rawls, Political Liberalism, 217ff.).
33.
Cf. Gaines Post , Studies in Medieval Legal Thought: Public Law and the State 1100-1322 (Princeton: Princeton University Press, 1964), 112. For the early history of the idea of public reason I shall rely on the results of two decades of research into late medieval political thought conducted by Gaines Post during the 1940s and 1950s and republished in book form in the early 1960s. Due to lack of space, I cannot enter into the details of the heated debate, which in many ways climaxes during those decades, concerning the relation between political theory and jurisprudence in medieval thought and its significance for modernity. In the Anglo-American world, this debate begins with the reception of Gierke's work starting with Figgis, through McIlwain, Kantorowicz, and Post, and reaching all the way to the recent work of Tierney, Pennington, Oakley, and Skinner. In my opinion, Post's results seem not to have been refuted by subsequent historical research, although one has to admit that his work has received minimal attention on the part of political theorists, apart from specialised literature, as exemplified in Donald E. Queller and Joseph R. Strayer (ed.), Post Scripta. Essays on Medieval Law and the Emergence of the European State in Honor of Gaines Post (Rome: 1972). The entry on “Law, legislation and government, 1150-1300” by Pennington in J. H. Burns (ed.), The Cambridge History of Medieval Political Thoughtc.350-c.1450 (Cambridge: Cambridge University Press, 1988), 424-53 still makes ample use of Post's discoveries. The historiography of the modern concept of the state, after Quentin Skinner's seminal The Foundations of Modern Political Thought, took a different course than the one traced by Post (and Kantorowicz) in their times. On the French literature concerning the origins of the modern idea of the state and its medieval roots, cf. Michel Senellart, Les arts de gouverner (Paris: Seuil, 1998); on the Spanish literature, cf. Bartolomé Clavero, Razon de estado, razon de individuo, razon de historia (Madrid: Centro de Estudios Constitucionales, 1991); on the Italian literature, cf. Paolo Grossi, L'ordine giuridico medievale ( Bari: Laterza, 2004).
34.
Post, 241-309.
35.
Ibid, 116.
36.
Ibid, 91-240.
37.
Ibid, 113.
38.
“In the legal theory, however, the king and his court and council had the power of decision; and if they judged that their case of national defence was proved, they could decide against the pleas of the representatives. To this final decision the representatives must consent in accordance with their full powers” (ibid., 157).
39.
“There can be no due process unless courts can compel consent to their judicial power” (ibid., 123).
40.
Ibid, 453.
41.
Ibid, 290-300.
42.
Status in medieval political theory does not have the same meaning as the modern concept of the “state,” as Skinner correctly points out (Quentin Skinner , The Foundations of Modern Political Thought. Vol. II. The Age of Reformation [Cambridge: Cambridge University Press, 1978], 352-53). On the other hand, Post never claims that it does. His point, as I understand it, is more modestly to show how the late medieval idea according to which the status of the king is inherently superior with respect to other parts of the society played a crucial role in the development, during the Renaissance, of the modern concept of the state. For a useful review of the meanings of the term status and rei publicae status since Cicero, cf. Alejandro Guzmán Brito, “ El Vocavulario Histórico para la Idea de Constitución Política,” Rev. estud. hist. jurid. [online] 2002, n.24 [accessed 28 Sept. 2007], 267-313, http://www.scielo.cl/scielo.php?script:sci_arttext&pid=s0716-5455200024000009&lng=es&num=iso . Guzmán suggests that status may carry both the sense of “stability” as of “government.”
43.
Some of the jurists working for the new princes, notably the King of Sicily Frederick II, did argue for the permanent character of the state of exception (Post, 308). However, the norm seems to have been closer to the position of Aquinas, who does refer to the state of necessity and the princely capacity to “change” the law in such cases (Summa Theologiae 1a2ae Treatise on Law, q. 96, a.5), but, in general, maintains that law is the ordering of a people (constitutio populi), and the institution of law belongs to the people as a whole, or to whomever represents the people as a whole (ibid., q.90, a.3).
44.
As first argued in Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (Cambridge: MIT Press, 1988). Here my interpretation coincides with the thesis argued in John McCormick, “Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitt's Legality and Legitimacy,” in Carl Schmitt.Legality and Legitimacy ( Durham, NC: Duke University Press, 2004) and in Giorgio Agamben, État d'exception ( Paris: Seuil, 2003), who argue that for Schmitt the state of exception is necessary.
45.
Schmitt, The Concept of the Political, 46.
46.
Ibid, 48.
47.
Carl Schmitt , Legality and Legitimacy ( Durham, NC: Duke University Press, 2004), 20-22.
48.
For the positive relation between justice and reason, in reference to medieval jurisprudence, cf. ibid., 5-7, and Carl Schmitt, Roemischer Katholizismus und politische Form (Stuttgart: Klett-Cotta, 1984), 23. For the negative relation between justice and reason, in reference to modern, liberal jurisprudence, cf. Schmitt, The Crisis of Parliamentary Democracy , 42-43.
49.
A point excellently captured by Hugo Ball's essay on “Carl Schmitts Politische Theologie” now reprinted in Jacob Taubes (ed.), Religionstheorie und Politische Theologie. Band 1: Der Fuerst dieser Welt. Carl Schmitt und die Folgen ( Muenchen: Wilhelm Fink Verlag, 1983 ), 106-8.
50.
Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 31-33; Schmitt, The Concept of the Political, 38; Schmitt , The Crisis of Parliamentary Democracy, 68.
51.
Cf. Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen ( Berlin: Duncker & Humblot, 2004 ), where the problem of application is the central theme. For an extended treatment of the problem of application in Schmitt, cf. Carlo Galli, Genealogia della politica. Carl Schmitt e la crisi del pensiero politico moderno ( Bologna: Il Mulino, 1996), 313-459.
52.
On Schmitt's ambivalent relation to Hegel and Hegelianism, and in general for his awareness of the crisis of dialectical thought and its consequences in the formation of his political and juridical thought, see, apart from ibid., 3-175, also the important works by Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2002); and Jean-Francois Kervégan, Hegel, Carl Schmitt: la politique entre spéculation et positivité ( Paris : PUF, 2005).
53.
Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 13, 31; and Agamben, État d'exception, 68-70.
54.
Schmitt, Legality and Legitimacy , 18.
55.
Ibid, 69.
56.
Ibid.
57.
On the theme of speed of legislation and its relation to Schmitt's critique of parliamentarism, cf. William E. Scheuerman, Liberal Democracy and the Social Acceleration of Time (Baltimore: The Johns Hopkins University Press, 2004).
58.
Schmitt, Legality and Legitimacy , 41-83.
59.
Ibid., 3-13. “Denn jede Ordnung ist eine Rechtsordnung und jeder Staat ein Rechtsstaat” (Schmitt, Roemischer Katholizismus und politische Form, 41). This is not to deny, of course, that the Schmittian conception of a Rechtsstaat is very different from its conception in the theories of legal positivism from Laband to Kelsen; just as it is different from the idea of the republican-Kantian Rechtsstaat; or from the idea of a Rechtsstaat in Gierke. Part of the problem is the intrinsic and irreducible polysemy of the word Recht, which can mean justice (jus) or law (lex) or legal order or legal rights (Rechte). For a discussion of Schmitt in the context of the history of the idea of Rechtsstaat, cf. Ernst-Wolfgang Böckenförde, Recht, Staat, Freiheit (Frankfurt: Suhrkamp, 2006), 143-70 and 344-66.
60.
Schmitt, The Concept of the Political, 45-46.
61.
Schmitt, Legality and Legitimacy, 69; Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 5-7.
62.
Cf. Schmitt, Legality and Legitimacy, 6, where he speaks of the “deciding will” that judges the applicability of right or justice: “the normative fiction of a closed system of legality emerges in a striking and undeniable opposition to the legitimacy of an instance of will that is actually present and in conformity with right.”
63.
Ibid, 4, 71; Schmitt , Political Theology. Four Chapters on the Concept of Sovereignty, 31-33.
64.
Schmitt, The Concept of the Political, 19.
65.
Schmitt, Legality and Legitimacy , 9; Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 12-13.
66.
Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 33.
67.
For an overview of these ideas of legitimacy and order in their historical context, cf. David Bates, “Political Unity and the Spirit of the Law: Juridical Concepts of the State in the Late Third Republic,” French Historical Studies28, 1 (2005):69-101.
68.
Schmitt, The Concept of the Political, 52-53.
69.
Ibid, 46. In a major departure from medieval legal theory, Schmitt, citing Grotius, rejects the connection between the application of jus belli and the “metaphysical” idea of a just war (Schmitt, The Concept of the Political, 49).
70.
Schmitt, The Concept of the Political, 49.
71.
Ibid.
72.
“Each participant is in a position to judge whether the adversary intends to negate whether his opponent's way of life and therefore must be repulsed or fought in order to preserve one's own form of existence” (ibid., 27).
73.
Schmitt, The Crisis of Parliamentary Democracy, 9ff.
74.
Ibid, 26-28.
75.
Schmitt, Legality and Legitimacy , 93.
76.
Carl Schmitt , Die Diktatur (Berlin: Duncker & Humblot, 1994); Schmitt, The Crisis of Parliamentary Democracy .
77.
Schmitt, Die Diktatur, 142; Carl Schmitt, Verfassungslehre (Muenchen: Duncker & Humblot, 1928), 77-87. On the use and misuse of “constituent power” in Schmitt cf. Renato Cristi, “The Metaphysics of Constituent Power: Carl Schmitt and the Genesis of Chile's 1980 Constitution,” Cardozo Law Review21 ( 2000):1749-75. For a defence of Schmitt as theorist of democracy, cf. Andreas Kalyvas, “Carl Schmitt and the three moments of democracy,” Cardozo Law Review21 (2000):1525-65.
78.
“Diese formale Eigenart des römischen Katholizismus beruht auf der strengen Durchführung des Prinzips der Repräsentation” (Schmitt, Roemischer Katholizismus und politische Form, 14). One should note that Post, among others, dates the application to public law of Roman private law principles to the time of Innocent III, when Roman Catholicism went through a particularly acute “political” phase. For reasons of space, I cannot here discuss the complex history of the relation between Roman Catholicism and what Schmitt calls “political form,” nor the relation between Schmitt's interpretation of the Catholic principle of representation and the conciliar theories of representation that many have seen fit, since Figgis, to identify with the origins of modern parliamentarism.
79.
On the defence of the state's might in political Catholicism, cf. Schmitt, Roemischer Katholizismus und politische Form, 53-56, in particular his adoption of the standpoint of the “Grand Inquisitor.” On this reading of Dostoyevsky in Schmitt, cf. Théodore Palélogue, Sous l'oeil du Grand Inquisiteur. Carl Schmitt et l'héritage de la théologie politique (Paris: Les Éditions du Cerf, 2004).
80.
Schmitt, Roemischer Katholizismus und politische Form, 43.
81.
Ibid, 36.
82.
This is why Schmitt says that the political form of Roman Catholicism represents something “more than worldly jurisprudence, not only the idea of justice, but also the Person of Christ” (ibid., 50). Cf. Ernst H. Kantorowicz, The King's Two Bodies. A Study in Medieval Political Theology ( Princeton: Princeton University Press , 1997), 232-72; and Post, Studies in Medieval Legal Thought: Public Law and the State 1100-1322, 434-53, on the motif pro patria mori. Both coincide on the point that this motif originates with late medieval doctrines found in Roman Catholicism. The formula first appears in the context of the idea of a “just war” when “the supreme necessity of defending the fatherland . . . makes lawful many things that are otherwise unlawful” (Post, Studies in Medieval Legal Thought: Public Law and the State 1100-1322, 437). On the Catholic principle of representation in Schmitt, cf. now Raphael Gross, Carl Schmitt und die Juden ( Frankfurt: Suhrkamp , 2005); Samuel Weber, Targets of Opportunity. On the Militarization of Thinking ( New York: Fordham University Press, 2005); and Miguel Vatter, “Strauss and Schmitt as Readers of Hobbes and Spinoza. On the Relation between Liberalism and Political Theology ,” The New Centennial Review3 (2004): 161-214.
83.
Rawls, Political Liberalism , 50.
84.
“In a democratic society, public reason is the reason of equal citizens who, as a collective body, exercise final and coercive power over one another in enacting laws and in amending their constitution” (ibid., 214). For a critical analysis of the theory of recognition presupposed by Rawls's idea of the original position, cf. now Christian Lazzeri, “Théorie de la justice et sentiments moraux,” in L'action en philosophie contemporaine, ed. Stéphane Haber (Paris: Ellipses, 2004, 208-234).
85.
Rawls, Political Liberalism , 233-35.
86.
Ibid., 49-50. On public reason as present in the original position, cf. Charles Larmore, “Public Reason,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003).
87.
Cf. Rawls, Collected Papers, 316-17 on full autonomy versus rational autonomy; and Rawls, Political Liberalism , 77ff.
88.
Cf. Rawls, Collected Papers, 330-31 on citizens “as self-originating sources of valid claims.” For obvious reasons of space, I cannot here argue why this idea of freedom as sui juris corresponds to the republican ideal of freedom as absence of domination, rather than to the liberal ideal of freedom as non-interference. For the latest formulation of this debate, and a discussion of republican freedom as sui juris, cf. Quentin Skinner, “A Third Concept of Liberty,” Proceedings of the British Academy117 (2001):237-68.
89.
Hence the importance of the condition of publicity for resolving the problem of stability: “citizens affirm their existing institutions in part because they reasonably believe them to satisfy their public and effective conception of justice. Now the notion of publicity has three levels. . . . [The first. . .] means that society is effectively regulated by public principles of justice; that is, everyone accepts and knows that others likewise accept the same principles, and this knowledge in turn is publicly recognized” (Rawls, Collected Papers, 324).
90.
Rawls, Political Liberalism , 5-6.
91.
“[T]he scheme of basic liberties is not drawn up so as to maximize anything, and, in particular, not the development and exercise of moral powers. Rather, these liberties and their priority are to guarantee equally for all citizens the social conditions essential for the adequate development and the full and informed exercise of these powers in what I shall call `the two fundamental cases'” (ibid., 332). These cases have to do with the application of the principles of justice to the basic structure of society and to the application of the principles of deliberative reason to guide conduct (Cf. Rawls, Collected Papers, 320).
92.
Rawls, Collected Papers , 333.
93.
Rawls, Political Liberalism , 16-17, 40-43.
94.
Ibid, 201.
95.
Ibid, viii, 203. On the status of citizens in Rawls, see also Joshua Cohen, “ For a Democratic Society,” in The Cambridge Companion to Rawls, ed. Samuel Freeman ( Cambridge: Cambridge University Press, 2003), 108.
96.
Cf. John Rawls , A Theory of Justice (Cambridge : Harvard University Press, 1999 ), 176, for the intention to “bypass the dispute about the meaning of liberty.” Perhaps because of this intention, that book contains an ambiguity with respect to whether Rawls's conception of liberty is exclusively that of liberty as non-interference. In any case, by Political Liberalism his conception of liberty is no longer simply liberal. I hope to return to this complicated question at greater length in another article. My interpretation is compatible with the more republican reading of Rawls that has lately been suggested by Philip Pettit, “Rawls's political ontology,” Politics, Philosophy and Economics4, 2 ( 2005):157-74.
97.
Rawls, Political Liberalism , 231-39.
98.
Ibid, 217ff.
99.
For another discussion of Rawls's idea of public reason in relation to Hobbes, cf. Duncan Ivison, “The Secret History of Public Reason: Hobbes to Rawls,” History of Political Thought18, 1 ( 1997):125-47. But Rawls distinguishes his idea of the political from the kind of neutrality proposed by politique thinkers, where justice is oriented towards finding a modus vivendi between opposed religious sects ( Rawls, Collected Papers, 432-34, 458-61), as well as from the neutrality achieved in the manner of Hobbes (ibid., 422).
100.
Rawls, Political Liberalism , 347-56.
101.
“Thus constitutional democracy is dualist: it distinguishes constituent power from ordinary power as well as the higher law of the people from the ordinary law of legislative bodies. Parliamentary supremacy is rejected. A supreme court fits into this idea of dualist constitutional democracy as one of the institutional devices to protect the higher law” ( Rawls, Political Liberalism , 233). “The constitution is not what the Court says it is. Rather, it is what the people acting constitutionally through the other branches eventually allow the Court to say it is” (ibid., 237). For an argument rejecting the idea that Rawls defends a “judicial guardian-ship over the people,” cf. Cohen, “For a Democratic Society,” 115-20.
102.
Cf. Immanuel Kant, “Toward Perpetual Peace” in Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 324-25, where Kant distinguishes the people's fullness of power (Machtvollkommenheit), which, in a republic, must be represented by the government, from the sovereignty of the state (oberste Staatsgewalt).
103.
Cf. Immanuel Kant, Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1991), 55: “But by the public use of one's own reason I mean that use which anyone may make of it as a man of learning addressing the entire reading public. What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.”
104.
On Kant's subversion of the traditional idea of public reason, cf. John Christian Laursen, “ The Subversive Kant. The Vocabulary of `Public' and `Publicity,'” Political Theory14, 4 (1986):584-603, and now Ciaran Cronin, “Kant's Politics of Enlightenment,” Journal of the History of Philosophy41, 1 (2003):51-80.
105.
Rawls, Political Liberalism, 428-32.
106.
Ibid, 402-6.
107.
Ibid, 28.
108.
On citizens as “sovereign judges” in Rawls, cf. Cohen, “For a Democratic Society,” 111.
109.
Rawls, Political Liberalism, 217.
110.
Cf. Jürgen Habermas, “Reconciliation Through the Public Use of Reason: Remarks on John Rawls's Political Liberalism,” Journal of Philosophy92 ( 1995):109-31. For Rawls's response, cf. Rawls, Political Liberalism, 372-434; on their exchange, cf. Forst, “The Rule of Reasons. Three Models of Deliberative Democracy,” 369-75.
111.
For the state of the debate as it concerns Rawls and Habermas in particular, cf. Cristina Lafont , “Religion in the Public Sphere. Remarks on Habermas's Conception of Post-Secular Societies,” Constellations14, 2 (2007): 236-56.
112.
Cf.Jacques Derrida, Voyous. Deux essais sur la raison (Paris: Galilée, 2003).
113.
“[R]easonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons—and not reasons given solely by comprehensive doctrines—are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support” (Rawls , Collected Papers, 591).
114.
Cf. Rawls, Political Liberalism, 10, 154 for the principle of toleration. For a generalization of Rawls's use of the principle of toleration to philosophy, cf. now Rainer Forst, Toleranz im Konflikt (Frankfurt: Suhrkamp, 2003).
115.
Cf. Onora O'Neill , “The Public Use of Reason” Political Theory14, 4 (1986):523-51, who does not distinguish between a public use of reason according to reflective, rather than determinant, judgment and conflates both uses. O'Neill seems to understand the practice of critique as having the sole goal of securing the “authority of reason” over against other sources of authority. Arendt's attempt to work something like an idea of public reason based on reflective judgment remains incomplete and fragmentary, tributary to a problematic reading of Kant's Third Critique. Other recent attempts to rephrase Rawlsian intuitions in the vocabulary of Kant's theory of judgment are found in Seyla Benhabib, “Judgment and the Moral Foundation of Politics in Arendt's Thought,” Political Theory16,1 (1988): 29-51 and Alessandro Ferrara, Justice and Judgment (London: Sage, 1999).
116.
I refer here to the vocabulary used by Jacques Rancière, La Mésentente. Politique et Philosophie (Paris: Galilée, 1995) in an attempt to work out the political implications of Kantian reflective judgment.
