In his paper, “The Right of the Guilty,” Corey Brettschneider aims to develop and defend a theory of punishment within the framework of a liberal-contractarian conception of political legitimacy. My response argues that this attempt to extend the liberal-contractarian theory reveals, in a particularly clear and striking manner, deep and ultimately insurmountable conceptual difficulties for that theory.
See especially John Rawls, Political Liberalism ( New York: Columbia University Press, 1993); T.M. Scanlon, “Contractualism and Utilitarianism ,” in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982); and T.M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998). Other versions of liberal contractarianism can be found in the works of Brian Barry, Thomas Nagel, Samuel Scheffler, and (arguably) Jürgen Habermas.
2.
Rawls, Political Liberalism , 137.
3.
See Frank Lovett , “Can Justice Be Based on Consent?” Journal of Political Philosophy12, no. 1 (2004): 79-101.
4.
Following the usual convention, my discussion will be framed in the language of what people would or would not “reasonably reject,” rather than what they might reasonably accept, though (pace Scanlon and some others) I don't think this matters.
5.
Note that the hypothetical nature of the question does not bother me, as it has others: see especially Ronald Dworkin, “The Original Position” (1973), in Reading Rawls, ed. Norm Daniels (Stanford, CA : Stanford University Press, 1989 ). For a reply to Dworkin's famous complaint, see Cynthia Stark, “ Hypothetical Consent and Justification,” Journal of Philosophy97 (2000): 313-34.
6.
Or, at any rate, not unless they are prepared to accept the view that thinking about consent is a mere heuristic device, in which case its value as such should be openly discussed.
7.
As Ian Shapiro writes, “[O]ne person's consensus is often another's hegemony.” Ian Shapiro, Democratic Justice (New Haven, CT: Yale University Press, 1999), 14.
8.
This is an instance of what is called the “discursive dilemma,” which is itself only one example of the general problem that individually reasonable or rational beliefs do not always aggregate into collectively reasonable or rational beliefs. For a recent review, see Christian List, “ The Discursive Dilemma and Public Reason,” Ethics116 (2006): 362-402.
9.
For example, see Josh Cohen, “Deliberation and Democratic Legitimacy ” (1989), in Deliberative Democracy, ed. James Bohman and William Rehg ( Cambridge, MA: MIT Press, 1997), 81-82.
