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Rawls and public reason V

November 22, 2016

As a way of closing this first section, Rawls elaborates his views on how the ideal of public reason should constrain the discourse and actions of public officials:

We must distinguish, however, between how the ideal of public reason applies to citizens and how it applies to various officers of the government. It applies in official forums and so to legislators when they speak on the floor of parliament, and to the executive in its public acts and pronouncements. It applies also in a special way to the judiciary and above all to a supreme court in a constitutional democracy with judicial review. This is because the justices have to explain and justify their decisions as based on their understanding of the constitution and relevant statutes and precedents. Since acts of the legislative and the executive need not be justified, in this way, the court’s special role makes it the exemplar of public reason (§6).

This perhaps responds to certain of the questions which we posed above but neither fully precludes further interrogation on the compartmentalizability of endorsements and voting nor specifies in what sense “representative” is to be taken. In any case, this is clearly not in the sense of the representative party to the original position whose task consists in promoting both the means to and promotion of the determinate good of those represented and for whom reasoning is constrained by limits of rational autonomy, i.e. with an eye to advancing a sense of the good rather than a sense of justice. For, at any point, the representative officer of the government will necessarily appeal to a sense of justice and reasonableness as well as general information on the society, both of which are unavailable to the representative party.

Whatever more might be said of the executive and the legislative, the judiciary poses a striking case. One could well concede to Rawls that the judiciary operates in accordance with an ideal of public reason, given its basis in constitutional essentials. On the other hand, there seems enough divergence in the opinions offered therein such that one might suspect that nonpublic reasons or background cognitive context may nonetheless apply in the juror’s decisionmaking. Certainly, one can typify the jurists’ rulings in light of not merely legal or juridical schools, but also in terms of social or cultural backgrounds. Regardless, the judiciary may remain an ideal case.

With this, the author transitions to the second section of the lecture wherein he shifts focus from government bodies to the notion of democratic citizenship in order to bring out how the need for cooperation and the ideal of public reason shape political justification between persons understood as citizens.

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