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The Ethics of Reasoning from Conjecture *

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An important objection to political liberalism is that it provides no means by which to decide conflicts between public and non-public reasons. This article develops John Rawls’ idea of ‘reasoning from conjecture’ as one way to argue for a commitment to public reason. Reasoning from conjecture is a form of non-public justification that allows political liberals to reason from within the comprehensive views of at least some unreasonable citizens. After laying out the basic features of this form of non-public justification, this article responds to three objections based on concerns about insincerity, cultural imperialism, and the epistemic authority of those who reason from conjecture.

1. fn53* Earlier versions of this paper were presented at the 2010 conference on ‘Between Rawls and Religion: Liberalism in a Postsecular World’ at LUISS and John Cabot University, the 2007 conference on ‘Islam and Muslim Citizenship in Non-Muslim Liberal Democracies’ at Michigan State University, the Columbia University Society of Fellows in the Humanities, the Center for Democracy, Toleration, and Religion at Columbia University, and the Nuffield Political Theory Workshop. For helpful comments, I would like to thank Robert Goodin, George Klosko, Andrew March, Jonathan Quong, Adam Swift, Andrew Williams, and three anonymous reviewers.
2. fn11 Here I assume that readers are generally familiar with political liberalism and the idea of public reason as developed by John Rawls and others. See John Rawls, Political Liberalism (New York: Columbia University Press, 1996); John Rawls, “The Idea of Public Reason Revisited,” Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 1999), 573-615; see also, e.g., Charles Larmore, “Public Reason,” in The Cambridge Companion to Rawls, edited by Samuel Freeman (Cambridge: Cambridge University Press, 2003), pp. 368-93; Jonathan Quong, Liberalism Without Perfection (Oxford: Oxford University Press, 2010).
3. fn22 For discussion of the objection that public reason is inconclusive or indeterminate, see Micah Schwartzman, “The Completeness of Public Reason,” Politics, Philosophy, and Economics 3 (2004), pp. 191-220.
4. fn33 Here I follow Rawls in equating pro tanto justification with justification based on a reasonable balance of political values. For this reason, I use the phrase “pro tanto justification” and “political justification” interchangeably. See Rawls, Political Liberalism, p. 386. For more on the distinction between pro tanto and full justification, see Norman Daniels, “Reflective equilibrium and justice as political,” Justice and Justification (Cambridge: Cambridge University Press, 1996), pp. 149, 162-64.
5. fn44 From the relatively recent inception of political liberalism and its accompanying idea of public reason, this objection has been perhaps the most common and persistent, receiving various formulations but also remaining fairly constant over the years. See, e.g., Michael Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 1998), pp. 196-202, 215-17; Bruce Brower, “The Limits of Public Reason,” Journal of Philosophy 91 (1994), 5-26; William Galston, Liberal Purposes (New York: Cambridge University Press, 1991), pp. 147-49; Stephen Mulhall and Adam Swift, Liberals and Communitarians, 2nd ed. (Cambridge: Blackwell Publishers, 1996), pp. 228-31; Leif Wenar, “Political Liberalism: An Internal Critique,” Ethics 106 (1995), 32-62, at pp. 57-58; Micah Lott, “Restraint on Reasons and Reasons for Restraint: A Problem for Rawls’ Ideal of Public Reason,” Pacific Philosophical Quarterly 87 (2006), pp. 75-95; Christopher Eberle, “Basic Human Worth and Religious Restraint,” Philosophy and Social Criticism 35 (2009), pp. 151-81.
6. fn55 Rawls, “Public Reason Revisited,” p. 591.
7. fn66 See, e.g., Andrew March, Islam and Liberal Citizenship: The Search for Overlapping Consensus (Oxford: Oxford University Press, 2009); Lucas Swaine, “Demanding Deliberation: Political Liberalism and the Inclusion of Islam,” Journal of Islamic Law and Culture 11 (2009), pp. 92-110; Joshua Cohen, “Minimalism about Human Rights: The Most We Can Hope For?” Journal of Political Philosophy 12 (2004), pp. 190-213.
8. fn77 Rawls, “Public Reason Revisited,” pp. 594f.
9. fn88 Ibid., p. 592.
10. fn99 Ibid., p. 594.
11. fn1010 Ibid.
12. fn1111 Rawls writes, “In this case we reason from what we believe, or conjecture, may be other people’s basic doctrines, religious or philosophical, and seek to show them that, despite what they might think, they can still endorse a reasonable political conception of justice.” Ibid., p. 591 (emphasis added).
13. fn1212 See Thomas Nagel, “Moral Conflict and Political Legitimacy,” Philosophy & Public Affairs 16 (1987), 215-240, at p. 218.
14. fn1313 There may, in turn, be various types of moral convergence. For discussion, see Quong, Liberalism Without Perfection, ch. 9.
15. fn1414 As Rawls says, “In public reason the justification of the political conception takes into account only political values … so that those values alone give a reasonable answer by public reason to all or nearly all questions concerning constitutional essentials … This is the meaning of pro tanto justification.” Rawls, Political Liberalism, p. 386.
16. fn1515 Ibid.
17. fn1616 See Rawls, “Public Reason Revisited,” pp. 578-79.
18. fn1717 This condition might be arbitrary to some extent, and it could probably be relaxed. If comprehensive doctrines are broadly construed as traditions of thought, then chances are good that people can argue on the basis of premises they do not accept, even though these premises in some sense belong to or are associated with their own comprehensive doctrines. Nevertheless, I shall keep this restriction in place for now, if only because it simplifies matters and tends to bring out objections that might not be raised against those who argue from within their own ethical or religious traditions.
19. fn1818 At times, and in other contexts, Rawls does seem to use the word to suggest uncertainty or a certain degree of tentativeness. See Rawls, Political Liberalism, pp. 53, 96, 219, 245, 317, 381.
20. fn1919 The relevant OED entries for “conjecture” are: “To conclude, infer, or judge, from appearances or probabilities”; “To form an opinion or supposition as to facts on grounds admittedly insufficient; to guess, surmise.” In its noun form, conjecture is defined as “[t]he formation or offering of an opinion on grounds insufficient to furnish proof; the action or habit of guessing or surmising; conclusion as to what is likely or probable;” also a “[c]onclusion as to facts drawn from appearances or indications.”
21. fn2020 This case is a more complicated variation of Gaus’ “Santa Claus” example. See Gerald Gaus, Justificatory Liberalism (Oxford: Oxford University Press, 1996), pp. 138-40.
22. fn2121 Ibid., p. 139. Gaus goes on to say in the next line: “Justifying your beliefs and principles to others does not involve simply giving others reasons they will accept, but in some way advancing reasons you think are good reasons for them to accept.”
23. fn2222 I thank an anonymous reviewer for pressing this example, which helps to show that conjecturers can make sincere claims even when they are not certain about how to resolve conflicts within others’ comprehensive views.
24. fn2323 Robert Audi, “The Separation of Church and State and the Obligations of Citizenship,” Philosophy & Public Affairs 18 (1989), 259-96, at p. 282.
25. fn2424 Robert Audi, Religious Convictions and Secular Reasons (Cambridge: Cambridge University Press, 2000), p. 110.
26. fn2525 Audi writes, “[A]cknowledging that the relevant reasons do not motivate one might diminish whatever manipulative element the appeal to them implies.” See Robert Audi, “Religious Commitment and Secular Reason: A Reply to Professor Weithman,” Philosophy & Public Affairs 20 (1991), 66-76, 73.
27. fn2626 Audi, “Religious Commitment and Secular Reason,” p. 74.
28. fn2727 For a defense of this assumption, see Micah Schwartzman, “The Sincerity of Public Reason,” Journal of Political Philosophy 19 (December 2011), pp. 375-98; but cf. David Reidy, “Rawls’s Wide View of Public Reason: Not Wide Enough,” Res Publica 6 (2000), 49-72.
29. fn2828 Audi acknowledges this point when he writes that “there can be evidential overdetermination here: two routes [religious and secular] that, from the point of view of knowledge and justification, are independent ways to reach moral principles.” Yet, recognizing a plurality of paths to knowledge of moral principles would seem to make his view inconsistent. On the one hand, he allows for a “religious grounding of ethics,” which would provide one set of reasons. On the other, he believes that there are acceptable secular accounts of morality. Why, then, does he think it wrong that some people will be moved by one set of reasons rather than another? The answer, for Audi, is that religious believers should rarely, if ever, advocate moral positions that are inconsistent with secular reason. To defend this claim, Audi argues that “God would surely provide a route to moral truth along rational secular paths. Given how the world is—for instance, containing so much evil—it would seem cruel for God to do otherwise.” Audi resolves the apparent inconsistency in his view with a theological argument about the nature of human reason. Roughly speaking, this argument says that, since God wills that human beings possess natural reason for the purpose of discovering moral truths, and since religious believers should not contradict the will of God, believers should not contradict the moral truths discovered by natural reason. Believers should, therefore, always have secular reasons that are sufficient, in themselves, to establish their religiously-inspired moral conclusions. Audi then argues that, if religious believers reflect on their corresponding secular reasons, they should also be moved by them. See Audi, Religious Commitment and Secular Reason, esp. pp. 124-27. This theological argument helps, I think, to explain Audi’s insistence on the wrongness, and even the irrationality, of giving others reasons one does not believe. I shall not attempt to evaluate Audi’s argument here, although it might be the kind of argument that could be developed through conjecture.
30. fn2929 I develop these grounds in Micah Schwartzman, Towards a Defense of Public Reason (unpublished dissertation manuscript); see also Quong, Liberalism Without Perfection, op. cit.
31. fn3030 I use “may” here advisedly, since it is not true that political liberals are necessarily obligated to engage in conjecture. Some comprehensive doctrines may be so unreasonable that it would be pointless or even degrading to attempt to argue from within them. I discuss this limitation in Part V below.
32. fn3131 For a prudential argument that supports, but does not require (how could it require?), giving public reasons, see, e.g., Mark Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999), pp. 88-91; Jeffrey Stout, Democracy and Tradition (Princeton: Princeton University Press, 2005), ch. 3.
33. fn3232 Rawls, “Public Reason Revisited,” p. 590. He writes, “The other [idea of toleration] is not purely political but expressed from within a religious or a nonreligious doctrine, as when, for example, it was said above [on p. 590] that such are the limits God sets on our liberty. Saying this offers an example of what I call reasoning from conjecture.”
34. fn3333 Ibid., p. 590 n. 46.
35. fn3434 Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (Syracuse: Syracuse University Press, 1990); see also Abdullahi Ahmed An-Na’im, Islam and the Secular State (Cambridge, MA: Cambridge University Press, 2008).
36. fn3535 See Khaled Abou El Fadl, “The Place of Tolerance in Islam,” Boston Review (January 2002); Mohammed Fadel, “The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence 21 (2008): 5-69.
37. fn3636 Michael Walzer, Interpretation and Social Criticism (Cambridge, MA: Harvard University Press, 1987), p. 39 (original italics).
38. fn3737 I discuss the second requirement below in Part IV.
39. fn3838 Abdullahi An-Na'im, “The Rights of Women and International Law in the Muslim Context,” Whittier Law Review 9 (1987), 491-516, at p. 501.
40. fn3939 An-Na’im writes, “Whether in relation to the rights of women, or any other aspect of Shari'a, a Muslim [can] be comfortable in his or her criticism of the establishment formulations of Shari'a and, more importantly, expect other Muslims to accept and act upon such criticism, depends on whether he or she can base the criticism on some provisions of the Qur'an and Sunna.” Ibid., p. 493.
41. fn4040 Ibid., see also, Abdullahi An-Na’im, “The Cultural Mediation of Human Rights: The Al-Arwam Case in Malaysia,” in Joanne R. Bauer and Daniel A. Bell, The East Asian Challenge to Human Rights (Cambridge: Cambridge University Press, 1999), pp. 151-59.
42. fn4141 Gibbard, Wise Choices, Apt Feelings (Oxford: Oxford University Press, 1990), p. 174. I should note here that Gibbard assumes that the speaker shares the norms of his audience. He writes, “[A]uthority of this kind is contextual, because it presupposes a context of shared norms” (p. 174, original emphasis). Gibbard does not consider the case of a speaker who claims contextual authority even though he does not share the norms of his audience. He refers instead to what he calls “Socratic influence.” This is when an audience does not accord the speaker authority but comes to accept what he or she says “not because the speaker accepts it, but on the basis of things they were prone to accept anyway if they thought along certain lines … Socratic influence, then, can work by assertion, so long as the assertions produce conviction solely by prodding listeners to work things out for themselves, on the basis of what they already accept” (174). I do not know whether Gibbard would think of reasoning from conjecture as a form of contextual authority or Socratic influence. Perhaps it falls somewhere in between them. At any rate, I have compared conjecture to contextual authority because they bear the structural resemblance of making moral demands based on reasoning from the audience’s perspective. Whether the audience accepts the speaker’s claim to contextual authority—that is, whether it accepts that the conjecturer has reasoned properly from its perspective—is, of course, a separate issue and may well be a matter of contention.
43. fn4242 Gibbard’s understanding of browbeating is more nuanced than this, but I think this is one way of capturing the point. See Gibbard, Wise Choices, Apt Feelings, pp. 173, 190-93. Gaus’ definition of browbeating is probably closer to the one described above. Cf., Gaus, Justificatory Liberalism, pp. 129, 320 n. 60.
44. fn4343 An-Na’im, “Rights of Women,” pp. 493, 514.
45. fn4444 Ibid., p. 515 (bracketed numbers added).
46. fn4545 Joseph Raz, “Morality as Interpretation,” Ethics 101 (1991), 392-405, at p. 396.
47. fn4646 Anecdotally, An-Na’im reports that, while lecturing in the Mauritius, he was “denounced as a ‘heretic’ in the press of some Islamic groups, and by imams and other speakers at local mosques, because I said that those formulations of sharia should not be enacted by the state since sharia discriminates against women. Some activists who claimed to speak in the name of the Muslim community in the country also called for me to be declared persona non grata in the country, citing financial support by the Ford Foundation for my work on Islamic family law as conclusive evidence that I was an agent of American imperialism seeking to undermine the stability of Islamic societies from within.” Abduallahi A. An-Na’im, “Islam and Human Rights: Beyond the Universality Debate,” American Society of International Law Proceedings (2000), 95-101, at p. 100.
48. fn4747 Gibbard, Wise Choices, Apt Feelings, p. 192.
49. fn4848 Andrew March’s recent work on Islam provides an excellent example. See March, Islam and Liberal Citizenship, op. cit.; Andrew March, “Liberal Citizenship and the Search for an Overlapping Consensus: The Case of Muslim Minorities,” Philosophy & Public Affairs 34 (2006), pp. 373-421; Andrew March, “Islamic Foundations for a Social Contract in Non-Muslim Liberal Democracies,” American Political Science Review 101 (2007), pp. 235-52.
50. fn4949 As Stephen Macedo writes, “Where, however, people disagree deeply about the way life should be lived, and in fact live very different lives reflecting these evaluative differences, it will be unreasonable to expect others to adopt our way of life in order for them to gain insight into the truths we believe that life discloses. Would we be willing to return the favor?” Stephen Macedo, “In Defense of Liberal Public Reason: Are Slavery and Abortion Hard Cases?” Natural Law and Public Reason, ed. R.P. George and C. Wolfe (Washington, DC: Georgetown University Press), pp. 11-50, at p. 26.
51. fn5050 This is not to say that citizens who espouse racist doctrines always reject the values of public reason. Perhaps people who hold some racist views can still be reasonable citizens. For more on this possibility, see Erin Kelly and Lionel McPherson, “On Tolerating the Unreasonable,” Journal of Political Philosophy 9 (2001): 38-55. They write: “Conceivably, though, someone could hold philosophically unreasonable views about race without believing that persistent patterns of political and social inequality are acceptable … Groups committed to a belief in their own superiority or righteousness could be careful not to claim privileges in political discourse” (p. 47). For criticism of Kelly and McPherson’s view of reasonableness, see Jonathan Quong, “The Rights of Unreasonable Citizens,” Journal of Political Philosophy 3 (2004): 314-55.
52. fn5151 I do not know what such arguments would look like. Perhaps they are an impossibility, in which case the point is moot.
53. fn5252 See Rawls, Political Liberalism, 64 n. 19; Rawls, “Public Reason Revisited,” pp. 574, 613.
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/content/journals/10.1163/174552412x628931
2012-01-01
2015-08-31

Affiliations: 1: University of Virginia School of Law, 580 Massie Road, Charlottesville, VA 22903, USA, mjs4d@virginia.edu

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