- 3. Public reason
1.) Three-part justification
In what way do the three phases of justification complement the four-stage sequence? In truth, they arise from the need to work between the different political conceptions issuing therefrom. Contrary to Rawls’ argumentation in the third part of A Theory of Justice, wherein the author attempts to show that a society accepting a liberal, constitutional conception of the two principles of justice would be stable and self-sustaining, not all persons will come to such a conception at the issue of the four-stage sequence and so the argumentation hinges on a contentious premise. Thus, it will be necessary to show what shape life in society will take between persons arriving, through the four-stage sequence, either at different political conceptions or at the same political conception but for different reasons. In other words, we find ourselves asking, as Rawls does: “How is it possible that deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime?”. Put still differently, given the fact of reasonable pluralism in contemporary society, by what means do the persons professing those reasonable comprehensive doctrines come to affirm a political conception of a constitutional regime in line with the family of conceptions issuing from the four-stage sequence and justify that conception to others?
Rawls’ answer consists in delineating three distinct phases of justification: “first, pro tanto justification of the political conception; second, full justification of that conception by an individual person in society; and finally, public justification of the political conception by political society”. Each of these phases introduces a proper forum, relevant criteria and an appropriate standpoint to adopt when justifying the selection of a political conception. In addition, each phase operates in accord with notions developed elsewhere in Rawls’ work: pro tanto justification with public reason and legitimacy; full justification with comprehensive doctrines and overlapping consensus; public justification with stability for the right reasons. Thus, a review of the three phases will not only lend clarity to what becomes of a political conception following the decisionmaking procedure but will also allow us to isolate the precise moment at which the aforementioned notions intervene in the justificatory process.
 PL, p. xviii. For discussion of reasonable comprehensive doctrines and reasonable pluralism, see _____.
 PL, p. 386. It should be noted that one could reasonably object that we here misrepresent Rawls’ approach in that the presentation of three-part justification comes not as a response to the question of reasonable pluralism but to questions put Rawls by Habermas on, one, the relation between overlapping consensus and political conceptions and, two, the meaning of the term “reasonable”. To answer the objection, we think it enough to point out the extent to which both lines of questioning share the same concerns, worded in different ways. In short, both deal with the relation between a political conception and comprehensive doctrines and the terms on which that relation is established and maintained, in such a way that there is little worry of misrepresentation, except at the level of text.
 PL, pp. 386-7.
Put differently, this explains our insistence on distinguishing between the person occupying a standpoint and the standpoint itself. The person occupying the standpoint accepts the standpoint’s constraints and deliberates and justifies in accordance therewith. To which we must add that the person can abstract at any point from the standpoint to come back on the sequence as a whole without taking the standpoint’s constraints with her. Certainly, the judge standpoint has fewer constraints on information and knowledge available to deliberation and justification, but it still accepts, at least in part, the results of the preceding stages, all of which the person, you or me, outside of that standpoint are free to reject.
This point recalls that which we made at the outset of the exposition of the four-stage sequence, namely that the four-stage sequence is a device of representation or an abstraction. For our benefit, Rawls reminds the reader of just this when he closes §31 in remarking:
It is essential to keep in mind that the four-stage sequence is a device for applying the principles of justice. This scheme is part of the theory of justice as fairness and not an account of how constitutional conventions and legislatures actually proceed. It sets out a series of points of view from which the different problems of justice are to be settled, each point of view inheriting the constraints adopted at the preceding stages. Thus a just constitution is one that rational delegates subject to the restrictions of the second stage would adopt for their society. And similarly just laws and policies are those that would be enacted at the legislative stage.
In other words, the four-stage sequence consists in a manner of rendering the principles of justice arrived at in the original position more concrete and readily applicable to the kinds of deliberation and justification which the person is likely to encounter outside of the decisionmaking procedure. In this way, the procedure issues in a relatively determinate political conception with which the person may then confront the society in which she finds herself and remain assured that her basis for doing so remains objective and autonomous.
This answer anticipates one question that the reader might put Rawls: what is the person to do with the political conception which she has formulated with the aid of the four-stage sequence? As suggested, she would make use of such in her deliberation and justification of different positions with regard to the society in which she lives. One may further suppose that her deliberation and justification will confront that of others who have similarly arrived at a political conception through the four-stage sequence. Yet nothing suggests that the other persons will have arrived at the same political conception, even in following the same decisionmaking procedure, i.e. the four-stage sequence. The author allows for just such a possibility, all the while turning it to his advantage.
Of course, this test is often indeterminate: it is not always clear which of several constitutions, or economic and social arrangements, would be chosen. But when this is so, justice is to that extent likewise indeterminate. Institutions within the permitted range are equally just, meaning that they could be chosen; they are compatible with all the constraints of the theory. Thus on many questions of social and economic policy we must fall back upon a notion of quasi-pure procedural justice: laws and policies are just provided that they lie within the allowed range, and the legislature, in ways authorized by a just constitution, has in fact enacted them. This indeterminacy in the theory of justice is not in itself a defect. It is what we should expect. Justice as fairness will prove a worthwhile theory if it defines the range of justice more in accordance with our considered judgments than do existing theories, and if it singles out with greater sharpness the graver wrongs a society should avoid.
On that count, the question resembles that which we asked of reflective equilibrium above and to which we answered, with Rawls, that a range of variation is admissible so long as the points on that range meet certain conditions and approximate our considered judgments. Yet, when applied to the political domain, specific decisions must be made on processes, statutes and cases. Thus, the fact remains that it may prove necessary for the person to adjudicate between rival political conceptions, for which further specification is needed concerning the forum, the varieties of deliberation, justification and reasons admissible therein, and the kind of agreement sought between conceptions. It is just such specification which Rawls seeks to provide with the three phases of justification proceeding in view of public reason and overlapping consensus.
 TJ, p. 176.
- Judiciary and judge
With this, the author shifts to the last stage of the four-stage sequence: the judiciary. As above, we may ask three basic questions of this stage: 1.) why does the author speak of a judiciary? 2.) what complications does a judiciary face?; 3.) what is the standpoint appropriate to a legislature?
On the count of 1.), Rawls’ response may initially seem more equivocal than his presentation in Political Liberalism’s “Response to Habermas” suggests. Although the judiciary’s role as the fourth stage would follow from the fact that persons in society encounter problems with regards to certain laws and policies and ordinarily have recourse to the judiciary to redress those problems, Rawls broadens this last stage to include not just “the application of rules to particular cases by judges and administrators” but also “the following of rules by citizens generally”. Yet the latter goes entirely without mention in his summary in “Response to Habermas”. What reason can Rawls give for this omission?
One could attribute the omission to lack of space, but this does not prove a satisfying explanation, given the considerable length of the essay. Rather, it seems more likely that this mention of rule-following follows from structural considerations. If particular persons do not follow and apply the rules in society, thus engendering the sorts of conflicts liable to come to the judiciary’s attention, then the judiciary’s work of constitutional and legal review simply cannot proceed. This would satisfyingly account for both the inclusion and omission as such structural features go without saying, to a certain extent.
Moving to 2.), the difficulties which the judiciary confront are not those of setting the limits of political obligation and duty, which are determined by partial compliance theory. Instead, the judiciary tasks itself with assuring proper fit between, on one hand, the principles of justice, constitutional process, and legislative statues and policies and, on the other, particular cases and considered judgments, so as to ensure reflective equilibrium at all levels and, hence, between stages. Reaching equilibrium across stages requires, however, a specific standpoint unavailable to the others.
Thus, answering 3.) gives us the judge standpoint. Presumably, the judge standpoint builds on the party standpoint while allowing for broader information in comparison with the delegate and legislator standpoints. Indeed, Rawls sees no further reason to maintain restrictions on information with regards to the judge standpoint. He allows that “everyone has complete access to all the facts” given that “the full system of rules has now been adopted and applies to persons in virtue of their characteristics and circumstances”. Whereas as the process set up by constitution can naturally proceed, for the delegate standpoint, without reference to particular persons, the judiciary and the judge standpoint cannot proceed similarly. For instances of judicial review entail reference to a particular problem experienced by a particular person whose characteristics and circumstances will form part and parcel of the review process. Deliberation and justification must proceed apace with regards to particulars.
Two questions present themselves at this juncture. First, one may ask whether the judge standpoint retains the hallmarks of the party standpoint despite the introduction of particulars. Again, insofar as the person occupying the judge standpoint a.) accepts the principles of justice and applies constitutional procedure and legal statues derived in accordance therewith and b.) allows the individual person’s particular characteristics and circumstances to inform rather than determine the deliberation and justification, then c.) there seems little reason to doubt that the decisions reached in the final stage of the decisionmaking procedure are not, in the relevant sense, depersonalized, symmetrical, autonomous, reasonable and public. In other words, the decision reached through the judge standpoint is not contingent on the individual person’s characteristics or circumstances but, instead, on the principles of justice.
A second question emerges in the form of an ambiguity over the relation between the judge standpoint and the standpoint of “you and me”. After all, if the judge standpoint consists in determining the fit or adequacy of principles, process and statues to particular cases, on which it then issues a judgment, it resembles the standpoint of you and me from which a person works out the four-stage sequence and reflective equilibrium. That said, there is a difference of level: the judge standpoint is internal to the four-stage sequence whereas the standpoint of you and me elaborates the four-stage sequence.
 TJ, p. 175.
 TJ, pp. 172, 175. Cf. §39. Strikingly, Rawls seems to consider the determination of such limits as a necessary preliminary to the judicial stage, albeit a preliminary which does not appear therein as a separate stage. In restricting ourselves to the four-stage sequence laid out in PL, we thus leave this consideration aside.
 TJ, p. 175.
 This recalls Rawls’ discussion of hypothetical imperatives at LH, ____.
While the first change mentioned is prima facie plausible, upon acceptance of Rawls’ principles of justice, the second change seems less clear-cut in that the author did not set a specific threshold for distinguishing different kinds of general information. In other words, if the range of information available to the person occupying the delegate standpoint is limited but otherwise undefined, it proves difficult to isolate the kinds of information which only become available at the time when the person takes up the legislator standpoint.
Certainly, to implement effective social and economic policy, it will be necessary to have access to social and economic facts, e.g. distinctions, hierarchies and functions for cooperation, but it is unclear whether the delegate standpoint does not also have access thereto. After all, the delegate standpoint includes such knowledge as geographical situation, technological advancement, and political strategy prevalent in society, as well as some knowledge of the background culture in the form of common beliefs and interests in society. The question remains what elements set these standpoints apart.
This apparent difficulty may resolve itself in one of two ways, the first of our own invention, the second perhaps more in line with the text. On one hand, we may distinguish between the breadth and the depth of general knowledge. Whereas breadth of general knowledge would allow for the most basic facts in each field, e.g. overall population, culture, resources, etc., depth of general knowledge would ensure access to more precise facts, e.g. demographic analysis, stratification of or interaction between cultures, access to and ownership of resources, etc. This distinction would allow the person occupying the legislator standpoint to take into consideration new facts both unavailable to and irrelevant for the delegate standpoint.
This first solution may be further supplemented or supplanted by a second showing cyclicality between the constitutional and legislative stages, the delegate and legislator standpoints. The author posits this cyclicality earlier when writing:
Statutes must satisfy not only the principles of justice but whatever limits are laid down in the constitution. By moving back and forth between the stages of the constitutional convention and the legislature, the best constitution is found.
One can highlight this cyclicality as a more local instance of reflective equilibrium. In such a way, one could determine whether the liberties and rights issuing from the delegate standpoint are suitable for deciding on and justifying laws and policies capable of guaranteeing equality of opportunity, etc. Yet Rawls sees a further complementarity between the delegate and legislator standpoints in that each is regulated by one of the two principles of justice. This consideration leads him to posit a “division of labor between stages in which each deals with different questions of social justice”: if the constitutional stage has primacy over the legislative, this primacy is provisional rather than unconditional and the legislative outcome can influence the conception of the constitution.
To apply this movement to the question of a general information threshold, this cyclicality may necessitate a provisional restriction of general information at the constitutional stage which is then removed at the legislative, after which the person may reprise the delegate standpoint to bring the legislative outcome, reflecting the full range of general information, to bear on the renewed constitutional stage. In this way, the division of information would merely set the initial terms for the person coming out of the constitutional stage and entering the legislative.
Accordingly, the division of information allows Rawls to extend the legislator standpoint without altering the basic components of the party standpoint. So long as particular information does not allow the person in the legislator standpoint to distinguish individual persons, then the criteria of objectivity and autonomy hold for the legislator standpoint much as they do for the delegate.
 It should be noted that Rawls’ motivations for distinguishing the levels of information are plausible: “Now the question whether legislation is just or unjust, especially in connection with economic and social policies, is commonly subject to reasonable differences of opinion. In these cases judgment frequently depends upon speculative political and economic doctrines and upon social theory generally. Often the best that we can say of a law or policy is that it is at least not clearly unjust. The application of the difference principle in a precise way normally requires more information than we can expect to have and, in any case, more than the application of the first principle. It is often perfectly plain and evident when the equal liberties are violated. These violations are not only unjust but can be clearly seen to be unjust: the injustice is manifest in the public structure of institutions. But this state of affairs is comparatively rare with social and economic policies regulated by the difference principle” (TJ, p. 174). It is rather a question how practicable such a distinction is for the person assuming the standpoint.
 TJ, p. 174.
- Legislature and legislator
Rawls envisions the third stage in the four-stage sequence as that of the legislature. As with the constitutional convention above, we may ask three basic questions of this stage: 1.) why does the author speak of a legislature? 2.) what complications does a legislature face?; 3.) what is the standpoint appropriate to a legislature?
In response to 1.), recall that the author spoke of the constitutional convention in the previous section as the means by which delegates design a process or “machine which makes social decisions when the views of representatives and their constituents are fed into it”. Naturally, that machine requires both input and output, as it does not create laws and policies in and of itself. Input and output will take the form of legislation. As to 2.), Rawls addresses, at the beginning of §31, the fundamental problem facing the person engaged in the legislative stage of the decisionmaking procedure. Note that:
[The citizen] must judge the justice of legislation and social policies. But he also knows that his opinions will not always coincide with those of others, since men’s judgments and beliefs are likely to differ especially when their interests are engaged.
More simply, the person so engaged is charged with making just laws and policies and providing justification therefor in the face of disagreement. At this point, it becomes a question of the standpoint which the person is to take, leading us to 3.). Rawls answers:
Now at this point we come to the legislative stage, to take the next step in the sequence. The justice of laws and policies is to be assessed from this perspective. Proposed bills are judged from the position of a representative legislator who, as always, does not know the particulars about himself.
If this last remark recalls the delegate standpoint, this owes to the fact that both the delegate and the legislator standpoint build on the basic elements of the party standpoint. Both accept the two principles of justice and exclude considerations peculiar to individual persons from deliberation and justification. The question then becomes in what way the legislator standpoint builds on the delegate standpoint.
Insofar as the party standpoint provides the model for the standpoints in the later stages, we can expect to find its baseline again in the legislator standpoint: a depersonalized person in symmetrical relations with others autonomously proposing reasonable principles in publicly available modes. In order to determine whether the legislator standpoint is continuous with the previous, we need only consider what new elements that standpoint introduces. These new elements prove twofold. First, the difference principle provides the independent standard by which to assess legislation. Secondly, all general information on economy and society is now available to the person occupying the legislator standpoint:
The second principle comes into play at the stage of the legislature. It dictates that social and economic policies be aimed at maximizing the long-term expectations of the least advantaged under conditions of fair equality of opportunity, subject to the equal liberties being maintained. At this point the full range of general economic and social facts is brought to bear. The second part of the basic structure contains the distinctions and hierarchies of political, economic, and social forms which are necessary for efficient and mutually beneficial social cooperation. Thus the priority of the first principle of justice to the second is reflected in the priority of the constitutional convention to the legislative stage.
 TJ, p. 171.
 TJ, p. 174.
 TJ, p. 175.
In short, the person occupying the delegate standpoint knows nothing more about her individual circumstances than the person occupying the party standpoint. Yet her share of general, impersonal knowledge has considerably increased. If she knows no more about others, she does now know more about the circumstances in which they find themselves: geography, economy, political culture, perhaps even aspects of the background culture. Moreover, what does newly available information mean for the delegate standpoint in comparison with the party standpoint?
Insofar as the information remains general, i.e. no information is available on particular persons, the delegate remains depersonalized and in symmetrical relations with others. Similarly, the new information remains public in the sense that its content and presentation are both available to others and something to which they could assent upon seeing that others do. Put differently, the presence of a certain resource within that society does not commit in and of itself commit the person qua delegate to a belief or reason that others would be unlikely to share.
Likewise, the reasons which the delegate offers representative persons for a given position are to be framed in terms of that general information. If publically available in the right sense, that information also seems likely to frame acceptable or justifiable reasons and, hence, proves reasonable. That leaves only the count of autonomy. So long as the person occupying the delegate standpoint keep that standpoint free from morally irrelevant considerations, like those alluded in footnote 80, there seems little reason to worry that such considerations are the basis of her deliberation and justification in the constitutional convention. We shall return to this question below.
At this stage, Rawls takes a closer look at that in which a constitution consists. If “a just constitution would be a just procedure arranged to insure a just outcome”, then “[t]he procedure would be the political process governed by the constitution, the outcome the body of enacted legislation”. In particular, that just procedure qua constitution must embody liberties concordant with the liberty principle from justice as fairness and would include, under one form or another, standard constitutional democratic protections, such as “liberty of conscience and freedom of thought, liberty of the person, and equal political rights”. As the delegate standpoint implicitly accepts the two principles of justice, it is expected that the person qua delegate would choose to incorporate a scheme of such protections into the procedure and check that the procedure, as well as the outcomes which it is likely to engender, fit with the principles of justice.
As for the outcome, there exists no guarantee that all legislation will be just, for which reason the delegate is expected to choose among different such schemes the “procedural arrangements that are both just and feasible those which are most likely to lead to a just and effective legal order”. In order to choose between schemes, the delegate must formulate the procedural rules with an eye to “the beliefs and interests that men in the system are liable to have and of the political tactics that they will find it rational to use given their circumstances”. Herein, Rawls provides a more thorough response to the question posed above in footnote 80: where does one set the threshold for the right kinds of general knowledge?
With regards to political and economic beliefs and interests, the restrictions seem somewhat weaker than suggested above. Note that delegates “are assumed, then, to know these things”, which knowledge does not alter the original position as captured in the party standpoint provided that “they have no information about particular individuals including themselves”. Granted, from general information about the make-up of political or background culture, the person occupying the delegate standpoint may include information eventually pertaining to her own position or that of representative persons in society. Nevertheless, so Rawls seems to suggest, if the delegate applies that information to representative persons alone rather than particular persons, then the objectivity of the original position and the autonomy of the party standpoint obtain. In this way, while the restrictions on information are weaker than suggested, the conclusion nonetheless accords with that given above: objectivity and autonomy are not compromised through general knowledge of existing circumstances.
 If we hesitate on this last, this owes to the ambiguity between general and particular knowledge and the lack of further exposition on Rawls’ party. If the third stage allows for the “full range of general economic and social facts” and the fourth removes all limits on information (TJ, p. 175), it seems unclear as to the composition of a partial range of general economic and social facts. To put the problem another way, what kinds of general economic and social facts are necessary to exclude personal considerations or particular information weighing in the delegates’ deliberation? From the level of the economy’s advancement, it seems possible to have an idea of the kinds of careers available to persons in that society. Likewise, the presence of a certain resource as opposed to another might similarly clue one in to the dominant industry in a society. Finally, knowledge of the political culture might include incomplete references to religion or background culture, from which it would be possible to reconstruct these in part. In sum, general knowledge of these kinds leaves the person occupying the delegate standpoint in a better position to anticipate the various representative persons or starting places in society, which considerations may or may not prove important for elaborating a system of institutions or liberties. All in all, Rawls must find a threshold for knowledge which at once allows the person occupying the delegate standpoint to adapt institutions and liberties to the surrounding society and prevents that person from deliberating on the bases of morally irrelevant considerations thereby avoiding heteronomy.
 TJ, p. 173.
 TJ, p. 174.
- Constitutional convention and delegate
Certainly, it is easy enough to understand Rawls’ requirement: political justification and public discourse bear less on the principles of justice and more on the institutionalization of those principles. After all, the person exiting the standpoint of the party with the principles justice may lack the institutional orientation necessary to bring those principles to bear on the social system in which she lives. The author calls attention to this potential shortcoming:
So far I have supposed that once the principles of justice are chosen the parties return to their place in society and henceforth judge their claims on the social system by these principles. But if several intermediate stages are imagined to take place in a definite sequence, this sequence may give us a schema for sorting out the complications that must be faced. Each stage is to represent an appropriate point of view from which certain kinds of questions are considered. Thus I suppose that after the parties have adopted the principles of justice in the original position, they move to a constitutional convention.
There seem three considerations to unpack in this passage: 1.) why does the author speak of a constitutional convention? 2.) what complications does a constitutional convention face?; 3.) what is the standpoint appropriate to a constitutional convention? Certainly, with regards to 1.), the author finds a “workable political conception” in the familiar form of constitutional democracy and finds a parallel in the United States Constitution, its history and drafting. Less parochially, he holds that the person exiting the party standpoint will encounter difficulties concerning the application of the principles of justice to the basic structure of institutions and liberties in her society. Ordinarily, such a structure takes shape in the form of a constitution.
In any case, those difficulties lead us to 2.). Of the three problems facing the person returning to society and highlighted by Rawls, the second corresponds most closely to the difficulties which the constitutional convention must alleviate:
[A] citizen must decide which constitutional arrangements are just for reconciling conflicting opinions of justice. We may think of the political process as a machine which makes social decisions when the views of representatives and their constituents are fed into it. A citizen will regard some ways of designing this machine as more just than others. So a complete conception of justice is not only able to assess laws and policies but it can also rank procedures for selecting which political opinion is to be enacted into law.
The machine’s design, i.e. the make-up of the basic structure, is subject to much the same process of deliberation and justification as in the decisionmaking procedure of the original position. Wherefore Rawls’ remark that the constitutional convention and the following stages are “an elaboration of the original position”.
As with the original position, there remains the matter of defining the standpoint most appropriate to the decisionmaking procedure embodied in the constitutional convention, the question raised by 3.). If he characterized the standpoint relevant to the original position as that of the party, i.e. a depersonalized person in symmetrical relations with others autonomously proposing reasonable principles in publicly available modes, the delegate, the standpoint appropriate to the constitutional convention, inflects the former’s main traits:
Subject to the constraints of the principles of justice already chosen, [delegates] are to design a system for the constitutional powers of government and the basic rights of citizens. It is at this stage that they weigh the justice of procedures for coping with diverse political views. Since the appropriate conception of justice has been agreed upon, the veil of ignorance is partially lifted.
Two remarks are in order here. On one hand, the delegates are charged with designing a second-order system capable of reconciling conflicting, first-order political views. On the other, insofar as all have assented, through the party standpoint, to a single conception of justice, i.e. justice as fairness, certain constraints on knowledge, information and reasons are removed. In other words, information which was previously considered morally irrelevant to the party standpoint at the level choosing principles necessarily gains moral relevance for the delegate standpoint in framing institutions and liberties. For the society in question must be capable of instantiating those institutions and liberties, for which these must not be incommensurate with social or political realities determining that society. The author briefly enumerates the kinds of information available to the delegate standpoint:
The persons in the convention have, of course, no information about particular individuals: they do not know their own social position, their place in the distribution of natural attributes, or their conception of the good. But in addition to an understanding of the principles of social theory, they now know the relevant general facts about their society, that is, its natural circumstances and resources, its level of economic advance and political culture, and so on. They are no longer limited to the information implicit in the circumstances of justice. Given their theoretical knowledge and the appropriate general facts about their society, they are to choose the most effective just constitution, the constitution that satisfies the principles of justice and is best calculated to lead to just and effective legislation.
 TJ, p. 172.
 TJ, p. 171, cf. p. 172. He allows, however, that other institutional forms could also qualify as workable.
 TJ, pp. 171-172. While some may object to the characterization of political process as machine, the analogy suggests not an automatized entity set in motion once and for all but more a procedure in which the inputs and outputs are treated independently of the particular persons concerned therewith.
 TJ, p. 172.
 TJ, pp. 172-173.