Political legitimacy in Rawls’ early and late political liberalism – Two diverging interpretations

Abstract

This article assesses Frank I. Michelman’s constitution-centered and proceduralist interpretation of Rawls’ conception of political legitimacy and argues that it merits attention because it highlights the institutional aspects of Rawls’ understanding of political legitimacy for constitutional democracies. However, the article also questions Michelman’s interpretation of Rawls’ ‘liberal principle of legitimacy’ (LPL) and the later ‘idea of political legitimacy based on the criterion of reciprocity’ (ILBR). As Michelman rightly points out, for the exercise of political power to be legitimate in a constitutional democracy, it must be in accordance with a constitution that is itself legitimate or reasonably acceptable to free and equal citizens. Yet, the article argues that Rawls’ two legitimacy formulations are attempts to make an additional point: Namely that when democratic citizens exercise political power in ‘the fundamental political issues’, or in issues that shape the basic justice of society or the essentials of the constitution itself, they must respect the ideal of public reason – or ensure themselves and other citizens that their exercise of political power is in accordance with the underlying basic political-moral ideas of persons and society that make the constitution itself acceptable to them. The LPL and the ILBR are conceptions of political legitimacy, not in the sense of setting up a criterion for when a specific law is legitimate, but in the sense of outlining civic or “office-specific” constraints that citizens and public officials must put on their reasoning and exercise of political power in the fundamental political issues for the practice of a constitutional democracy to be legitimate, or well-ordered, reasonably just, and stable for the right reasons – in the long run. The article also discusses why Rawls saw the need to reformulate the LPL, and how the later ILBR assigns a new significance to citizens’ actual use of public reason and their intersubjective deliberation.

In Constitutional Essentials (Michelman 2022), Frank I. Michelman examines the relevance of John Rawls’ political liberal conception of legitimacy for constitutional debates while ascribing to Rawls a conception of legitimacy that he encapsulates as ‘justification-by-constitution’. Michelman hinges this constitution-centered and proceduralist conception of legitimacy on Rawls’ formulation of ‘the liberal principle of legitimacy’ (LPL) outlined in the first edition of Political Liberalism (Rawls 1993). However, he also examines Rawls’ later articulation of ‘the idea of political legitimacy based on the criterion of reciprocity’ (ILBR) (Rawls 1996, 1997). At the heart of Michelman’s inquiry lies the question of whether this reformulation signifies a departure from Rawls’ initial understanding of legitimacy. Following an examination of various interpretations Michelman concludes that Rawls’ later formulation is best understood as an addition and specification of Rawls’ constitution-centered conception of legitimacy, rather than a departure.

This paper focuses on the merits of ‘justification-by-constitution’ as an interpretation of Rawls’ conception of political legitimacy, rather than its contribution to constitutional theory debates. I view ‘justification-by-constitution’ as an interesting interpretation deserving attention because it prompts Rawls’ interpreters to consider the constitution’s role in Rawls’ understanding of political legitimacy for a constitutional democracy. More generally, Michelman’s reading underscores the distinctly institutional aspects of how Rawls understands political legitimacy, making visible what Rawls saw as the practice-dependent or institutional logic of legitimacy, and Rawls’ understanding of legitimacy as a quality or achievement of rule-following practices or institutions. Legal scholars place considerable emphasis on institutional and procedural aspects when discussing the justification and legitimacy of specific political or legal acts and entities. But as Rawls himself lamented almost 70 years ago (Rawls 1999[1955]), political philosophers tend to apply the same general moral and rational standards when assessing the justifiability of an institution and when assessing the justifiability of acts within a practice and thus fail to grasp the distinctly practice-dependent or institutional nature of political justification. I take this to be crucial for understanding Rawls’ concept of legitimacy and Michelman’s interpretation rightly highlights this aspect. Despite this, I am not convinced that Michelman’s justification-by-constitution offers the most coherent and plausible interpretation of Rawls’ conception of political legitimacy.

The paper aims to bring out the difference between Michelman’s interpretation of the early LPL and the later ILBR and what I believe to be more compelling interpretations of these conceptions. Both the LPL and the ILBR are rather convoluted attempts at formulating a conception of political legitimacy. To get a grasp of their meanings – and in which sense they can be said to be conceptions of legitimacy at all – it is necessary to contextualize them within Rawls’ broader political liberal project. Yet, this political liberalism is itself hard to grasp firmly given the elusiveness of its two central ideas – the ‘idea of public reason’ and the concept of a ‘well-ordered society’. The paper also underscores that the content and function of these two central ideas changed significantly from what I will term Rawls’ early political liberalism in the first edition of PL (Rawls 1993) to his late political liberalism in ‘Introduction to the Paperback Edition’(Rawls 1996) and ‘The Idea of Public Reason Revisited’(Rawls 1997). ¹

The first part of the paper provides an analysis of Michelman’s justification-by-constitution-interpretation and outlines why I consider it an incomplete account of Rawls’ understanding of political legitimacy. The second part discusses our diverging understanding of the ILBR. Finally, I offer an interpretation of Rawls’ rationale for reformulating the LPL, followed by an examination of how his late political liberalism and late conception of political legitimacy assign new significance to citizens’ actual use of public reason and their intersubjective deliberation.

Justification-by-constitution: Michelman’s interpretation of Rawls’ early political liberalism and the ‘Liberal principle of legitimacy’

The problem of political liberalism

What problem does Rawls seek to address through his political liberalism? According to Michelman’s interpretation, the central concern is to establish a basis for justifying the authority and bindingness of law in a liberal democratic society where citizens are deeply divided by their religious, moral, and philosophical doctrines. ² In Rawls’ earlier work, A Theory of Justice (Rawls 1971), the central normative concept was justice. However, in Political Liberalism (Rawls 1993), Rawls shifts focus replacing justice with justification as the key normative concept. Michelman sees the new focus in Political Liberalism as the challenge of how democratic citizens can justify the legislative coercion they exert on one another (Michelman 2022, 2). Such justification must turn on acceptability and acceptance. As Michelman puts it, limitations of liberty must be willingly accepted and seen as justifiable or reasonably acceptable to those affected. However, in liberal democracies, majorities often impose laws on minorities who neither accept them nor see them as acceptable. How, then, can free and equal citizens who have not consented to the law – and who even see the law as repugnant – still see the law as justified and binding? (Rawls 1993, xvii). And how can government officials and citizens in the majority justify their legal impositions on citizens in the minority who disagree with the law and see it as repugnant?

The question of how coercive public justifications can be justified becomes particularly pressing within Rawls’ political liberalism due to political liberalism’s assumption of ‘the fact of reasonable pluralism’. This ‘fact’ refers to the assumption that reasonable citizens may affirm reasonable but incompatible comprehensive religious, moral, and philosophical doctrines, and that this is the normal outcome of political and social liberties (Rawls 1993, xvii.) Given this fact of reasonable pluralism, Rawls contends that no common ground for public political justification of legal impositions can be found in citizen’s religious, philosophical, or even their moral doctrines or doctrines of justice. Consequently, the crucial question arises: By what principles and ideas can coercive and collectively binding public laws be justified to free and equal citizens who dissent from them? Or put differently, how is legitimate and binding law possible in a liberal democracy under the conditions of reasonable pluralism?

Constitutionalism as the answer to the problem of political liberalism

On Michelman’s reading, constitutionalism, or an idea of ‘the constitution as a procedure of justification came in as a crucial part of Rawls’s answer to this problem’ (Michelman 2022, 7), by providing a ‘public platform for the justification of political coercion’ (2022, 1). Central in Michelman’s interpretation, is the idea that citizens – despite their disagreements about the merits of the laws, and despite their doctrinal divisions – ‘will have prevailing reasons to accept and respect as law the legislative outputs of the political order in force’ (2022, 5) insofar and because they are ‘assured that those outputs issue in conformity to certain instructions of policy contained in this higher-normative constitution to which we are now pointing’ (2022, 5). ³

Michelman finds support for this interpretation in the first edition of PL where Rawls formulates what he calls the Liberal principle of legitimacy (LPL):

“[o]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” (Rawls 1993, 217). ⁴

According to Michelman, the LPL turns the focus of justification away from ‘principles and values’ and moves it instead to ‘an institutional idea, namely, the idea of the constitution as a table of terms for a procedural deflection of substantive disagreements’(Michelman 2022, 21). ⁵ Justifying the binding nature of a given law to other citizens by arguing that the law is in accordance with the constitution, Michelman says, does not succeed by convincing other citizens that the specific law itself is worthy and deserving of their support (2022, 2). Rather, justification-by-constitution succeeds by way of a ‘procedural deflection’ (2022, 21). It turns the focus away from on-the-ground disagreements over laws and policies and shifts it, instead, to the question whether the laws or policies at issue are reconcilable with the constitution-in-force. In other words, the question of discussion is no longer whether the specific law or decision accords with substantive reasons, principles, and values, but simply whether the law or policy of concern is constitutional.

Yet, disagreements among the citizens about the constitutionality of a law can also arise. Hence, Michelman argues, Rawls saw the need for a ‘secondary proceduralization’ (2022, 33) the settlement of constitutional conflicts by a trusted arbiter and protector of the constitution, usually by a supreme court with review powers (2022, 22.) The test for justifiability has thus turned into an ‘objective’ test: ‘It is not what you and I or anyone or everyone believes it to be satisfied but just that it be satisfied’ (2022, 23). It is objective and public because the constitution-in-force is publicly legible and known to all, it is reasonably acceptable to all, and the meaning of the constitution is settled by an authoritative institution. The constitution-in-force thus functions as a ‘public basis of justification’ among free and equal citizens. It deflects substantive conflicts over values among citizens to an objective and publicly certifiable answer to the question of which laws are legitimate and binding and which are not.

Justification-by-constitution satisfies the collective duty of civility or duty to use public reason

Michelman reads the LPL as saying that demonstrating compatibility with the constitution-in-force fulfils the requirement of political justification, both for collective acts of government and for individual citizens’ voting, standing as candidates, etc. (2022, 23). In other words, he interprets Rawls’ view of citizens’ duty of civility –or their duty individually to justify their ‘input into the political process’ in a way that respects the limits of public reason – as a duty that is fulfilled ‘by showing that the contested law after all do comply with the country’s constitution in force’ (2022, 77).

Michelman is aware that Rawls’ characterizes the duty of civility quite differently, namely, as a duty to use public reason when justifying fundamental political decisions, or to decide such fundamental matters on the basis of a balance of political values pertaining to the issues, and in accordance with a reasonable political conception of justice. However, Michelman dismisses the idea that this ‘substantive’ public reason ideal engenders a genuine civic duty for individual citizens. When a reasonable constitutional pact is firmly in place, Michelman says, public reason is merely an aspirational ideal for ordinary citizens. It is only in moments of constitutional resettlement, or at ‘stages where democratic citizens notionally assemble to choose the contents going forward for their country’s body of constitutional laws’ that individual citizens have a civic duty to use substantive public reason (2022, 74).

Constitutional fidelity is another key aspect of public reason on Michelman’s reading of the first edition of Political Liberalism. Michelman posits that both public officials and private citizens must exhibit fidelity to the constitution for the sustenance of a well-ordered, reasonably just and stable liberal democracy wherein citizens abide by legitimate law despite their moral disagreements. Constitutional fidelity is here understood as fidelity to a pre-scripted restriction on their ordinary politics as laid down in the constitution-in-force and authoritatively interpreted by the Supreme Court, which also safeguards the constitution against legislative measures that may undermine its essentials (2022, 71ff).

Some objections to the justification-by-constitution reading

Michelman presents an interpretation that has several attractive qualities. Foremost among these is the recognition that, for Rawls, the legitimacy of a particular ordinary law is not primarily a question about its justice. In contrast to the legitimacy of the constitution or the basic rules or the regime itself, the legitimacy or justifiability of an ordinary law within the constitutional regime is determined not solely or primarily by its inherent moral and rational merits, but rather by its justifiability and fit within the given legitimate constitutional regime. Political philosophers who interpret Rawls often overlook this, and Michelman appropriately highlights its importance. However, despite the strengths of Michelman’s interpretation, I contend that it does not provide the best reading of Rawls in Political Liberalism. How so?

Interpretation of the Liberal principle of legitimacy

The LPL, we saw above, stipulates that ‘[o]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational’ (Rawls 1993, 217). ⁶ Rawls is here saying that citizens and public officials must exercise political power in accordance with the constitution, as Michelman observes correctly. It is nevertheless important to stress the qualification that the LPL adds: Exercise of political power is proper only when exercised in accordance with a constitution that is such that citizens as free and equal may reasonably be expected to endorse its essentials in light of principles and ideals acceptable to them as reasonable and rational. (1993, 217). In other words, our exercise of political power is only legitimate or proper in a constitutional democracy if it is in accordance with a constitution that conforms to a political conception of justice that citizens can accept in an overlapping consensus.

This reading is supported by several passages in Political Liberalism. Rawls writes for example: ‘[O]nly a political conception of justice that all citizens might be reasonably expected to endorse can serve as a basis of public reason and justification’(Rawls 1993, 137). ⁷ There is no mention of the constitution here. Note also that in the sentence following immediately after the LPL he continues: ‘And since the exercise of political power itself must be legitimate, the ideal of citizenship imposes a moral, not a legal, duty – the duty of civility – to be able to explain to one another on those fundamental questions how the principles and policies they advocate and vote for can be supported by the political values of public reason” (Rawls 1993, 217). ⁸ These passages seem to directly contradict Michelman’s deflective and proceduralistic justification-by-constitution interpretation and show that public political justification for Rawls is substantive and includes a direct appeal to values and normative political ideas and conceptions.

Constitutional consensus is not enough

Another argument against justification-by-constitution is that Rawls explicitly says that a constitutional consensus among citizens is not enough to ensure a sufficiently just, stable, and well-ordered constitutional democracy over time (Rawls 1993, 165f). A ‘well-ordered society’ or well-ordered regime is one in which the basic or legitimating ideas and values of the regime are also effective in regulating the basic structure of the regime, and where this is accepted and known by the participants (Rawls 1971, 4). Rawls argues that a constitutional democracy can only be sufficiently just, stable and well-ordered over time insofar as a constitutional consensus develops into an overlapping consensus among citizens regarding political justice or into ‘a family of political liberal conceptions of justice’ that all citizens can accept as reasonable (Rawls 1993, 164). Overlapping consensus means that citizens accept the political conception, but in different ways and to different degrees from within their various comprehensive doctrines and worldviews.

An overlapping consensus on a political conception of political justice for a constitutional democracy yields a public basis of public justification that is deeper and broader than a constitutional consensus. ⁹ It is deeper in the sense that it provides an interpretation of the nature of the relationship between the citizens and the nature of their society. It renders explicit the principles and properties required for the constitution itself to be worthy of our support and obedience and for procedures and laws enacted in accordance with it to be sufficiently just. In short, it sets a standard for what is politically-morally ‘reasonably acceptable’ in the regime. For a political conception of justice to be accepted in an overlapping consensus in a (liberal) constitutional democracy, Rawls says, it must be ‘worked out’ (1993, 127) or ‘worked up’ (1993, 38, fn. 41) from the basic ideas and political ideals that are ‘implicit in the public political culture of a democratic society’. The constitution or basic laws, and their tradition of interpretation, are at the core of this public political culture. However, Rawls takes the public political culture to also include historical documents and widely known political writings. As we have seen, Rawls thinks that the most basic among the political-moral ideas and ideals expressed in these sources are the ideas of society as a fair system of cooperation over generations and persons as free and equal (1993, 15f). ¹⁰

Another reason why a deeper and broader consensus in the form of an overlapping consensus is necessary to guide political decision-making, Rawls says, is that ‘new and fundamental constitutional problems inevitably arise, even if only occasionally’ (Rawls 1993, 165). And to address these a mere constitutional consensus falls short. In Rawls’ own words: A ‘constitutional consensus at the level of principles viewed apart from any underlying conception of society and citizen – each group having its own reasons – is a consensus taken literally. As such, it cannot offer the deeper conceptual guidance required when the constitution itself should be amended and interpreted’ (1993, 164). Citizens who only agree in a ‘purely political and procedural constitutional consensus’ will also lack sufficient unity and cohesiveness to enact the legislation beyond equal political rights, or ‘to cover the remaining constitutional essentials and basic matters of justice, and conflict will arise about these’ (1993, 164).

Supreme Court as the exemplar of public reason

One passage in Political Liberalism that may seem to support Michelman’s interpretation is the famous passage that portrays ‘the supreme court [in regimes with judicial review] [as] the branch of government that serves as the exemplar of public reason’ (1993, 231). However, this phrase should not be taken to mean that public reason, as exercised by citizens, is exhausted by constitutional law and a proceduralistic mode of justification-by-constitution. Nor does it mean that the reasoning of the supreme court is the public reason of the citizenry. A footnote to the characterization of the supreme court as the exemplar of public reason adds an important qualification: ‘This is not a definition’, Rawls, writes, “I assume that in a well-ordered society the two more or less overlaps” (1993, 231, fn.11). Consider also an important observation he makes in an earlier passage of PL: In a constitutional system with judicial review, Rawls says,

“…it will be necessary for judges or the officers in question, to develop a political conception of justice in the light of which the constitution, in their view is to be interpreted and important cases decided. Only so can the enactments of the legislature be declared constitutional or unconstitutional; and only so have they a reasonable basis for their interpretation of the values and standards the constitution ostensibly incorporates.” (Rawls 1993, 164–5, my emphasis). ¹¹

Judges’ political conceptions of justice often play an important role in public political reasoning and justification, according to Rawls, but this does not amount to a procedural deflection to the Constitution.

Political legitimacy is also institutional

Rawls indeed asserts that in a constitutional democracy, an ordinary law or political act is only politically legitimate if it is in accordance with the constitution. Rawls also says that legitimate law-making must comply with constitutional procedures and constraints. On both these counts, Michelman’s interpretation is undoubtedly accurate. Moreover, Michelman is correct in emphasizing the significance of widespread acceptance of the constitution as sufficiently just or ‘justification-worthy’. These are critical insights that many interpreters of Rawls have previously overlooked. My point, however, is that for Rawls justification-by-constitution alone does not suffice as a justification for the legitimate exercise of political power in the fundamental political questions. That is, when the interpretation and shaping of the constitution and the basic structure of society is itself at stake. Justification-by-constitution and constitutional fidelity, as understood by Michelman, are thus not sufficient for ensuring that a constitutional democracy is well-ordered, reasonably just and stable in the long run.

Which legitimacy question is Rawls trying to address with LPL?

As we have seen, Michelman interprets Rawls’ political liberalism as an answer to the question of the legitimacy or justified bindingness of law in a constitutional democracy under conditions of reasonable pluralism. In my reading, however, the main question of legitimacy which Rawls addresses with both the LPL and the later ILBR is rather this: What is the proper or legitimate way for citizens to exercise political power when fundamental political questions are at stake? This question connects with further questions about legitimacy such as: What does it take for a constitutional democracy to be well-ordered, reasonably just and stable in the long run? and What criteria must the constitution and basic structure meet to be sufficiently just and legitimate? The LPL, I submit, addresses these questions and does not conceptualize a criteria for determining or justifying the legitimacy or bindingness of specific ordinary laws.

Rawls posits that citizens’ and public officials’ commitment to an ideal of citizenship that includes the ideal of public reason are prerequisites for a well-ordered and reasonably just constitutional democracy in the long run. The LPL is satisfied insofar as political acts and justifications in fundamental matters can be supported by a balance of political values that is reasonable from the point of view of a public political conception of justice that citizens can accept in an overlapping consensus. If citizens and public officials do not constrain their reasoning and decisions to what is compatible with the ideal of public reason when the fundamental matters – constitutional essentials and matters of basic justice – are decided, then the basic structure and constitutional framework will gradually fall into decay. The justice of the constitution and the democratic procedure will be weakened, and political outcomes will increasingly conflict with the basic idea of the regime. Specific laws and decisions will then no longer be ‘almost always’ legitimate (Rawls 1995, 429). As Rawls succinctly puts it in later writings: ‘no institutional procedure without such substantive guidelines for admissible reasons can cancel the maxim “garbage in, garbage out” (1995, 431). At some point, the political relation will no longer be recognizable as a fair system of cooperation among free and equal citizens, and a constitutional breakdown or revolution will effectively have taken place (Rawls 1993, 239).

Rawls’ late political liberalism and the ‘Idea of political legitimacy based on the criterion of reciprocity’

Michelman’s reading of the ILBR

In ‘Introduction’ and ‘Revisited’ Rawls presents a reformulation of the LPL:

“[T]he idea of political legitimacy based on the criterion of reciprocity says: Our exercise of political power is proper only when we sincerely believe that the reasons we would offer for our political actions –were we to state them as government officials– are sufficient, and we also reasonably think that other citizens might reasonably accept those reasons. This criterion applies on two levels: one is to the constitutional structure itself, the other is to particular statutes and laws enacted in accordance with that structure. Political conceptions to be reasonable must justify only constitutions that satisfy this principle.” (Rawls 1997, 771) ¹²

Having considered different interpretations of this reformulation Michelman finally concludes that the ILBR is an addition to the LPL, and not a replacement (Michelman 2022, 108). According to Michelman, Rawls still thinks that the proper and sufficient way to publicly justify a legal imposition in a pluralistic constitutional democracy is to show that the legal imposition has been made in the right way in accordance with the constitution in force. What the ILBR does, argues Michelman, is to make explicit an additional requirement for how citizens should justify their political stances and activities, namely a requirement of their ‘sincere beliefs in a supported policy’s or statute’s wide compatibility with the constitution-in-force and then in that constitution’s justification-worthiness as thus applied’ (2022, 108). Yet, this criterion of reciprocity, Michelman says, is normally satisfied ‘with a sincere belief in the court’s actual or expected confirmation of the law’s wide compatibility with the constitution in place, consistent with some understanding thereof that the citizen feels able to confirm as an at-least reasonable one’ (2022, 123, my emphasis).

So, in the end, Michelman does bring into the picture ‘some understanding’ of the substantive basic ideals, values and principles that citizens read into the constitution as their basis for seeing it as sufficiently just or worthy of their acceptance. If the background political culture has a sufficiently shared notion of what is politically reasonable, Michelman says, and if each citizen when presenting their justification in public reason relies on this notion of the politically reasonable, then this background political culture will be ‘capable of sustaining a condition of political-moral publicity for our society, and thereby also a platform for proceduralistic justification of political acts of kind envisaged by LPL’ (Ibid).

One final comment on Michelman’s understanding of the wording of the ILBR. Michelman reads the ILBR as applying to all political matters, and this is one of his reasons for dismissing that the ILBR expresses an individual civic duty. The ILBR cannot be both an individual civic duty and apply to all political matters, Michelman argues, because this would entail a ‘totalization of public reason’ (2022, 109f). However, on my reading, the ILBR, as stated in ‘The Idea of Public Reason Revisited’, says that the criterion of reciprocity ‘applies to particular statutes and laws’ (Rawls 1997, 771, my emphasis). It does not say that the criterion of reciprocity applies to all statutes and laws, or ordinary statutes and laws generally. On my reading, the ILBR says that the duty to use public reason applies when fundamental political questions are decided, and this refers to political questions relating to the constitutional structure itself and to those ‘particular statutes and laws’ that touch on questions of basic political and social justice – since these are fundamental but not constitutional (Rawls 1996, xliv). In ‘The Idea of Public Reason Revisited’ Rawls also says explicitly, and in numerous places, that the ideal of public reason applies in the fundamental political questions which include questions of basic political and social justice (Rawls 1997, 767, fn.7, 777, 800).

My reading of the ILBR

I think that we can best interpret the meaning of LPL and the ILBR when we read them in light of Rawls’ consistent endeavor to conceptualize the ‘office of the citizen’ (Rawls 1996, liii) in a constitutional democracy under conditions of reasonable pluralism. Specifically, I view these formulations as attempts to conceptualize the notion of public reason, or the proper way for citizens and public officials to reason when they exercise political power over other citizens in fundamental political questions. But how, exactly, can formulating an ideal of public reason for lay citizens and citizens serving in specific public offices, amount to formulating a ‘principle’ or ‘idea of political legitimacy’? As we have seen, Rawls emphasizes the incremental impact citizens’ and public officials’ reasoning and decisions in the fundamental political cases have – over time – on the basic structure and fundamental institutions of society, including the constitution itself (Rawls 1996, xlix). Rawls thinks that their use – or non-use – of public reason when deciding on these questions over time will connect intimately with whether the basic structure of society coheres with the basic moral-political ideas of persons and society which a constitutional democracy is set up to realize (1996, xlix, fn.24). His idea is that public reason, or the political practical reason of the office of citizens in a constitutional democracy, must be so that the acts and public justifications of citizens do not undermine the basic normative ideas and values of a constitutional democracy or the basic moral and rational reasons we have for accepting this type of regime.

The point of having a constitutional democracy is not the given constitutional pact itself, although this pact contains the constitutive rules of the practice and will often include a preamble or other passages outlining its basic ideas, values and purposes. The basic purpose or point of combining liberal constitutionalism and popular sovereignty, according to Rawls, is that this seems to be the best way we have to enable a fair system of cooperation among free and equal citizens. This, Rawls argues, is a political-moral idea – or set of ideas – that entail ideas and ideals of reciprocity, mutuality and reasonableness. ¹³

So, with LPL Rawls endeavored to conceptualize necessary conditions for the basic structure of a constitutional democracy to remain sufficiently in accordance with the political-moral ideas that he takes to be basic in and for constitutional liberal democracies, and necessary for this type of regime to be stable ‘for the right reasons’ in the long run and under new and changing circumstances.

Why then did Rawls see the need for reformulating the LPL?

On my reading Rawls reformulated the LPL because he no longer deemed the conception of a well-ordered constitutional democracy he had presupposed in the first edition of Political Liberalism, to be sufficiently realistic. In the first edition, Rawls had assumed that all reasonable citizens will accept the effective regulative political conception of justice as the most reasonable political conception for the regime. He also assumed that all reasonable citizens would accept it, to varying degree, from within their different comprehensive doctrines forming an overlapping consensus. The first edition of Political Liberalism also presumed the fulfilment of the ‘full publicity condition’ (Rawls 1993, 66ff) meaning that the effective regulative conception of political justice was not only known to citizens but also known to be known. Additionally, all reasonable citizens would recognize the sufficient justice of their basic structure, including the constitution. Furthermore, they would agree on how society works and their respective bases of full support for the effective regulative conception are at least accessible. And finally, all citizens would adopt the same political liberal conception of justice as the basis for public reason. In such a well-ordered constitutional democracy, the outcomes of the democratic procedure will ‘almost always be legitimate’, though not always fully just. In such a context one can speak of procedural democratic legitimacy (Rawls 1995, 429), and public justification of ordinary laws can thus safely ‘run through the constitution’ or rely on proceduralistic justification-by-constitution, as Michelman puts it. Yet, as I argued in the first part of this paper, Rawls’ early political liberalism did not see prodecuralistic justification-by-constitution as sufficient when fundamental political issues have to be decided.

In ‘Introduction to the Paperback Edition’ (Rawls 1996) and ‘The Idea of Public Reason Revisited’ (Rawls 1996) Rawls argues that it is both unrealistic and unreasonable to expect all reasonable citizens to accept the same political conception of political justice as the most reasonable. In these late texts, he espouses a more radical version of ‘the fact of reasonable pluralism’, one which says that reasonable citizens can be expected to affirm different and irreconcilable political conceptions of justice as the most reasonable. Rawls now conceives a well-ordered, reasonably just and stable constitutional democracy as one in which the effective regulative conception is a reasonable conception of justice, albeit not necessarily the most reasonable conception and only some reasonable citizens will consider it to be the most reasonable (Rawls 1996, xlviii). We now understand that Rawls’ early LPL conception had to be reformulated because it presupposes a well-ordered constitutional democracy that the later Rawls has come to see as unrealistic. The shift to recognizing a pluralism of reasonable political conceptions of justice in a well-ordered constitutional democracy forced Rawls to make several changes in his later texts, changes that are so important that they in my view warrant that we speak of this as Rawls’ late political liberalism.

Rawls’ late political liberalism steps away from the idea that all reasonable citizens in a well-ordered or reasonably just, stable, and legitimate constitutional democracy will affirm the effective regulative conception of political justice as the most reasonable, yet it assumes that all reasonable citizens will affirm the effective conception of political justice as reasonable, even if ‘barely so’ (Rawls 1997, 770). The further apart the citizens’ understanding of the most reasonable political conception of justice is, the less well-ordered will be the regime and the more challenging it will be to find a public political reason and public justifications of policies and statutory impositions that are reasonably acceptable to all as free and equal citizens. ¹⁴

What does the ILBR say?

So, how does the ILBR fit into this new terrain? ILBR with its criterion of reciprocity says that citizens and public officials who exercise political power in fundamental political questions properly exercise their power when they use public reason, or ensure that the stances and actions they support are reasonably acceptable to other citizens as free and equal. In short, this means that citizens and public officials must ensure that their stances and actions can be justified with reasons and reasoning that are accessible and reasonably acceptable to other citizens and that the stances are compatible with a political conception of justice that they sincerely reasonably think that other citizens who accept the basic ideas of a constitutional liberal democracy can also accept.

The ILBR does not say that citizens should reason in terms of the values and guidelines of Justice as fairness or some other political conception of justice that Rawls or other philosophers or philosophical accounts take to be reasonably acceptable to citizens as free and equal. For citizens to act properly, contends the ILBR, they should decide based on what each sincerely believes to be the most reasonable balance of relevant political values that pertain to the issue, and check whether this balance is in accordance with what he or she sincerely believes to be the most reasonable political conception of justice for a constitutional democracy (Rawls 1997, 769). Put more precisely, a citizen must sincerely believe that the balance of political values which they are acting on coheres with the most reasonable principled conception of the idea of a fair system of cooperation among free and equal citizens, a balance of political values that would also yield a constitution that other citizens can accept as reasonable. As Rawls also puts it: citizens, even when not elected or a public official, should ‘ideally think of themselves as if they were legislators and ask themselves what statutes, supported by what reasons satisfying the criterion of reciprocity they would think it most reasonable to enact’ (Rawls 1997, 769). As elsewhere in Rawls’ writings, ‘reasonable’ here means mutually acceptable or satisfying the criterion of reciprocity among free and equal citizens.

Shift to first-person perspective, and then intersubjective deliberation

What we see with the ILBR is an important shift to the first-person perspective, a shift away from the presumption that Justice as fairness, or some similar hypothetical and philosophical account of justice, sets the standard of adequate political justice that all citizens would or should accept if they were fully rational and reasonable. It is a shift to what each sincerely believes to be the most reasonable balance of political values and the most reasonable political conception for this regime or this type of regime. Thus, for a citizen’s political conception to be reasonable, it must yield a reasonably coherent, complete and principled interpretation of the political character of the regime. It must explain how best to understand fair cooperation among free and equal citizens over generations. So, the first-person perspective is a distinctly political-moral first-person perspective. It is oriented towards understanding the political-moral ideal which informs the point of having the particular form of regime we call a (liberal) constitutional democracy, a political-moral ideal that is implicit in the constitution and familiar to all citizens belonging to the public political culture prevalent in this type of regime.

Legitimacy through deliberation

However, on my reading, it is crucial to see that Rawls does not stop at this political-moral first-person perspective. Rather, he expects citizens’ sincere political-moral beliefs about reciprocally acceptable terms of cooperation – when presented as public justifications for their political actions and stances – to feed into an actual public political process of justification, discussion and deliberation. In this actual process of justification, the offering of first-person sincere beliefs is met with responses and discussion and tested intersubjectively among real citizens.

In Rawls’ late political liberalism, the process of offering political-moral justifications from the political-moral first-person perspective and the subsequent intersubjective deliberation over the reasonable acceptability of these justifications by actual citizens is itself part and parcel of what makes the political exercise of power and its outcomes legitimate. This is clear from a passage in ‘The Idea of Public Reason Revisited’ that directly precedes the ILPR formulation:

“Thus when, on a constitutional matter or matter of basic justice, all appropriate government officials act from and follow public reason, and when all reasonable citizens think of themselves ideally as if they were legislators following public reason, the legal enactment expressing the opinion of the majority is legitimate law. It may not be thought the most reasonable, or the most appropriate, by each, but it is politically (morally) binding on him or her as a citizen and is to be accepted as such. Each thinks that all have spoken and voted at least reasonably, and therefore all have followed public reason and honored their duty of civility.” (Rawls 1997, 770–771).

This passage expresses much of that which Rawls subsequently sums up in ILBR. What the ILBR then adds, is that the use of public reason and the subsequent intersubjective deliberative process should not start from some given political conception of political justice claimed to be the most reasonable political conception for free and equal citizens, such as ‘Justice as fairness’. It rather starts with citizens and public officials checking that their balance of political values on a fundamental political issue, can be justified in light of their respective political-moral first-person sincere beliefs about what is the most reasonable interpretation of the ideal of fair cooperation among free and equal citizens, and with their willingness to justify their stances on this basis to other citizens. This ideal of public reason, however, does not prevent citizens and public officials from taking inspiration from the reasoned judgements of a supreme court. Or from politicians, philosophers, or even church leaders insofar as they can offer coherent and convincing interpretations and conceptions of political justice that cohere with the basic idea of a fair system of cooperation between citizens as free and equals.

In his later texts Rawls is also more explicit about how ‘the ideal of a just constitution is always something to be worked toward’ (Rawls 1995, 401). A constitution is not a fully fixed framework of politics and public justifications in a liberal constitutional democracy, but an unfinished project, a fragile, fallible and revisable undertaking (1995, 401). In his late political liberalism, Rawls also seems to expect a more active role for ordinary citizens in the fuller realization and better institutionalization of constitutional democracies’ basic ideas and values (1995, 400). ¹⁵

ILBR is not a criterion for assessing the legitimacy of a specific law

When read in isolation, both the passage from ‘The Idea of Public Reason Revisited’ cited above, and the ILBR can be interpreted as a criterion of the legitimacy of a particular law or policy. Yet, on a wider reading, we see that Rawls is not saying that a particular law or policy is legitimate and political-morally binding only insofar as it has been made in a democratic process where all have used public reason and where there has been a subsequent process of intersubjective deliberation. The ILBR is rather a conceptualization of legitimacy in the sense that it posits citizens’ and public officials’ use of public reason as necessary for upholding the legitimacy of a constitutional democracy in the long run. If citizens lack awareness of the importance of restricting their political decision-making in fundamental political questions to what is consistent with recognizing other citizens as equals, and if they vote in the fundamental political issues based merely on their self-interest, prejudices or comprehensive doctrines – and fail to hold their elected leaders accountable when these leaders decide on fundamental issues on such a basis – then the outcomes and the basic structure of the regime will gradually cease to be sufficiently politically just or sufficiently in accordance with the basic ideas of a fair system of cooperation among free and equal citizens.

A new conception of a well-ordered constitutional democracy

A well-ordered constitutional liberal democracy in Rawls’ late political liberalism no longer requires that citizens share the same conception of political justice, nor that the effective regulating conception of justice is one that citizens accept as the most reasonable. It is assumed though, that all reasonable citizens accept the basic idea of society as a fair system of cooperation among free and equal citizens, and that all reasonable citizens can see the effective regulative conception of justice as politically reasonable, ‘even if barely so’ (Rawls 1997, 770). Rawls’ late political liberalism also stresses that a well-ordered constitutional democracy must be a well-functioning deliberative democracy. In a deliberative democracy citizens deliberate in the sense that ‘they exchange views and debate their supporting reasons concerning public political question’ (1997, 772), and citizens also ‘suppose that their political opinion may be revised by discussion with other citizens’ (1997, 772). Most crucially, reasonable citizens recognize the importance of using public reason when they reason about constitutional essentials and matters of basic (political) justice (1997, 772). Rawls’ late political liberalism also put more emphasis on the institutional prerequisites for a well-functioning deliberative democracy, such as the public financing of elections and widespread education in the basic aspects of constitutional democratic government for all citizens (1997, 722).

A more reflexive political philosophy?

On my reading the changes from LPL to ILBR follow from Rawls’ turn to a more radical understanding of the fact of reasonable pluralism and to a more realistic conception of a well-ordered constitutional democracy. However, I also understand the ILBR reformulation as a result of Rawls gradually coming to see the need for his political philosophy to methodologically reflexively catch up with its subject matter: If a constitutional democracy is understood as cooperation among free and equal citizens, its standard of political legitimacy cannot be externally imposed on these free and equal citizens. A proper political philosophy for a constitutional democracy under conditions of reasonable pluralism cannot commence with fixed principles of fair cooperation developed in an abstract hypothetical thought experiment. Philosophers and supreme court justices may offer inspiration and chime in, but they do not have a more privileged role than other citizens in determining what is a reasonable or reciprocally acceptable interpretation of the basic political relation among citizens in a liberal constitutional democracy.

Final reflections

In this article, I have concentrated on areas where my interpretation of Rawls diverges from Michelman’s justification-by-constitution reading. However, I want to re-emphasize that Michelman offers an interesting and challenging interpretation that aids in grasping Rawls’ claim that ‘legitimacy is also institutional’ and corrects some blind spots in philosophers’ interpretations of Rawls. Some of the interpretative disagreements I have identified in this paper may stem from a failure on my part to understand some of Michelman’s arguments. Others seem to stem from different starting points in our interpretation of Rawls. Michelman begins with the first edition of Political Liberalism and examines whether his ‘justification-by-constitution’ interpretation remains valid in light of Rawls’ later texts on political liberalism. In contrast, my approach has been to ‘read Rawls backward’, seeking the most coherent understanding of Rawls’ conception of political legitimacy starting from his later texts. As a legal scholar and writing primarily for a legal audience, Michelman also interprets Rawls with a focus on the relevance of political liberalism for constitutional debates, leading him to emphasize the role of courts and the constitution as a legal entity. The focus of my interpretation, on the contrary, has primarily been the office of citizens. Even so, engaging with Michelman’s Constitutional Essentials has changed my understanding of Rawls and alerted me to the importance of spelling out the institutional aspects or ‘institutional logic’ in Rawls’ way of thinking about political legitimacy and how this connects with the ideal of public reason.