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Coercion & Public Justification


Colin Bird
Woodrow Wilson Department of Politics, University of Virginia
colinbird@virginia.edu

Theories of public reason recognize at least three categories of complaint that citizens might
make against some political action P. One might object
I. that no valid or sound argument for P has been offered, in which case one suggests P
is unjustified;
II. that the officially canvassed reasons for P are not the real reasons for the decision to
adopt P, in which case one alleges insincerity in the process by which it was reached;
III. that the arguments involved conflict with the reasonably held convictions of some
citizens, in which case one denies that the states adoption of P has been given a public
justification.
Complaints of all three types are bound to be controversial in practice, but only the third sort of
complaint seems controversial at the level of principle. Advocates and critics of ideals of public
reason can agree that demonstrably unjustified (type-I) or insincere (type-II)1 public action is in
principle, and special cases aside, illegitimate. They part company, however, over the special
role such ideals give to complaints of type-III, at once the most contentious, and distinctive,
feature of recent theories of public reason.
Suppose that the official justification for P, while neither demonstrably unsound nor
insincerely offered, conflicts with some citizens reasonably held ethical convictions. Why
should the presence of this conflict, even if substantiated to everyones satisfaction, show that in
pursuing P regardless a government acts illegitimately? Very few, if any, justified constitutional
principles or statutes actually in force today could survive this test. Nor is it clear exactly why
citizens should withhold support for policies they (quite reasonably) deem to be well-justified
just because the arguments involved conflict with beliefs that other citizens in fact hold. Yet
theorists of public reason maintain that, even in cases in which all relevant complaints of
types-I and II have been successfully rebutted, outstanding complaints of type-III can be
sufficient to invalidate P (Rawls 1993, 212-55; Rawls 2000, 229-80; Gaus 1996, 130-59; Gaus 2003,
205ff.; Larmore 1987, 40-69; Larmore 1996). Legitimate public action, they say, must not only be
given a plausible justification. That justification must also be reasonable from every point of
view (DAgostino 1996, 30), and thereby economize on moral disagreement (Gutmann and
Thompson 1996, 43; Gutmann and Thompson 2004, 134, 182-3). Why?

Some dispute the sincerity requirement (Markovits 2006, Reidy 2000, Gaus 2009). For discussion see
MacGilvray 2004 and Schwartzman 2011.
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While this question still lacks an adequate answer, proponents and critics often2 agree in
suggesting where we should look to find one. According to this suggestion, the public
justification requirement reflects the special burden that the systematically coercive character of
public action places on fair terms of political association. In proposing legislation or political
principles in a democratic setting, some citizens are proposing to coerce others. Knowing this,
and recognizing the vast diversity of ethical and religious convictions inevitable in free
societies, fair-minded citizens must take care to defend their proposals on terms that no one
who faces resulting coercion could reasonably reject. Satisfying this condition removes, or at
least mitigates, the element of domination that their coercion would otherwise involve, because
to respect others requires that one refrain from coercing them unless one can provide reasons
that are accessible to them. (Gaus 2008, 21) Justifications that everyone can accept from
within their system of personal convictions allow those coerced to see the coercion involved as
partly self-imposed. Unless citizens supply such a justification, the coercion entailed by the
policies and principles they advocate is illegitimate, a case of one will dominating another by
force alone. So conceived, the essential function performed by the public justification
requirement is a coercion-justifying one: a society that ignores substantiated type-III complaints
must be, for that reason alone, illegitimately coercing its citizens at least some of the time.
This paper rejects this line of argument in favor of an alternative, better explanation for the
importance theories of public reason attach to type-III complaints. I stress that my argument
neither disputes that political power is normally coercive, nor that justified public action must
overcome a powerful presumption against coercing private individuals. It is the link between
these claims that I question. I deny that the need to justify coercion can motivate the public
justification requirement. The traditional demand for a sound justification for the imposition of
coercion does not entail the recently fashionable demand for a justification that is also public.
The latter demand, I maintain, has an independent source in an ideal of democratic coauthorship.
Discussion unfolds in three sections: section I substantiates the claim that proponents of
public reason frequently implicate the coercive character of political action in motivating the
public justification requirement. Section II identifies three fatal problems infecting the resulting
accounts of public justification. Section III outlines an alternative account, which provides a
rationale for the public justification requirement that is independent of the need to justify
coercion, while avoiding the problems noted in section II. I emphasize that I dont write as an
advocate of public reason; I am personally agnostic about its merits. But proponents, critics and
agnostics share an interest in putting the doctrine in its most plausible light. I claim that we
cannot do so unless we drop the coercion-justifying approach.

Though not always. Despite appearances, I dont think that this is true of Rawls 1993 (see note 4, below);
nor is it clear to me that Gutmann and Thompson (1996, 2004) need endorse this suggestion.
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I. RECIPROCITY, MUTUAL RESPECT AND COERCION


All theories of public reasoning are concerned to stipulate conditions under which the
political relation between those who propose, and those who object to, political action
exemplifies the form of mutual respect appropriate among free and equal citizens. Rawls and
those who defend variations on his idea of public reason agree that this is a desideratum of the
reciprocity that marks fair and just terms of political association (Rawls 2000, Gutmann and
Thompson 1996). From the standpoint of a theory of public reason, then, each of the three types
of complaints I distinguished at the start of this paper corresponds to a particular way in which
citizens, in their capacity as proposers, might violate this expectation of reciprocity. So, on this
view, I unreasonably propose P (and hence violate reciprocity) when
I. I propose P to objectors without offering a sound and valid justification for P
II. I pretend that my advocacy of P depends on my endorsement of some argument A
when actually it is motivated by considerations that are either not a justification or
whose concealment prevents an open assessment of their justificatory credentials
III. I treat as irrelevant the fact that objectors conscientiously held ethical beliefs may
supply them with reasons to reject P even if the arguments I have canvassed are neither
demonstrably unsound nor invalid.
We can grant that I and II are unreasonable and subvert civic reciprocity, on any sensible
construal. However, to provide a rationale for the public justification requirement, we must
explain how III-type proposals are comparably unreasonable, and hence that III-type
complaints must be upheld as a matter of civic reciprocity. As already noted, many intimate
that the best explanation has something to do with the effort to justify coercion. Here are some
representative statements:
(1)
An association is political insofar as it relies on what it claims to be the
legitimate use of force to secure compliance it is this coercive character of
political principles that we have in mind when we hold that such principles
must be the object of reasonable agreement. to respect others as persons in their
own right when coercion is at stake is to require that political principles be as
justifiable to them as they presumably are to us (Larmore 1996, 137)
(2)
Alphas coercion against Beta is legitimate only if there exists a
justification for it that Beta may be reasonably be expected to endorse (Smith 2004,
115)
(3)
If you are fully rational and I cannot convince you of my view by
arguments framed in the concepts we share then even if mine is the majority
view I should not coerce you (Audi 1993, 701)
(4)
A public justification is a reason for coercion that the person being
coerced can reasonably be expected to endorse (Vallier 2006, 3).
(5)
Whatever ones evaluative standards, so long as one has any reason to act
on them, and so be an agent, one must have strong reason to object when others
exercise force or coercion to thwart ones agency. Someone who seeks to coerce

you (without justification) to make you do as he wishes is attacking your


fundamental interest in acting on your own evaluative standard. The wrongful
coercer supplants your evaluative standards with his own as the grounds for your
action. (Gaus 2010, 233)
(6)
The inclusion principle *required by democratic public reason+ set*s+
a standard for protecting individuals against illegitimate coercion *it+
evaluates coercion from individuals points of view, focusing on the interests of
the coerced instead of the interests of society as a coercer (Brettschneider 2007,
66ff)
(7)
Citizens who are coerced on the basis of laws they reject are deeply
averse to being so coerced, particularly if they reject those laws on what they
consider to be entirely legitimate, reasonable grounds. Respect for his
compatriots obliges a citizen to ensure that his favored coercive laws are justifiable
from the points of view of those compatriots respect for his compatriots requires
that he provide them with reasons they can accept in support of his favored
coercive policies.Respect for others requires public justification of coercion. (Eberle
2002, 54)
These claims all appear in writings devoted either to defending or evaluating some version of
the public justification requirement. Examples could be multiplied; the repeated mention of the
coercive quality of political action in this context is striking. It suggests that, within doctrines of
public reason, the need to uphold type-III complaints depends in some important way on the
requirements for justified coercion. This I deny.
In doing so, however, I dont dispute that coercion is presumptively illegitimate, nor that
citizens are always owed a sound and valid justification for any coercion. If I can show that
what you take to be true and good reasons to coerce people in accordance with policy P
actually do not justify the coercion involved, then clearly you ought to withhold your support
for P. But while no one disputes that this is required by principles of mutual respect and civic
reciprocity, mine would here be a substantiated type-I complaint, not a type-III complaint, one
based on the public justification requirement. The difficult question is thus not whether valid
and sound arguments are needed to overcome the presumption against coercing people; it is
rather whether satisfying the public justification requirement is also among the necessary
conditions for doing so.
There are strong reasons to suspect that this additional requirement is superfluous, and
hence that type-III proposals do not violate civic reciprocity. Suppose that some citizens have
produced an argument for a policy/principle P strong enough to overcome the presumption
against the coercion that P would entail, and against Ps other potentially disqualifying traits.
Why should the presence of a conflict between this sound and valid argument and the personal
views of some citizens show that the coercion involved is illegitimate because it therefore lacks
a public justification? If our argument is good enough to overcome presumptions against P,
everyone is presumably in a position to understand that P is to that extent justified, regardless
of their other beliefs. Our arguments are either good or bad. If they are bad, then our proposals

can presumably be invalidated on type-I grounds. If they are good, they wont cease to be so
just because they conflict with beliefs held by other citizens and so it becomes unclear why (in
that case) type-III complaints should have any relevance. Raz is surely right here: there is
nothing inherently private about justification. Regarding any justified principle, people of
normal capacities are in principle able to understand that it is justified. The requirement that
the principles on which the constitution is based be justified already includes the requirement
that every potential subject of the constitution be in principle capable of understanding that
they are justified. (Raz 1998, 38)
Nor is it obvious that we disrespect anyone by enforcing policies for which we have
provided a sound and valid justification, even when others conscientiously reject it. As Galston
says,
Larmore (and Ronald Dworkin before him) may well be right that the norm of equal
respect for persons is close to the core of contemporary liberalism. But while the
(general) concept of equal respect may be relatively uncontroversial, the (specific)
conception surely is not. To treat an individual as a person rather than an object is to
offer him an explanation. Fine; but what kind of explanation? Larmore seems to suggest
that a properly respectful explanation must appeal to beliefs already held by ones
interlocutors; whence the need for neutral dialogue. This seems arbitrary and
implausible. I would suggest, rather, that we show others respect when we offer them,
as explanation, what we take to be our true and best reasons for acting as we do
(Galston 1991, 109)
So even if we agree that mutual respect and civic reciprocity are vitally important, and even if
we accept that there is a presumption against coercion, we still need to motivate the public
justification requirement. A host of critics have exploited this central weakness of public reason
doctrines (Raz 1986, Raz 1990, Raz 1998, Wall 1997, Wall 2002, Sher 1998, Chan 2000, Eberle
2002, May 2009).
Nonetheless, many advocates of the public reason view cling stubbornly to the view that
need to avoid illegitimate coercion can do double duty in motivating, not only valid type-I
complaints, but valid type-III complaints as well. But how, exactly? One possible explanation
exploits a formal entailment between these claims. If (as for example Larmore suggests in
passage (1) above) coerciveness is definitive of political action as such, then it simply follows
that the justified exercise of political power must be a justification of coercion. Concomitantly,
arguments for political action that satisfy the public justification requirement must be, ipso
facto, arguments licensing the use of coercion. And since that requirement demands a
justification that is reasonable from all points of view it also entails that those coerced by a
publicly justified action (since they presumably have a point of view) can accept the associated
coercion as reasonable.
But this explanation is a non-starter. This purely formal dependence runs in the wrong
direction given the aim of motivating the public justification requirement. In these claims the
conclusion that (publicly) justified political action is (publicly) justified coercion is simply a

logical implication of the premise that political action is coercive. No merely formal relation of
this kind can explain why the presence of coercion makes public justification necessary. Nor
could such tautologies show that, or why, coercive proposals that lack a public justification
(type-III) must subvert civic reciprocity or disrespect citizens.
In any case, the passages listed above suggest a different, and more substantive, answer to
our question. They all focus on the predicament of the subject, the private person who faces
coercion as a result of the adoption of some principle or policy. Thus Gaus (5) is concerned
primarily with the plight of a person whose agency is thwarted by being subjected to
coercion on grounds they reasonably reject. That is why he insists that public reason liberalism
ties respecting persons to justifying coercion to those coerced (2008, 21). Brettschneider (6)
likewise stresses the need for valid political arguments to engage with the point of view of the
coerced and not that of the coercer. Eberles (7) reconstruction of the public reason view again
stresses the need to address the aversion that private individuals have to suffering coercion on
grounds they reasonably reject. I could go on but dont want to belabor the point: the clear
implication of all these passages is that the triggering context for valid type-III complaints is one
in which the complaining party faces coercion justified on grounds they reasonably reject.
The thought here appears to be this: if such complaints are not upheld, the relation
between proposers and objectors transforms into one between illegitimate coercers and
illegitimately coerced. The disrespect involved in imposing political actions on citizens who
reasonably reject the rationale proposers offer derives from the illegitimate coercion that
objectors must suffer as a result. If this makes sense, we could agree that the public justification
requirement is among the conditions for justified coercion. No one disputes that unjustified
coercion is disrespectful; it treats those coerced as mere means to others ends, and does not
properly reckon with agents dignity as autonomous ends-in-themselves. So this line of
argument appears to explain in a direct and compelling way why the public justification
requirement is also a desideratum of civic reciprocity. When it is violated, some are
illegitimately coerced and hence not properly respected.

II. OBJECTIONS TO THE COERCION-JUSTIFYING ACCOUNT


Compelling as it may appear, however, this coercion-justifying rationale for the public
justification requirement is vulnerable to three decisive objections.
(i)
(ii)

(iii)

It is false that all political actions that, on any recognizable version of a public
reason view objectionably lack a public justification, must be coercive.
Even when political actions are coercive, objectors entitled to make type-III
complaints under the doctrine of public reason are often not subject to the
coercion involved.
When closely tied to the justification of coercion the public justification
requirement has the unwelcome consequence that it loosens the presumption
against coercion in cases in which it almost certainly should not be relaxed.

I will discuss each in turn.


(i) Consider
Magnesian Lottery: The government of Magnesia raises substantial funds by means
of a self-financing national lottery. Participation in the lottery is widespread and
entirely voluntary. People play for fun and dont think much about its revenue-raising
function, nor about the projects on which the money might be spent. After free and fair
elections, in which party platforms are openly canvassed, a political party committed to
a particular conception of the good comes to power. It proposes to use the surplus funds
raised from future renditions of the lottery to set up a new ministry dedicated to
promoting the way of life recommended by its preferred conception of the good. The
government insists, let us assume sincerely, that under its proposal, the money wont be
used to restrict anyones speech or religious practice, nor to enforce any particular legal
prohibitions. It proposes, rather, to build a grand building to house the new ministry,
prominently displaying iconography celebrating historical figures who pioneered and
disseminated the perfectionist ideals involved. The ministry will sponsor a variety of
programs, including educational initiatives, the publication of documents advocating its
conception of the good life, the making available of opportunities (fellowships, research
support, start-up subsidies etc.) to those who wish to pursue and explore the conception
of the good involved. These are intended (and likely) to lend these views greater
visibility, credibility and influence in public and private life. A majority of citizens in
Magnesia endorse and live by this conception of the good, and yet it is conscientiously
rejected by a significant minority. Members of this minority vociferously object that
since they reasonably reject the perfectionist arguments being offered, they have not
been given a public justification for this use of public funds and that for this reason the
governments policy should be abandoned.
In this case, the minoritys complaint centers on the controversial character of the
justifications for the political measures being proposed. But its hard to see how coercion could
be involved in this complaint, for here theres just no clear coercion to be found. Participation in
the lottery scheme is, by hypothesis, entirely voluntary: no one is forced to buy tickets.
Moreover, the measures by which the governing party promotes its favored conception dont
involve any clear coercion. The money is used to produce literature that no one is compelled to
read; to construct a building that none can be required to admire; to offer financial support that
may be declined; to endow fellowships for which no one is forced to apply; and to circulate
information that everyone is free to ignore and indeed contest.
The Magnesian case parallels one in which individuals voluntarily participate in some
private scheme dedicated to the promotion of a particular conception of the good rejected by
others. Nobody believes that participants in such private endeavors owe those others a public
justification for what they are doing. One is tempted to say that this is because such private
organizations do not coerce others into participating or contributing -- the intuition that
undergirds the coercion-justifying view. But the Magnesian case suggests that this cannot be
the whole story. While the Magnesian governments proposal is not a coercive one, it is also

hard to reconcile with the ideal of civic reciprocity that proponents of public reason cherish.
Here, the government is committing itself, at a justificatory level, and moreover in a highly
visible way, to a particular conception of the good life, knowing full well that a significant
minority reasonably rejects it. The fact that, in making this commitment, the government is not
proposing to coerce anyone does not seem to weaken the minoritys type-III complaints at all. If
such complaints are ever valid, surely this is exactly the sort of case in which one would expect
them to be upheld. Of course, what seems to be making type-III complaints relevant to the
Magnesian proposal is the way in which it channels voluntary contributions through public,
rather than wholly private, agencies. But that is just the point: whatever difference this public
channeling makes to our judgments cannot in this case be attributed to its coercive character,
for here it has none.
There are several ways in which proponents of the coercion-justifying view might try to
resist this counterexample. One reply might be that this case falls outside the scope of a public
reason view because it does not concern the justification of constitutionally essential
principles, which are always coercive in character, and where the public justification
requirement therefore applies most urgently. Since the Magnesian case involves a non-coercive,
constitutionally inessential, proposal, objectors are not entitled to make type-III complaints. It
cannot therefore provide a counterexample to the coercion-justifying account, or so one might
object.
But this line of reply seems unpromising. Apart from the obvious problem that not all
versions of the public reason doctrine restrict the application of the public justification
requirement to constitutional essentials (Solum 1993, Quong 2004), a deeper difficulty is that it
begs the question. According to the current objection, the governments proposal does not
require a public justification because it is permitted by more fundamental constitutional
essentials. However, even if the Magnesian proposal is itself constitutionally inessential, it can
be valid legislation in Magnesia (presumably) only because the Magnesian constitution permits
legislation of this kind. So, if we claim that it can be valid legislation for this reason, we imply
that a set of basic (constitutionally essential) principles that permit such proposals to be
enacted can themselves be given a public justification and so are acceptable from within all
reasonable points of view represented among a diverse citizenry. But we cannot simply assume
that they can. Whether constitutional essentials may permit public funds to be used to promote
a controversial conception of the good even though the funds are neither collected nor used in
coercive ways must itself be a matter of reasonable dispute among participants at a Magnesian
(or any other) constitutional convention. One can easily imagine representatives of the
Magnesian minority, knowing that they are outnumbered by those who affirm a conception of
the good life they revile, rejecting any such constitutional permission. It is possible, of course,
that they are rejecting it unreasonably and hence that the Magnesian constitution can allow
proposals like this one without violating ideals of public reason. However, this has to be
shown; and we cannot establish that they reject it unreasonably just by asserting that only
coercive public action requires public justification, for that is exactly what is now in dispute.

Rather than solving the problem exposed by the Magnesian example, then, moving the
focus from statutory proposals to constitutionally essential provisions only displaces it to the
constitutional level, where it then resurfaces. What if participants at a constitutional convention
propose a clause, modeled on the famous phrase from the Declaration of Independence, asserting
that we hold these truths to be self-evident where these truths refer to doctrines belonging to
the same conception of the good rejected by the Magnesian minority? By itself, such a
declaration would not be coercive, but it is hard to see how its inclusion in a constitutional
document could be given a public justification given the reasonable dissent of that minority.3
Another, quite different, way to resist the Magnesian counterexample is to claim that the
absence of coercion in the example is apparent rather than real. Thus one might point out that
an effect of the Magnesian governments proposal would be to narrow freedoms and
opportunities that members of the Magnesian minority might otherwise have enjoyed;
resources that might otherwise have been available for them to support their projects are now
beyond their reach. These limits on the freedoms of some citizens, because imposed by the state,
amount to a form of coercion. In requiring that this freedom-limiting policy be given a public
justification, then, we are following the perfectly orthodox principle of public reasoning that
state coercion must be given, not only some sort of valid, sound justification, but also one that
none of those affected by the coercion reasonably rejects. Since the Magnesian minority does
reasonably reject the majoritys conception of the good life, the public justification requirement
disallows the use of public funds in this case. It does so, moreover, precisely because the
minority faces coercion, or so the objection might run.
This reply fails because it stretches the concept of coercion past breaking point. Theorists
still disagree about exactly how we should demarcate the category of the coercive (Pennock
and Chapman 1972; Wertheimer 1987), but virtually no one claims that just any limitation of a
persons freedom is automatically coercive. When a highly successful competitor opens a store
across the street from your own outlet, it limits your freedom to transact with the local
population. When people with superior qualifications go onto the labor market, they reduce the
opportunities of less well-qualified individuals to obtain the available positions. But none of this
need be coercive, even though freedoms and opportunities are reduced. Most agree that a
distinctive feature of coercion is the presence of a deliberate threat against a person that is
intended to deflect them from choices they would otherwise make (Nozick 1994; Raz 1986,
148ff; Gorr 1989, 20-34).
Indeed, it is just this feature of (much) coercion that makes the coercion-justifying
explanation for the public justification requirement so bewitchingly plausible. When one is
3 To be sure, once included in a constitution, such a clause might become a basis on which courts
adjudicating difficult cases in the future could license state coercion justified on the basis of these truths.
However, that is a contingent outcome: and, while such coercion doubtless compounds the injury, proponents
of the public reason view should urge the rejection of this clause on type-III grounds because it is
objectionable in its own right, whether or not it leads to later coercion. This raises the question of how the
adoption of such a clause is incompatible with civic reciprocity, even though it is not directly coercive, and
puts us back where we began.

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coerced, an alien agency forces ones hand. However, if the justification for coercion is one that
the person coerced can affirm as a consequence of (or at least compatibly with) their own
convictions, as per the public justification requirement, there is a sense in which the coercion is
licensed from within rather than being a pure case of external domination. (Rawls 1999, 12;
Nagel 1991, 36-7; Gaus 2010, 233) Appealing as this line of thinking may be, however, none of
this plausibly applies in the Magnesian case. The minoritys freedoms would indeed be
reduced to some degree under the lottery-funded proposal. However, assuming for the sake of
argument that its guarantees are sincere (and thus engender no type-II complaints), the
Magnesian proposal is not threatening anyone with anything. I therefore see no reason to accept
the counterargument that coercion is after all involved in this case.
One might respond by invoking the principle, rightly insisted upon by Mill, Feinberg,
Benn, Gaus and many others, that the presumption always lies in favor of preserving liberty,
and against abridging it. On this view, agents are under no standing obligation to justify their
freely chosen activities; the justificatory burden is always on those who would limit their
freedoms, whether in coercive or noncoercive ways. But nothing said so far denies this. Here,
we are trying to motivate the public justification requirement, and hence explain when and why
type-III complaints should be recognized and upheld. But the continued relevance of type-I
complaints is not in doubt: if objectors can show that a proposal lacks a valid and sound
justification (one that defeats any presumptions against enacting it), then proposers should
withdraw it for that reason. So I am not suggesting that the Magnesian government need not
provide any sort of justification for how it is proposing to spend the lottery funds. Insofar as the
governments proposal burdens others liberty, any valid justification must overcome the
natural presumption against doing so, although since in this case the proposal would not coerce
anyone, the justificatory burden it must meet in order to rebut any type-I complaints along
these lines would presumably be to that extent lower.
Hardliners could insist, of course, that no argument derived from a perfectionist conception
of the good life can ever be strong enough to justify any burden on someones liberty. But that
is too implausible to believe. We can therefore safely grant, for the sake of argument, that the
conception of the good life accepted by the Magnesian government can in principle justify the
limits on individual liberty involved. However, this still leaves us searching for a reason to
impose the additional requirement that its justification also be public.
(ii) Consider now a second objection. As we have seen, the force of the coercion-justifying
account derives from a postulated equation of two relationships: the deliberative relation
between proposers and objectors and the political relation between coercers and coerced. It is
this equation that makes plausible the idea that unless the public justification requirement is
satisfied, citizens will suffer subjugation or disrespect because coerced in the name of values
and beliefs that find no home within their own personal point of view. Unfortunately for the
coercion-justifying account, this equation is unrealistic. Those who articulate plausible type-III
complaints need not be those facing coercion from the proposals to which they object.
Consider, for example, the following case:

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Potassian Bachelors: a substantial minority of predominantly unmarried, male citizens


vehemently reject the religious orthodoxies that prevail in Potassia. When confronted
with a proposal, instigated on the basis of a religious argument they reject, to prohibit all
abortions except to save the mothers life, these men complain that they cannot accept
the law because they cannot reconcile their considered convictions with the religious
justification offered.
In cases like this, which are surely quite common, those who are unable to reconcile the
justification for political action with their own convictions need not face any coercion from the
policies involved. Such cases create a dilemma for those who would defend the coercionjustifying rationale for the public justification requirement. They force proponents of such a
view to choose between
. Embracing the coercion-justifying view, and thereby dismissing the type-III complaints of
e.g. Potassian Bachelors because they face no coercion from the laws they oppose.
. Upholding e.g. the Potassians Bachelors type-III complaints but then acknowledging that
the rationale for doing so cannot be based on any threat of illegitimate coercion directed at
the objectors, thus abandoning the coercion-justifying account.
For a proponent of public reason, is by far the less appealing of these options: are we to say
that bachelors who do not want children themselves, or who cannot father a child, are excluded
from demanding a public justification for a pro-life abortion statute, just because they face no
coercion from such a law? Must we wait until they are directly affected by coercion of their
female associates before we take their type-III complaints seriously? Such a stance seems at
odds with the form of civic reciprocity public reason doctrines intend to promote. But , while
more appealing, leaves the public justification requirement without any obvious rationale, and
hence more vulnerable to standard objections.
Some will be wary of this example, because of course Potassian women (call them
Potassiennes) clearly do face coercion under the proposed statute. They may say that to focus,
as I have here, on type-III complaints articulated by others who are not threatened with any
coercion is to ignore the most urgent issue raised by the example: why should women who wish
an abortion be forced to have their babies on the basis of a religious argument that they may
reasonably reject?
I would not dispute the claim that, because they do face coercion, the Potassiennes
complaints (of whatever type) are more urgent. But equally, it does not follow that type-III
complaints articulated by their uncoerced bachelor compatriots are unworthy of any
consideration in their own right. Regardless of the relative urgency of the two sets of
complaints, proponents of the public reason account should want a rationale for the public
justification requirement that explains why the Potassiennes and the Potassian bachelors typeIII complaints both deserve to be taken seriously (unless, implausibly, they assert that the latter
can simply be dismissed). I will later suggest an account that does just this, but it seems clear
already that the coercion-justifying account must treat the two cases as fundamentally different

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(not merely more or less urgent), and that this is a good reason to seek such an alternative
account.
(iii) Some will still feel the force of the intuition that when coercion is directed against
individuals (like the Potassiennes in my example) the public justification requirement
constitutes an important protection against coercive domination at the hands of the state. But I
now want to suggest (this is my third objection) that this appearance is quite illusory and that
adding the public justification requirement to the list of conditions for justified coercion actually
makes citizens more, not less, vulnerable to illegitimate coercion. The reason for this is that,
construed as a condition for justified coercion, the public justification requirement interferes
with (and so potentially disables) other presumptions against coercion that should remain in
force. It cannot therefore be simply added innocently to the list of presumptions against
coercing people: its inclusion requires that other important presumptions against coercing
people be problematically relaxed.
To see why, consider a modified version of the Potassian case. Suppose now that all the
Potassiennes whose pregnancies might fall under the regulation of the proposed statute are in
fact willing and committed adherents of the religious tradition inspiring it. Under these
conditions, the coercion-justifying account leaves the Potassiennes little margin for complaint.
According to that account, coercion can be legitimate when the arguments justifying it accord
with the conceptions of the good accepted by its targets. But, by hypothesis, the Potassiennes
meet this condition and hence cannot complain that the public justification requirement is
unmet. If we follow the coercion-justifying account, this removes one consideration against
coercing them. To be sure, the coercion-justifying account need not regard the public
justification requirement as a sufficient condition for justifying coercion. But even if it is only a
necessary condition, the coercion-justifying account still implies that when the case for coercion
depends on beliefs accepted by the victim, this circumstance may count in favor of applying the
coercion (even if the coercion may eventually be defeated on other grounds). But this strikes me
as too large a concession to make.
Some may be puzzled here: if some Potassiennes accept that abortion is murder, because
committed to (say) a Catholic worldview, why shouldnt this count in favor of coercing them
into carrying their babies to term? After all, the justification for their coercion stems from
assumptions firmly lodged within the Potassiennes own system of religious convictions, and so
is not being imposed upon them from some alien justificatory source.
Although encouraged by the coercion-justifying account, this line of argument threatens,
rather than secures, important protections against state coercion. For surely we can imagine
Potassiennes (and others) complaining that the coercion they face here is still illegitimate even
though it accords with the religious beliefs they have professed in the past and may continue to
endorse in the future. The basis for such a complaint, in my terms a type-I complaint, would be
the principle that state coercion ought never to be used against a person in order to force them
to act in accordance with their own professed ethical beliefs, just because they believe them. The
latitude to depart from ones own convictions in ones actions, even those that one will continue
to profess, is integral to freedom as we know it: in a free society no one is to be held prisoner by

13

their own beliefs or personal commitments, and force may not be used to prevent us from
straying from them.
This same prerogative rules out the public sanctioning of apostasy and underlies the crucial
distinction between enforcing contracts so as to assure the reasonable expectations of others
(which the state may properly require) and enforcing vows one makes to oneself (which is an
undue burden on personal liberty) (Schelling 1985, 83-112). When Potassiennes who oppose the
abortion statute protest that they have a right to control their own bodies, they assert precisely
that it should be up to them whether to apply, or override, their own religious convictions when
they face the difficult personal decision of whether to carry an unwanted pregnancy to term. To
say that one enjoys a right to control ones own body only if one uses it in ways consistent with
ethical commitments that one professes is simply to miss the point (and value) of having such
rights. Inconsistency is a vital human freedom.
The significance of this consideration is easily obscured in the abortion case, because the
right of pregnant women to control their own bodies is not the only relevant issue. The fetus
also has important claims, ones that many think may trump those of pregnant women in some
instances. Nothing said so far undermines arguments for coercion in defense of the claims of
the fetus (for here, what matters are the actual constraints on appropriate treatment of the fetus,
not the fact that certain people believe in them). Moreover, insofar as they recognize
presumptions against abusing the fetus, citizens must acknowledge that, in deliberating about
abortion legislation (of any sort), they face an inherently tragic choice: they must choose
between options against each of which there are powerful presumptions. But these
complicating features of the abortion case should not lead us to lose sight of the key point I
underline here. While there may well be good reasons for members of a particular political
community to eventually settle on a resolution of their disagreements over abortion that, for the
sake of the fetus, coercively limits womens rights to decide the terms on which their
pregnancies should proceed, the fact that pregnant women (even unanimously) affirm pro-life
beliefs is not among them. To allow such a reason to count in favor of their coercion would be
to abandon a basic principle, which I will call the Prerogative Principle: the bare fact that
someone has convictions that imply that they ought to X should not weaken the presumption
that the state not coerce them to X. Yet tying the public justification requirement to the
justification of coercion conflicts with that principle, for it implies that when an argument for
coercion can be reconciled with the victims own ethical standpoint, coercion may legitimately
be applied (assuming that the argument is not independently invalid, unsound or insincerely
offered). However, I see no reason to abandon the Prerogative Principle, either in this case, or in
other any other instance in which citizens avowed commitments imply that they ought to
behave in particular ways (Assisted suicide? Alcohol use? Infidelity?). If we should not sacrifice
that principle at the altar of the public justification requirement, we have good reasons to reject
the coercion-justifying account.

14

III. AN ALTERNATIVE
If, as I have suggested, the public justification requirement is not motivated by the need to
establish the legitimacy of coercion, on what else might it depend? My answer is that it is
motivated instead by the need to elicit from all who formally share in a decision a willingness to
condone it, regardless of whether they stand to be coerced as a result. I cannot develop this
answer in detail in this paper; my aim is merely to establish its superiority over the coercionjustifying account.
Condoning is something that we do: it is not a sort of belief or judgment. Nor is it simply a
form of consent, hypothetical or actual. Moreover, when we refuse to condone something what
matters is not what we stand to suffer if we are personally subjected to whatever is under
consideration, but rather the terms on which we are prepared to give our blessing to something
(1) done by another agent and (2) with which we are otherwise reluctant to associate ourselves.
In canon law, condonation originally referred to the willingness of marital partners to forgive
infidelity, but in ordinary language the notion has acquired a broader, and helpful, use. While
it shares with the concept of forgiveness the idea of waiving a complaint, condonation differs
from forgiveness in two significant respects. First, forgiveness is retrospective (we can only
forgive what has already occurred), whereas condonation may be prospective (we can ask can I
condone X? before X has happened).
Second, when we forgive, whether we can identify ourselves with the forgiven actions is
not normally in question. In forgiving you for insulting my family I am not in any way giving
my blessing to what you did. However, condoning presupposes that we are in a position to
identify ourselves with or dissociate ourselves from actions performed by others. In condoning
something we signal our willingness to associate ourselves with the actions of another agent on
certain terms, yet in a way that need not imply that the action in question is the one we would
have performed if the matter had been wholly up to us; condoning falls short of wholehearted
approval. A refusal to condone something, by contrast, declares complete repudiation, a
washing of ones hands with respect to it.
Even when informal bystanders, private individuals often distance (or associate)
themselves with the actions of others using the language of condonation (I cannot condone
what you are doing). But citizens in a democratic regime are not bystanders to, but free and
equal co-legislators jointly responsible for, public decisions. This formal status seems entailed
by the idea of democracy itself: a democratic decision is one taken in the name of a public of free
and equal citizens. This lends the need to condone crucial salience when some citizens cannot
reconcile their conscientious ethical beliefs with the arguments that proponents of controversial
legislation make for its enactment. Unless the case for the legislation in question can be
amicably reconciled with the personal ethical standpoints of those who object, the objectors will
be unable to condone what the public may be about to do in their name. To obtain their
condonation, proponents must provide a reasonable basis on which objectors might waive their
complaints against the public enactment of the relevant legislation. Citizens owe each other this
effort of reconciliation, not as potential victims of legal coercion, but as its democratic co-

15

authors. This consideration, I submit, provides the most plausible rationale for the public
justification requirement.
Under this condonation account, the focus shifts from the presumptive immunity of
private subjects to coercion, and onto the standing of democratic citizens who formally share
authorship of public action. Regardless of how many citizens actually participate in public
decisions, whether they be ratifying constitutionally essential principles or passing statutory
legislation, democratic decisions are inescapably taken in the name of everyone who belongs to
the public. In this sense, a democratic community is very unlike a private organization from
whose decisions one may dissociate oneself at will. The involuntary way in which individual
citizens are implicated in public decisionmaking under democratic conditions is the kernel of
truth in the coercion-justifying account. Once a democratic regime is in place, citizens cannot
avoid being complicit in public action. This feature of the democratic situation grounds
objectors title to reasons for condoning what is done in their name.
Nevertheless, it is a mistake to confuse this element of involuntariness with any sort of
coercion. I am not coerced into accepting the privileges of democratic citizenship; they are
simply bestowed (except when voting is made compulsory). No threats are involved in
conferring them (although the provision of the various services protecting the exercise of these
privileges may require the use of coercion). Moreover, instead of diminishing my liberty, those
involuntarily bestowed privileges if anything augment it. Rather than coercion, what citizens
suffer if their actual condonation is not secured through a process of fair-minded public
reasoning is a form of alienation from decisions that nevertheless claim to be partly theirs.
Citizens who take public action without securing my condonation of that decision violate civic
reciprocity by illegitimately usurping my public blessing for their own designs; this, not the
threat of any illegitimate coercion directed at my private person, entitles me to articulate typeIII complaints.
I believe that the condonation account is largely consistent with the position taken by most
exponents of the public reason idea. But it departs from (and may improve on) more standard
accounts in one important respect. Most versions of the public reason view assume that when
some political action is contemplated, only one thing needs to be justified the political action
itself. If we make this assumption, we must contrast type-I and type-III complaints by
distinguishing two classes of reasons that may justify the same political action by different
routes. So construed, the public justification requirement involves the demand that proposers
provide reasons that are not merely valid and sound but also publicly accessible. This forces
proponents of public reason to provide some philosophical basis for parceling reasons out into
these various different categories ordinary, good practical reasons, and special public
reasons, secular reasons, noncomprehensive reasons, accessible reasons or reasons all can
accept.
Such distinctions have caused much trouble, and one reason to explore the condonation
account is that it may obviate them. For it does not assume that only one thing needs to be
justified whenever a political action is proposed in a democratic society. Proponents must not
only provide a sound and valid justification that establishes, to a degree appropriate for

16

political contexts, its wisdom under the circumstances. They must also recognize that, when
objectors cannot reconcile the justification for the proposed principle or policy with their
deepest personal convictions, proponents still owe those objectors an independent justification
for their (individual) decision to condone its public enactment. On this view, type-I and type-III
complaints differ in that they demand justifications for two different things, not because they
demand different sorts of reasons for the same thing. It is one thing to justify P, and another to
justify Xs decision to condone P when the arguments justifying P conflict with Xs deepest
ethical convictions, and when X is an equal member of the agency adopting P. These are two
separate moments in any democratic enactment; both require independent justification, and
that (on my proposal) is the source of the distinction between type-I and type-III complaints.
Differentiating between categories of reasons is not required to draw that distinction. We need
only carefully distinguish between two separate decisions that need justifying, each of which
we then justify by invoking ordinary, sound practical reasons suited to the needs of the
occasion.
Consider now the implications of this view in the three cases I used as counterexamples to
the coercion-justifying view.
(i) In the Magnesian case, the minority, although not facing any coercion from the lotteryfunded programs, are plainly in no position to condone what the government proposes to do
partly in their name. It is thus quite reasonable for them to demand that the government
provide further arguments describing a basis on which the minority might reconcile themselves
with their proposal and so come to condone it.
What might such an argument look like? Here is one possibility. Suppose the Magnesian
Constitution explicitly grants democratically chosen governments some discretion (defined on
certain terms) to introduce legislation reflecting the controversial ethical beliefs of the majorities
that elected them. Magnesian citizens might have accepted a constitutional settlement of this
kind as a way to negotiate their differences, and to strike a balance between the public values of
democratic self-determination and personal freedom by which they are all prepared to stand. A
settlement along these lines would effectively constitute an agreement among citizens to confer
upon each other bystander status in relation to statutory decisions in defined areas of
legislation, subject (presumably) to enumerated restrictions (such as the right of overruled
minorities to openly express their dissent from majority legislation, or the right to seek their
repeal, say). Familiar ideals of responsible party government, or of a loyal opposition might
plausibly be artifacts of a settlement along such lines. By appealing to a constitutional
settlement of this sort, the majority can in principle justify the decision (of the minority) to
condone the majoritys proposed use of the lottery funds, despite their lack of sympathy for its
perfectionist rationale.
This justification can work, of course, only if the minority has no deeper valid complaints
against the constitutionally essential principles that allow elected Magnesian governments to
invoke it in defense of their use of the lottery funds. But this need not show that the presence of
coercion is, after all, playing a role in motiviating the demand for public justification at the
constitutional level. The political relation among Magnesian citizens who seek agreement

17

around constitutionally essential principles is not uniquely that of coercers and coerced,
although it may (as Rawls frequently says) always be that, too. It is also that of co-ratifiers
seeking a set of basic rules (as Rawls also clearly thought) for democratic procedures that each,
despite any conscientious misgivings, is prepared to condone.4 While any legitimate
constitutional order must recognize, and incorporate into its provisions, the principle that
coercion of private persons without adequate justification is improper, I doubt that this is why
participants at a constitutional convention may press for a public justification of (i.e. a basis on
which to condone) some controversial constitutional provision. It is because a constitution,
even more than statutes, is supposed to represent inclusively the will of the whole public of free
and equal citizens in whose name it is adopted.
(ii) The condonation account also explains why, even though they face no coercion from the
proposed abortion statute, the Potassian bachelors still have standing, under the public
justification requirement, to demand that their type-III complaints be met. If enacted, the
abortion statute is still being adopted in their name; this alone gives grounds for reasonable
complaint. We can see the point even more clearly by imagining a democratically constituted
body that is as diverse in its religious and ethical affiliations as the citizenry of a modern liberal
society but that has responsibility, not only for its own laws, but also for the laws of some
overseas colony. Obviously, imperial domination is problematic in its own right, but for the
sake of argument, grant that there is no immediately practicable way to render the colony selfgoverning: the only alternatives are colonial rule or chaos. I cannot see why the public
justification requirement should apply any more weakly in this instance just because citizens
are not deciding here how to coerce each other. Suppose, for example, that one group of citizens
wants to Christianize the colony, but that their atheist fellows refuse to condone such a policy.
Perhaps citizens will as a matter of fact be less likely to protest when making decisions about a
colony and not their own society, but this is a contingent matter that doesnt affect the reasons
they may have for doing so. Their interests as potential victims of legal coercion are certainly
not at stake here. But this would not seem to weaken their complaint at all: why should they be
expected to associate themselves with a decision whose rationale offends their deepest
convictions? This remains problematic, I submit, because their interests as part authors of the
decision remain fully in view.
(iii) By disconnecting the public justification requirement from the conditions for justified
coercion, the condonation account preserves, rather than threatens, the Prerogative Principle.
When Potassiennes or others object that the state may not count their avowal of pro-life beliefs
as a reason for their coercion, they are not demanding a public justification for the Potassian
abortion statute. They are rather invoking the Prerogative Principle to reassert a presumption
against coercion: this is a perfectly traditional, type-I, objection. The question of public
justification only arises later, when some citizens object that proposed resolutions of their public
disagreements about abortion conflict unduly with their own ethical outlooks. But those who
find themselves in this position need not face any coercion.

See Rawls 2001, 90-1 for a passage in which Rawls clearly distinguishes these.

18

For example, suppose Potassiennes propose a resolution that gives women a fairly large
permission to terminate their pregnancies in the first trimester, and pro-life citizens block it on
type-III grounds. These pro-life Potassians may well be like the bachelors we met earlier, males
who will never have to face a decision, coerced or otherwise, to terminate or proceed with a
pregnancy. So any type-III complaint they make obviously cannot take the form of a demand
that Potassiennes justify the coercion they are proposing to direct at them: for many of those
who press it face no such coercion from the relevant legal enactments. If it has any force at all,
their demand is much more plausibly rendered as a complaint that they cannot condone what
the Potassiennes propose to do in the name of the Potassian public as a whole.

IV. CONCLUSION
The alternative to the coercion-justifying account that I have sketched out is, I believe,
already implicit in much of the contemporary literature defending versions of the public reason
ideal.5 But the fixation on the justification of coercion has obscured its contours, and I have tried
in this paper to make a start on bringing them out from the shadows. Many problems remain to
be faced in developing the condonation account; I conclude by noting two advantages that
make those problems worth facing.
First, it offers a response to the major objection, noted at several points in this essay, that a
government that pursues a policy with which some of its citizens disagree need not violate civic
reciprocity as long as it offers a cogent justification and acts sincerely. The problem is to explain
why objecting citizens are still treated with disrespect under these conditions. The coercionjustifying account tends to focus on the standing of citizens as Kantian ends-in-themselves,
bearers of a dignity that coercion threatens. But this leaves the public reason view vulnerable to
the objection that when citizens press well-justified proposals over the objections of others with
conflicting conceptions of the good, they do not thereby demean anyones dignity or treat
anyone solely as a means, in part because they need not thereby be coercing those who object.
It is this vulnerability that critics like Christopher Eberle exploit when they argue that
proponents of well-justified but controversial (Eberle has in mind religiously inspired)
legislation need only make a good faith effort to meet the objections of others. Respect does not,
in this view, require the withdrawal of such proposals even when such efforts fail (Eberle 2002,
109-51).
However, a religious majority (say) that forges ahead under these conditions cannot really
pretend to be respecting the status of their nonreligious fellows as equal co-authors in my sense
(unless they are acting in accordance with constitutional rules that their fellows have
antecedently condoned, as in the modified Magnesian case considered above). In such a case,
the majority claims to act in the name of a collectivity (the public) purporting to represent all
groups inclusively. At the same time, they recognize that other citizens are quite reasonably
Especially in the very Rousseauan Cohen 1996. The claim is also clearly implicit in much of Habermass
recent writing and, I would argue, in Rawlss original statement of the public reason view in Rawls 1993. I am
also not the first to query the role of coercion in public reason arguments. See Lister 2008 and Lister 2010.
5

19

unable to condone what is being done. Proceeding in the face of this recognition is not
necessarily coercive, but it is a kind of usurpation. It appropriates nonreligious citizens
legitimate say in decisions that claim to be partly theirs and alienates them from authorship.
Even if they suffer no coercion, their Kantian dignity left wholly undefiled, members of a
minority group whose conscientious inability to condone public actions was ignored in this way
would be victims of a definite sort of disrespect. The notion of disrespect at stake in this
argument has been well described by Harry Frankfurt: it involves, he says, the profoundly
disturbing experience of not being taken seriously, of not counting, of being unable to make
ones presence felt or ones voice heard (Frankfurt 1999, 153).
Of course, one might still object that this institutes an unreasonable veto on well-justified
proposals. All versions of the public reason doctrine, including the coercion-justifying view,
face this problem, because they all incorporate an ideal of higher-order unanimity. Yet, as we
have seen, citizens may condone, at a constitutional level, rules permitting democratic
majorities to pursue controversial legislation under defined circumstances. Given this, my
account need not require that each and every democratic enactment be condoned unanimously
in its own right. Finally, it is an open question whether this is really a worry about the public
reason idea itself, or an objection to the underlying democratic ideals involved in it. A society in
which only valid type-I and II complaints may impede political action, while type-III
complaints are systematically ignored, may look more like (what Estlund calls) an epistocracy
than any recognizably democratic form (Estlund 2008).
Second, the condonation view avoids any appeal to the problematic notion of reasons all
can accept ably criticized by Bohman and Richardson in an important recent paper (2009).
Deliberative public reason, as construed here, is a matter of providing political arguments that
anyone should accept and taking public action that all of its co-authors do condone.6 We need not
identify a special category of reasons all can accept in order to satisfy these dual tests. In both
cases, citizens try to work out, through actual deliberation, what sound and valid reasons there
might be to take proposed political action, and then separately address citizens who find it
difficult to reconcile themselves with decisions in which they claim an inalienable share. If
citizens cannot together find a rationale that justifies the condonation of those who object to a
proposal, they should shelve it.
Rather than committing citizens to recondite conversation about whether certain categories
of reasons for political action have been found, the condonation account invites them to listen to
the misgivings of their fellows, to appreciate exactly why their ethical point of view makes
reconciliation with a controversial political action particularly hard for them to achieve. This is
not to repair to some bleached public sphere, denuded of the richness provided by diverse
ethical perspectives represented in the background public culture, and populated only by
Nor, on the view suggested here need citizens anticipate the conscientious misgivings of their fellow citizens
unless the latter step forward and publicly canvass them. We need justify Xs condonation only if X demands
reasons for her decision to condone what we are proposing to do in the name of the public; the onus is on
objectors to explain why the condonation is necessary. The condonation view thus generates what Gaus calls
a convergence rather than consensus version of public reason.
6

20

neutral, public reasons. It is instead to invite citizens to openly express their conscientious
misgivings about proposed political action, and to recognize that their standing as co-authors
entitles them to refuse their condonation until their fellows have addressed them in some way.
But I can understand your difficulties in condoning a soundly justified policy (and strive to
address them if I can see them as reasonable) only if I try to see the matter from your conflicting
point of view. To do so, I must come to understand something of your ethical outlook, however
different it may be from mine. This is a form of civic reciprocity worth wanting, because it
requires citizens to learn something of, and actively accommodate to, their differences rather
than to flee, prescinding, onto some neutral terrain in which those differences no longer
register.

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