Schmitt and Rawls - Vatter

Political Theory
http://ptx.sagepub.com The Idea of Public Reason and the Reason of State: Schmitt and Rawls on the Political
Miguel Vatter Political Theory 2008; 36; 239 originally published online Feb 5, 2008; DOI: 10.1177/0090591707312437 The online version of this article can be found at: http://ptx.sagepub.com/cgi/content/abstract/36/2/239
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Special Section: The Politics of Public Reason
The Idea of Public Reason and the Reason of State

Schmitt and Rawls on the Political
Miguel Vatter
Pontificia Universidad Catlica, Chile
Political Theory Volume 36 Number 2 April 2008 239-271 2008 Sage Publications 10.1177/0090591707312437 http://ptx.sagepub.com hosted at http://online.sagepub.com
Rawls and Schmitt are often discussed in the literature as if their conceptions of the political had nothing in common, or even referred to entirely different phenomena. In this essay, I show how these conceptions share a common space of reasons, traceable back to the idea of public reason and its development since the Middle Ages. By analysing the idea of public reason in Rawls and in Schmitt, as well as its relation to their theories of political representation, I show in what way Schmitts concept of the political cannot be divorced from an idea of justice, while, conversely, Rawls conception of justice cannot be divorced from a theory of the political. In that way this paper thematizes the internal relation that each theory establishes between justice and power, deliberation and decision, and consensus and disagreement. Keywords: John Rawls; Carl Schmitt; the political; public reason; justice; power
Introduction: Disagreeing About the Political
he later Rawls argues that liberalism needs to be reconceived as political if its principles of liberty and equality are to serve as the basic terms around which a stable, well-ordered society can be constructed under
Authors Note: Previous drafts of this essay were presented at American Political Science Association (APSA) (Philadelphia, September 2006), and in the political theory workshops at Yale University, Hawaii University, and Flensburg University. A preliminary version of this essay was read at the international conference Filosofa de la Democracia, Universidad de los Andes, Bogot, Colombia (October 2006) and appears now in the conference proceedings as El concepto de la poltica y la razn pblica en Schmitt y Rawls, Filosofa de la Democracia, ed. Rodolfo Arango (Bogot: Siglo del Hombre Editores, 2007). I would like to thank the organizers and the participants of these events for their helpful comments and criticisms. A grant from the American Council of Learned Societies helped support the research into Schmitt and medieval political theory; and a Chilean national research grant, FONDECYT n. 1071087, helped support my work on Rawls. Thanks go to Mary Dietz and two anonymous reviewers for their editorial suggestions. 239
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the conditions of democratic pluralism. Rawlss political liberalism has been frequently criticized for suggesting a normative idea of politics, which considers only the possibility of deep-seated consensus instead of radical antagonism, rational deliberation instead of political decision, and justice instead of power.1 Relying on the concept of the political as famously theorized by Carl Schmitt, some critics of the later Rawls have questioned whether his use of the term political for his liberalism is justified since, on their reading of the Schmittian conception, the political refers to a level of social conflict that is irreducible to the project of establishing a stable political order.2 Likewise, the defenders of Rawls turn towards the political see in his conception something completely opposed to Schmitts. They understand the term as a synonym for the reasonable, that is, as a universally shared faculty or moral sense of justice aimed at seeking neutral normative conditions around which everyone could come to stand in agreement, thereby reaching not only a peaceful cohabitation but also a just society.3 In this way, critics and defenders of Rawls and Schmitt both deny that the others theory is political or that it has anything important to say about the political. The above way of framing the disagreement between Rawls and Schmitt, curiously enough, appears not to take into account the surprising coincidence in the terminology employed by the two philosophers. By speaking about the concept of the political and the category of the political, they both grant central importance to this concept or category in their theories concerning the creation of a stable social order.4 This begs the question: Is the use of the term the political on the part of such different thinkers merely a case of homonymy, such that in reality, Schmitt and Rawls would be referring to completely different phenomena? Or, are they talking about the same thing, but doing so through a concept or category whose sense is inherently debatable, through an essentially contested concept5? In this essay I propose a third possibility on how to think of the difference between these two thinkers with respect to the political. I argue that the concept or category of the political in Schmitt and the later Rawls presupposes a shared space of reasons, a common discourse, within which they stake out opposing positions. In particular, their common space of reasons is populated by concepts and arguments drawn from the same history of the idea of public reason, a history which begins in the late medieval period and reaches, through continuities and discontinuities, up to Rawlss and Schmitts theorizations of public reason in the 20th century. Without wishing to deny that Schmitt is an anti-liberal thinker6 or that Rawls identifies himself as a liberal philosopher, I shall argue that the fundamental disagreement between them
Vatter / Public Reason and the Reason of State
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is not due to having incompatible concepts of the political. Rather, I contend that their differences stem from the contrary ways in which they prioritize two co-originary aspects of the same idea of public reason. Rawls maintains that his conception of justice is political because its terms rely on the existence of certain fundamental ideas seen as implicit in the public political culture of a democratic society.7 Thus, he argues that the public use of reason should draw its terms and arguments from this kind of political culture. However, Schmitt argues that the political is unavoidable precisely because the public political culture of Western democracies is traversed by an irreconcilable conflict between the ideas of democracy and liberalism, of equality and liberty. For him, the public use of reason should always consider the polemical nature of these fundamental ideas and decide which side to take.8 Rawls, for his part, writes Political Liberalism partially to create a standpoint from which this conflict need not be understood as unavoidable and irreconcilable, paving a way for the public use of reason to have the power to reconcile the fundamental tensions running through modern democratic societies.9 I hope to show that a genealogical view of the fundamental ideas of the public political culture of Western democracies, in particular those associated to public reason and to political representation, may explicate the fundamental reasons for this kind of dispute.10 Until now, much of the English literature on Schmitt has presented his discourse on the political without giving due consideration to how it fits together with his conception of justice and jurisprudence.11 In contrast, much of the literature on the later Rawls has downplayed the significance of his introduction of the concept of the political in reworking his theory of justice.12 I intend to show that the uses of public reason found in Schmitt and in the later Rawls indicate that neither thinker believes in an abstract opposition of justice and power, deliberation and decision, or consensus and disagreement when it comes to theorizing the foundations of legitimate political order.13
The Problem of Stability as a Problem of Application

In an influential critical essay on the development of Rawls thought after A Theory of Justice, Brian Barry argues that Rawls move towards a political conception of justice is motivated more by his perception of a flaw in his first books treatment of the problem of stability than by a reaction against communitarian critiques of his theory.14 Barry argues that if Rawls is correct
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about his theory of justice being free-standing in the sense that it is independent of any comprehensive view, and if (as Barry argues, pace Rawls, at some length) it should have already been the considered view of Rawls in A Theory of Justice, then it follows that reasonable people will choose to apply the principles of justice for their own sake, not because they supposedly overlap with the reasonable comprehensive views of what others hold to be good or moral.15 According to Barry, this way of looking at Rawlss conception of justice resolves the problem of stability without having to concoct an account of the political found in the later Rawls. Unreasonable persons will simply have to accept that a political order cannot be based on their views, and should they not do so, then they can be legitimately coerced into doing so.16 Barry is surely right to point out that in Political Liberalism, Rawls is trying to address a perceived failure with the last two chapters of A Theory of Justice, which deal with the motivation to apply principles of justice.17 I disagree with Barry on his understanding of what is ultimately at stake with the problem of stability. As Rawls says, the principles of justice apply to the basic structure of a society.18 This supposes that, in ideal theory, the basic institutions of a society have to realize, or apply, the principles of justice. If, for whatever reason, these institutions are unable to apply justice, then this presents a problem of (the) stability (of justice). To understand stability as a problem, one must be aware of the distinction between the principles of justice and their derivation on one hand, and the entirely different matter of the legitimacy of the institutions that apply these principles, on the other. Evidently, the problem of stability or legitimacy, cannot be answered by applying the principles of justice without raising several questions. This is because the stability or legitimacy of political and social order is the condition of possibility of such an application. The common reference to a category or concept of the political in the later Rawls and in Schmitt is not coincidental: both give a political framework to their concepts of justice (in the sense of jus or principle of justice, not in the sense of lex or legal norm) to resolve the problem of stability or legitimacy. The latter becomes problematic for them, in the first place, because they both presuppose that what is politically right or just (contrary to what is ethically good) necessarily denotes a relation between the self and its other, as opposed to a self-relation.19 So conceived, the other is not a priori someone who is on ones side, and therefore is someone who could indeed become an enemy, or, at the very least, an opponent. This possibility will depend on whether the relation between self and other can be considered by either to be in accordance with right or justice. That is why Rawls and
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Schmitt both think that, if principles of justice are to be realized in basic social structures that enjoy stability or legitimacy, the working out of relation to the other will have to assume the character of a theory of the political. More particularly, the political comes into play whenever the question of the application of a principle cannot be answered solely by reference to the grounds that make the principle valid, as occurs in the case of the principles of justice that have as subject the basic structures of a society. Hobbes, whose idea of public reason was designed to address the problem of application, put the matter as follows: it is one thing to be aware of the laws of nature (equivalent to principles of justice) and want to follow them (equivalent to having the right subjective motivation), but it is an entirely different matter to constitute a sovereign power that makes their application possible by providing for a stable political order that will not punish individuals for having the right motivation.20 The problem of stability or legitimacy is incorrectly framed if one thinks that it can be resolved by examining the subjective motivation for doing what is right (for all such matters occur in foro interno, and remain inscrutable to the other). The answer to the question why should I obey these institutions and their authority? is not because I am reasonable but rather because they are legitimate. But what makes them legitimate cannot be seen by further analyzing my subjective motivation. Rather, institutions are legitimate in so far as they manage to apply justice; in so far as they make up a political order that realizes justice. How such political order is possible cannot be accounted for by the same arguments that ground the derivation of the principles of justice themselves.21 For a theory of justice to be political, as Rawls and Schmitt understand the term, the principles of justice must be applied in such a way as to allow for the establishment of a stable political unity in a society characterized by a plurality of interests (economical, social, etc.) and comprehensive belief systems (religious doctrines, ethics, philosophies, etc.) that conflict with one another. Schmitt assumes pluralism as a fact, as something given, as much as Rawls.22 Both propose to find a basis for a political association that will not deny the fact of pluralism while, at the same time, making it possible to have one basic or sovereign political association rather than many associations strung together without an overarching, supreme unity.23 In this sense, although both assume the centrality and unavoidable nature of the fact of pluralism, neither Rawls nor Schmitt are pluralists in the historical sense of the term.24 Both distinguish legitimacy from justice, understanding legitimacy to mean the support that a people gives to the state and other basic structures
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for the right reasons, which Rawls calls stability for the right reasons.25 For these reasons not to remain merely matters of conscience, political unity must be constructed by judgments or decisions that have a radically public character.26 In other words, legitimacy presupposes an idea of public reason that has in sight what is just or right (justum, gerecht). For both Schmitt and Rawls, legitimacy presupposes a people, and for that reason the dimension of the political also refers to a relation among citizens that is prior to the state but is not natural, and thus, must be constructed. Therefore, the political concerns the constitution of a people and of its power.27 In other words, for both Rawls and Schmitt, political unity must be constructed by the exercise of the capacity to judge or to decide that brings a group of persons together and forms them as a people. Schmitt and the late Rawls also coincide in the belief that a conception of the political must be understood to be free-standing or autonomous in the sense of being not metaphysical.28 This autonomy of the political signals a rejection of the project to give either a metaphysical or a religious foundation to justice. For Rawls, the burdens of judgment are such that it is impossible to achieve consensus on any one reasonable comprehensive philosophical and moral doctrine through reason alone. As a consequence, if the political unity of a society is based on any such doctrines, that society will remain unified only to the extent that the sanctions of state power are employed, leading to instability in either the short or long run. Therefore, that states foundation would be merely ideological.29 The metaphysical or religious foundation of justice, for Rawls, runs afoul when it meets with the fact of oppression.30 Analogously, Schmitt thinks that the autonomy of the political, with respect to metaphysical or religious conceptions of the good life, is the sole alternative to handing over supreme coercive power to whomever feels more convinced (on metaphysical or religious grounds) of the truth of their beliefs, to whomever feels that such conviction not only makes them right (gerecht) but also self-righteous (selbstgerecht) about being in the right, to employ a play on words he uses.31 In the following sections I argue that the best way to understand the political in Rawls and Schmitt is to see in what sense this concept or category addresses the problem of who can judge what is just or who has the right to apply (the principles of) justice (juris-dicere) given the existence of reasonable disagreement on the truth of comprehensive doctrines of the good. The question of who is judge (of what counts as just) has two sides to it: on one hand is the question of the deliberation on what is just; on the other is the question of the publicity of what is just. My claim is that Rawls and Schmitt both articulate their answers to this question through a combination of ideas
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of public reason and political representation. Public reason is the organ of juris-dicere or of legitimacy; only a public use of reason can apply principles of justice and achieve stability.32 Similarly, the judgments on the basis of which a people constitute themselves, and thus the very idea of a public reason, relies on principles of political representation. Reasons cannot be public unless they can be developed within procedures of political representation for all members of society.
The Origins of the Idea of Public Reason in Medieval Political Thought

Historians of medieval political ideas have traced the idea of public reason back to the 12th and 13th centuries, when it is developed by legists, canonists, and commentators of Roman law. As Gaines Post has shown, some of those jurists worked under the auspices of the new princes (and Popes), who desired to consolidate their kingly estate (status regis) in a contest with the claims to power made by the nobility, the emperor, the people and their common law, and the various orders within the Church.33 The original term for public reason is ratio publicae utilitatis, by reason of the utility of what is public. This term means the reason (ratio) that gives a superior right (jus) to an office or estate (status), in this case the status regis, compared with the rights of private persons, because it is judged that such an office is of utility for all equally (publicae utilitatis). Thus, public reason grows out of the judgment that the kingly estate exists for the good of the public, or of the entire society (status regni).34 Two points follow from this definition that are of importance for the subsequent history of this concept. First, the idea of public reason is internally connected to the claim of superiority (in terms of power) of one estate (status) over others. At the core of the idea of public reason, there is no abstract opposition between justice (reason) and power (sovereignty). From its emergence, the idea of public reason is connected to the project of establishing the sovereignty of the state over society. Second, the belief that the superiority of an estate lies in the equal interest of all depends on the complex combination of two concepts that are both tied to the idea of political representation: full powers (plena potestas) and whatever touches all, must be consented by all (quod omnes tangit, ab omnibus approbetur). Full or plenary powers were granted to the representatives of private persons or other associations when they were summoned to the kings court and council to argue for their rights in a deliberative process, leading to a
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decision with regard to the royal claim of public utility and its prerogative.35 The second concept is the innovative application of the Roman private law principle of quod omnes tangit to the sphere of public right, stating that any affair that could potentially affect everyone thereby became everyones concern and must be consented by everyone. This generated a need for the interests of all affected parties to be adequately represented.36 At the origin of modern theories of political representation there is no abstract opposition between deliberation and decision or between procedural and substantive justice. In this medieval jurisprudence, the reason for why an estate qualifies as something of public utility is called ratio necessitatis. The public reason determines the extraordinary measures (including laws) that need to be taken in cases of necessity or emergency to save the political community. It was the kings right to deal with an emergency: for the common good he claimed a superior jurisdiction, in order to suppress disturbers of the peace within the kingdom, made a new law for a new situation with the counsel and consent of his council, and of all whom the matter touched.37 Schmitts attempt to develop an entire jurisprudence out of a theory of the sovereign decision on the state of exception, therefore, is entirely in keeping with at least one late medieval tradition of jurisprudence.38 If Posts historical reconstruction is more or less correct, then this is the same tradition that gave birth to the modern concept of due process, and an embryonic form of the procedural concept of justice that arguably reaches its highest formulation in Rawlss theory of justice.39 Basing my argument on Posts historical analysis, I identify two different but co-originary senses in the concept of public reason (ratio publicae utilitatis). On one hand, the concept refers to a reason for an estate (status) with a superior right or jus. The public reason in question is that this estate serves the good of the entire community and that community has a public right that is superior to and embraces all private rights of kings and subjects.40 On the other, the concept of public reason refers to a reason of the estate which is charged with interpreting or deciding, case by case, what the good of the community requires.41 One can say that the first sense of public reason (ratio status rei publicae, by reason of the government of public affairs) denotes the superiority of the power of the political community over that of the estate, and thus I shall refer to it as a reason for the state, whereas the second sense of public reason (ratio status magistratus, by reason of the ruling office or power) denotes the superiority of the power of an estate over the rights of private persons, and thus I shall refer to it as a reason of the state (in fact, Post identifies it as a precursor of absolutist raison dtat). 42
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I argue that in their interpretations of the idea of public reason, Rawls privileges and radicalizes the first sense of the term, while Schmitt does the same for the second sense. But, in essence, both occupy contrary standpoints within the same space of reasons opened up by the emergence of the idea of public reason in the late medieval context. In Schmitt, the public reason of the state (for Schmitt, sovereign is he who detains such reason) absorbs the public reason for the state: the decision of the sovereign constitutes the people. Schmitts theory of the political requires that the good of the people, that is, the reason for the state, be determined by the sovereign decision as to whether a state of exception or necessity exists (which is itself a decision of reason of state). On the contrary, in Rawls, the public reason for political society (not identical with the state) is superior to the public reason of the state, and the application of justice is what permits the constitution of power for such a people. For this constitution, justice is the scheme of the equal rights of citizens that delimit the sovereignty of the state itself.
The Idea of Public Reason in Schmitt

Whereas medieval jurisprudence considers the state of emergency (status necessitatis) to be contingent,43 Schmitts theory of the political considers the state of emergency or state of exception to be the permanent and necessary condition of possibility for the political unity of a society.44 The rights of private persons, including the rights of persons as citizens, are always already limited in Schmitt by the supreme right of the sovereign. This supreme right is simply the right that the state has to assure civil peace through its decision as to whether society is or is not in a state of war:
The state as the decisive political entity possesses an enormous power: the possibility of waging war and thereby publicly disposing of the lives of men. The jus belli [right of war/MV] contains such a disposition. It implies a double possibility: the right to demand from its own members the readiness to die and unhesitatingly to kill enemies. The endeavour of a normal state consists above all in assuring total peace within the state and its territory. To create tranquility, security, and order, and thereby to establish the normal situation, is the prerequisite for legal norms to be valid. Every norm presupposes a normal situation, and no norm can be valid in an entirely abnormal situation.45
The most important consequence of this Schmittian radicalization of the medieval doctrine of the state of emergency is that the primary political enemy becomes the internal enemy, because the fundamental decision that constitutes political unity is whether or not there exists a state of civil peace.46
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What I would like to emphasize in this context is that Schmitts theory of the political cannot be understood apart from the reference to a concept of justice found at the heart of his jurisprudence. Schmitt considers that justice is always a regulative idea of what is just for everyone and what lies in the equal interest of everyone.47 Wherever Schmitt speaks about justice, he always mentions justice in connection to reason.48 For him, Jus or Recht is an idea of reason; Schmitt does not have an irrational theory of justice.49 But if this is the case, then what is the meaning of Schmitts infamous decisionism, with its necessary reference to an unquestionable source of authority, which, relative to the standards of modern political rationalism, gives his jurisprudence its unmistakeable aura of irrationality?50 As Carlo Galli has demonstrated, for Schmitt the ideas or principles of justice, precisely because they are abstract ideals, need to be applied to reality.51 Schmitt does not consider reality to be constituted a priori by such ideas or principles of justice. From the beginning of his production, he rejects the idealist conception of reality, and he does not have a dialectical conception of the relation between idea and reality.52 Schmitts theory of justice, therefore, is a theory for which the problem of the application of the idea of justice is primordial with respect to the justification of the contents of the principles of justice.53 Schmitts attacks on parliamentarism are normatively grounded on his claim that the pre-existing and presumed congruence and harmony of right and statute, justice and legality, substance and procedure, characteristic of a parliamentary regime, remains unproven.54 In fact, such congruence for Schmitt is ultimately undemonstrable because, on his account, every parliamentary legal system necessarily contains other sources of right apart from statutory lawmaking that are embodied by the extraordinary lawgivers envisaged by their constitutions. The key to understanding Schmitts jurisprudence lies in making out the reasons for the superiority of extraordinary over ordinary legislative authority. A good example of such reasoning is found in the discussion of the extraordinary lawmakers, particularly the executive endowed with decree powers, which Schmitt identifies in the Weimar Constitution. Schmitt argues that, in the executive lawmaker,
the simple truth of legal scholarship becomes evident through all the normative fictions and obscurities: that norms are valid only for normal situations, and the presupposed normalcy of the situation is a positive-legal component of its validity. However, the lawmaker under normal circumstances is something different than the special commissioner of the abnormal situation who re-establishes normalcy (security and order).55
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In emergency situations, or in the case of necessity, the race to legislate between legislative and executive reveals the very clear superiority [of the extraordinary lawmaker] . . . which prompts his introduction.56 Schmitts argument for the superiority of the extraordinary lawmakers with respect to parliament does not rely merely on the superior speed with which the executive can make law in emergency situations compared with the slowness of the parliamentary legislature, for that is not a normative ground for superiority.57 Rather, the superiority of extraordinary lawmaking is grounded on three kinds of reasons (rationes): rationes materiae, adduced to justify the superiority of substantive legal restrictions (for instance, a bill of rights) within a formal-legal constitution; rationes supremitatis, adduced to justify the priority of the peoples plebiscitary will in relation to that of parliamentary majorities; and rationes necessitatis, adduced to justify the superiority of executive decree powers during states of exception.58 The idea of a public reason in Schmitt therefore brings together a concept of right and one of might (in the sense of superiority): it is the reason that gives more might to the right of the executive over that of parliament to intervene in an emergency situation. For Schmitt, legitimate authority is a matter of superiority in issuing commands that will be obeyed. This superiority is always determined by a reason: authority in Schmitt is superiority based on reasons. This does not mean that authoritative decisions are, as such, the conclusion of rational syllogisms: they remain acts of the will of a public person, where, for Schmitt, the will is not identifiable with practical reason. In the terms I introduced above, such authority based on reasons would be the public reason for having the state. However, in Schmitt it is the theory of application that determines the sense of his discourse on legitimacy. This theory of application has three essential components, all of which are traceable to Schmitts appropriation of the idea of public reason found in Hobbes. First, the state is always and only a function of the application of justice. For Schmitt, there is no legitimate state that is not, in the above sense, a Rechtsstaat.59 Second, the political turns on the sovereigns decision as to who is a friend and who is an enemy.60 The political is a matter of deciding about the safety of the entire society in a state of emergency.61 For Schmitt, this decision is an act of will, not of reason.62 Hence, the political decision is always associated with a public person or an office to which there corresponds an authority.63 In the terms introduced above, this aspect would correspond to the public reason of the state, i.e., the reason of the public person who decides in the last instance. Through the authoritative decision, the sovereign applies justice (Recht, jus) and determines the existence of a normal situation. That is why
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Schmitt says that the concept of the political is more primordial than the concept of the state;64 even though he does not thereby mean that the political could have an existence that is separate from the state, for the political in Schmitt is always oriented towards the determination of what in a society can function as a state, i.e., what can apply justice. Third, in a normal situation, the legal norm (Gesetz, lex) obtains validity or legality (Geltung/ Legalitt), which needs to be distinguished from legitimacy (Legitimitt ).65 For Schmitt, only a political authority can be legitimate, not a legal norm. Legal norms can only be valid. This is why he adopts as the fundamental formula of his jurisprudence Hobbess dictum: authority, not truth, makes law (auctoritas, non veritas, facit legem).66 He contends that legitimacy always has the superior right with respect to legality.67 From the above elements Schmitt derives his formula for legitimacy, which is also couched in a Hobbesian dictum: I obligate because I protect (protego ergo obligo).68 The sovereign decision as to whether there is or there is not a state of war counts as the primordial application of justice, in the sense of jus belli.69 This application of justice on the part of the state as the decisive political entity is intended to protect the subjects for the right to demand from its members the readiness to die and unhesitatingly to kill enemies is but part and parcel of the endeavour of a normal state . . . in assuring total peace within the state and its territory. That is why the sovereign can legitimately claim from them their obedience to the norms and measures of the state. Now, if it is rather easy to trace a direct line from the late medieval jurists of the superiority of the status regis, through the theories of absolute sovereignty of Bodin and Hobbes, to the concept of the political in Schmitt, the opposite is the case for the idea that the good of the people functions as the reason for the state. This is an idea which makes only fleeting appearances in Schmitts writings. Since the decision on who is an enemy refers to an existential threat to ones way of life,70 this decision must be taken by the state, but it must also meet with the consent of the people as a whole for as long as a people exists in the political sphere, this people must, even if only in extreme casesand whether this point has been reached has to be decided by itdetermine by itself the distinction of friend and enemy.71 To give a democratic edge to his conception of the political, Schmitt here applies the quod omnes tangit principle, given that the decision to engage in war affects all of society, and therefore must be consented to by the entire people and by each and everyone of its members.72 This characteristic of the concept of the political and its public reason, that is, of the ratio that is present in the sovereigns decision to apply the
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jus belli, is congruent with Schmitts concept of democracy, which is defined as the identity between ruler and ruled. An identity that, in turn, presupposes the homogeneity of a people.73 After all, without presupposing this homogeneity, it would be hardly realistic to expect an entire people to determine by itself the distinction between friend and enemy with the required univocity. Schmitts basic idea is that the unified will of a people corresponds to the decision of the singular will of the sovereign or of the extraordinary legislator.74 For Schmitt, the distinction between internal friends and enemies is always connected to a substantive concept of a homogeneous people.75 From such considerations, Schmitt derives his well-known belief that democracy and dictatorship are not incompatible.76 At times, especially in his constitutional writings, this extraordinary legislation gets associated with the republican idea of the peoples constituent power (pouvoir constituant).77 Such power stands in contrast to the production and application of legal norms, which he calls ordinary legislation and associates with the constituted power (pouvoir constitu) of the state, understood as a system of legal norms and measures. Such references to aspects of a republican theory of the state in some of Schmitts texts need to be taken with a grain of salt. In reality, the purported contradiction between liberalism, with its atomistic principle of representation, and democracy, with its corporativist principle of representation, that structures Schmitts entire polemical writings during the Weimar period, misses completely the tertium datur of modern republicanism and its own principle of representation, which is irreducible to the above mentioned possibilities. Rawls certainly did not forget that in The First Definitive Article to Perpetual Peace, Kant distinguishes a democracy from a republic precisely because the latter is centered on a principle of representation that separates the power of the people from the exercise of state sovereignty. Schmitts idea of democracy, by way of contrast, ultimately relies on a principle of representation that he finds in the political tradition of Roman Catholicism.78 The idea that the omnipotent sovereign represents an entire people as well as every individual member of this people relies on two characteristic features of this Catholic idea of political representation.79 The first of these is that political unity comes to society or to the people from above.80 Political unity is attained when a personal representative of justice applies this jus through rulings.81 The second feature of Schmitts device of representation is that (worldly) life must be sacrificed for (eternal) life: citizens must be capable of giving up their physical life to the state on demand for the sake of receiving a redeemed life, namely, an ultimate meaning to ones existence.82 That is why the original position in
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Schmitt, where the principle of jus (belli) is decided upon, coincides with a state of emergency, where the application of justice is inseparable from the decision between friend and enemy, and thus from the readiness to die and unhesitatingly to kill enemies. Schmitts principle of representation stands at the antipode of Kants republican principle of representation. Whether Schmitts political Catholicism is more democratic, in any sense of the term, than the republican principle, remains a dubious proposition.
The Idea of Public Reason in Rawls

In Political Liberalism, Rawls reverses Schmitts order of priority with respect to the two senses of the idea of public reason. In Rawls, the public reason for the state (that is, the good of the political society) is superior to the public reason of the state. The public reason for the state is modelled by the original position in which disinterested or fair terms for social cooperation between citizens (the principles of justice) are chosen by the representatives of these citizens.83 The resultant public and mutual recognition of the principles by the citizens amounts to the construction of a people with the (constituent) power to give itself a political constitution, that is, the construction of a people as an extraordinary legislator.84 In contrast, the public reason of the state is composed of the kinds of justifications that the state must give to its citizens to show them that its laws, institutions, and measures (i.e., its ordinary legislation) not only respect, but also protect, this power of the people.85 The most basic sense of public reason in Rawls does not refer to a reason that renders the sovereign necessary, as with Schmitts ratio necessitatis. On the contrary, it is a reason that frees the people not from the state itself, but from the sovereignty of the state over the political life of a free society. A public use of reason is already at play in the original position. This is the case not only because each representative of a citizen must choose the principles of justice in as rational a manner as possible, but also because these principles must be able to be such that the other representatives may consent to them. This means that the principles of justice must be such that every citizen not only knows him- or herself to be adequately represented in the selection of these principles, but also that all other citizens recognize this, in the sense that the decision for these principles is representative of the political unity of all citizens into a people. This condition for the principles of justice corresponds to the condition of reciprocity that Rawls considers fundamental to a reasonable, and not merely rational, idea of public reason.86
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According to the terms I introduced above, the Rawlsian condition of reciprocity in the original position grants to each citizen a stake in the government of public affairs (status rei publicae). And since reciprocity characterizes the kind of reason that is fundamentally public, the original position is nothing other than a model of the reason in virtue of which political society attains stability (ratio status rei publicae). That by reason of which public affairs are governed in Rawls is neither the common good nor the security of the community, as it was in the medieval theories of ratio publicae utilitatis that sought to establish princely regimes. It is the status that each citizen obtains in a republic in virtue of being capable of managing their own affairs (sui juris), that is, in Rawls terms, the status of being politically or fully autonomous. To have sui juris status means two things in the vocabulary of the later Rawls: first, to be considered by all as capable of participating on equal terms in the construction of principles of justice that apply to all;87 and, second, to be considered by all as the last judge of the goodness of anything for oneself.88 Through its political, constituent power, a people recognizes the sui juris status of its citizens and establishes the priority of this status with respect to the state in and through the political constitution that it gives to their political association.89 This simply means that sui juris status is made good through the application on the part of the basic structure of the political society of the principles of justice (equal claim to a scheme of equal rights, and the unequal distribution of honors must be open to all and it must favour the least advantaged).90 From the point of view of public reason, the rights and honors that are recognized and applied by the basic structure exist to empower the citizens in such a way that each can see in the other an equal source of right or justice (in Rawls, jus is always a question of sui juris).91 In Rawlss political liberalism, the state exists by reason of a society that is thoroughly politicala society whose basic structure is intended to allow individuals to achieve the full autonomy of citizens. In the later Rawls, the state is no longer what grants political unity to society. I take this to be his radical response to the fact of oppression, an oppression that originates when legitimate state power is used to impose political unity on a society based on the consensus of a majority of citizens to one reasonable comprehensive doctrine. In my reading of Rawlss political liberalism, the principles of justice are a common good in the sense that they grant a form of libertythe status of being sui juriswhich is possible to enjoy only in a politicized society. Such a society is politicized not because the state can interfere in everyones life whenever it so desires, but precisely for the opposite reason: because the
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state must confront and justify itself before the power of the people. The equal moral value of the individual in Rawls is not a primordial moral fact but a consequence of the politically constructed sui juris status:
We say: everyone is equally capable of understanding and complying with the public conception of justice; therefore all are capable of honoring the principles of justice and of being full participants in social cooperation throughout their lives. On this basis, all view themselves as equally worthy of being represented in any procedure that is to determine the principles of justice that are to regulate the basic institutions of their society. This conception of equal worth is founded on the equally sufficient capacity (which I assume to be realized) to understand and to act from the public conception of social cooperation.92
Because the political or public reason for a political society is the exercise of the capacity or power that each citizen has of being sui juris, an equal source of right, justice can exist neither in the isolated individual (for example, in the form of negative liberty) nor in the public person (for example, in the form of legitimate state authority). Justice exists in the procedure itself which publicly represents all individuals as citizens in an equal manner, as equal members of a people, that is, of an association based on fair terms of cooperation.93 The proper response to Barrys objection that a political conception of justice is unnecessary once justice is tied to the reasonableness of individuals is that, for Rawls, such reasonableness is inseparable from the recognition by others of the individuals status of partaking equally in the government of public affairs. Either reasonableness is political, or it is not. Additional evidence for this reading is contained, in nuce, in Rawls strikingly republican assertion according to which the good in justice as fairness is that of the good of political society.94 In other words, it is not only as an instrument of justice that political society, and eventually the duly constituted state, is a good for the people as a whole. More fundamentally, the principles of justice exist to constitute a society that is political because it is composed of equal and free citizens. In that sense, the aim of justice is completely political. Thus, citizens form a political society that is a good for them not only because such a society is instrumental to the pursuit of their individual interests (their conceptions of the good), but more importantly, because the political society applies justice even when this application goes against the best (most rational) interests of individuals. In brief, the good of political society is the good of being a citizen of that society; and the good of being citizens is the good of being recognized
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by all others as free and equal. There is no such mutual recognition without the political society because this mutual recognition is achievable only through the basic structure securing the equal rights of all (this is the reason for the state). But, at the same time, there can be no well-ordered state without mutual recognition between citizens. Here, political society transcends the reason for the state, the political is separate from the state, and the political does not have the state as its immanent telos. Through this mutual or public recognition, the basic needs of the people are taken into account and thus the stability of the society (status regni) is secured without having to assign to the government (status regis) a superior right to the one belonging to the status of all citizens.95 The good of justice is nothing less than the good of constituting a political society understood as a people composed of sui juris citizens. However, this is very close to, if not identical with, the well understood republican conception of political society.96 If this reading of the primary sense of public reason in the later Rawls is correct, then what is the public reason of the state according to his account? The state, and all citizens who participate in politics by seeking office or supporting those who do, must justify their actions before the entire body of citizens and try to show that the laws and measures they advocate protect the sui juris power or status of the citizens. The state ought to have an institution, for instance a Supreme Court charged with judicial review, where this reason of the state is publicly articulated.97 Only under this condition of protection are citizens obligated to obey the norms and measures of the state.98 In Rawls, just as in Schmitt, one finds the tacit use of the Hobbesian formula protego ergo obligo to understand the legitimacy of the state. Some interpreters have remarked on the possible affinity between Rawlss understanding of the political and Hobbess idea of public reason.99 In the latter, the institution of the sovereign, through the consent of all, authorizes one person to decide the content of the reasonable faith (that is, the content of public reason) in a neutral manner with respect to the religious convictions at war with each other. Hobbess solution postulates an identity between the will of the sovereign and public reason. This allows him to situate liberty of conscience as a purely private matter, of indifferent value to the state. I understand Rawlss idea of public reason as a critique of Hobbess solution. By giving the use of public reason over to the sovereign, Hobbes prevents the people from having access to or even formulate the reasons of the state. But this move, on Rawlss account, deprives the state of the source of its proper legitimacy, with the consequence that more instability is generated. In this respect, when Rawls, in a very un-Hobbesian and un-Schmittian
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manner, defends the public discussion of revolutionary intentions,100 his point seems to be that the stability of a political society requires that the legitimacy of the state be considered by all citizens as secondary with respect to the source of all state legitimation (i.e., the power of the people), just as a constituted power ought to be secondary to a constituent power.101 The people need to maintain their constituent power in relation to the state, for any other less critical and more credulous stance on their part gives the state an incentive to make its reasons less than completely public. Following what Kant postulates in Towards Perpetual Peace with regard to the inverse relation that obtains between publicity and war, a decline in the power of the people can make the state more willing to engage in wars that the public would have never consented to in the first place, leading to instability. Following the same rationale, the public reason of the state must demonstrate that it is disposed to defend the power of the people even when the application of the principles of justice may go against the best interests of some individuals. In so doing, the state demonstrates that its public reason is superior to the reason of private individuals. As I have argued at length, in the original position, there is already a public reason not only because the representatives must rationally choose principles of justice for their constituents and these must also be such that other representatives can consent to them, but because the original position, as the later Rawls models it, constitutes the power of the people in the sense that it is constitutive of the status of being sui juris, which characterizes the politically autonomous citizen. If this is true, then the good of political society in its most basic sense is not the good of the state, but the good of having citizens endowed with the right to be superior to the state. In this sense, Rawlss original position as a device of representation corresponds to Kants republican principle of representation, intended to separate the power of the people from the sovereignty of the state, assigning to the former superiority over the latter.102 Likewise, the original position and its public use of reason corresponds to Kants famous advocacy for a public use of reason in An Answer to the Question: What is Enlightenment? In relation to the original, medieval idea of ratio publicae utilitatis, Kant maintains the first sense of the termthe reason for the utility of an office to society as a wholebut uncouples it from the reason of the public official. He thereby denies that the public officials use of reason has a public character, and allows the reading public at large to participate in the discussion of what is of public utility.103 This understanding of public reason in Kant corresponds to the first maxim of reflective judgment in section 40 of the Critique of Judgment: to think for oneself (rather than rely
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on the opinion of an authority). Kants subversive move, compared with the medieval tradition of public reason, consists of questioning the sovereign state as the embodiment of the public, thus questioning the states claim that it is the highest representative of societys good.104 Several features of the medieval model of full powers (plena potestas) can be identified in Rawlss idea of the original position as a device of representation. In Rawls, for instance, the goal is to make a final, substantive decision or judgment on the fair terms of political association: procedure aims at just decisions to which participants in the process have given their consent ex ante, analogous to the idea of full powers in the medieval kingly court.105 In the medieval court it was only and always representatives of the people, and not the people itself, who could argue on matters of ultimate jurisdiction. Similarly, in Rawls, the interests of the individual are represented by the rational, moral power granted to her representative who, much like a lawyer in court, seeks to defend the best interests of his or her constituent. In the Rawlsian original position, just like in the medieval kingly court, what is at stake are the principles of justice that will govern the basic structure that affects everyone, and is therefore an affair of everyone (quod omnes tangit), calling on their right to participation. But in Rawls, of course, there is a crucial departure from the premises of the medieval understanding of full powers and political representation, namely, the idea of a veil of ignorance behind which the rational representatives find themselves. This departure corresponds to his adherence to Kants subversion of the medieval idea of public reason. Public reason here, at the most primordial level, stands for the outcome of a decision procedure whereby rational representatives are placed in a situation that constrains them to be reasonable. This constrains them to adopt what Kant calls, in the Critique of Judgment, the second maxim of reflective judgment: the enlarged mentality that comes by putting oneself in thought in the place of the other. The idea of a veil of ignorance in Rawlss device of representation is diametrically opposed to Schmitts device of representation. For Rawls, the rational representatives are not, taken by themselves, reasonable, and there is no final judge or highest tribunal presiding over the give and take of reasons between the representatives. This means that, for Rawls, justice has no personal representative; justice cannot be impersonated. Rawlss original position communicates to all citizens equally that no public office and, a fortiori, no public official represents justice because justice consists in those fair terms of their association whose application, by the basic structure of the association, generates at once their power and their right. Thus, in a first
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moment, the representation achieved through the original position gives the superior right to the public reason that is constitutive of citizens. In a second moment, this power of the citizens as sui juris becomes the constituent power of a people, which is intended to give these citizens their political constitution through another device of representation, namely, that of a constitutional convention.106 The constituent power of a people decides the kind of state and its powers that are most likely to apply the principles of justice (i.e., grant stability) and thus protect the good of political society. The draft of any such political constitution must always be brought back for discussion and approval to all citizens. This return of the representative to the citizen for further consultation corresponds to the idea of a referendum. Here the distinction that Rawls makes between the points of view of fully autonomous citizens and that of ourselvesof you and me who are elaborating justice as fairness and examining it as a conception of political justice,enters into play. This is because no matter what the body of autonomous citizens decides with regard to the fair terms of social cooperation that they choose to adopt, for Rawls, the final decision as to the worth of a political conception of justice depends on the possibility of its standing in reflective equilibrium with our more firm considered convictions of political justice.107 This possibility corresponds to the adoption of Kants third maxim of reflective judgment in the Critique of Judgment: to stand in agreement with oneself. Once again, Rawls employment of the original concepts composing the idea of due process, namely, full powers and quod omnes tangit, occurs in a context that is determined by Kants subversion of the medieval idea of public reason: the third maxim of reflective judgment standing for the possibility of a referendum as an essential component of political representation. Originally, the idea of giving full powers to the representatives was designed to avoid the need for referenda, or at least keep it under control as much as possible, in the interest of preserving the integrity of the sovereigns final judgment. In a third moment of Rawlss argument on representation, which corresponds to the public reason of the state, one finds yet another device of representation: an institution of the state such as a Supreme Court, which is to stand as an exemplar of public reason in the sense that such a court must communicate to all citizens the possibility that they ought to act as judges of the government.108 Both the court and the ordinary citizen, as a matter of their duty of civility,109 should check whether the laws and measures of the state correspond to the principles of justice that would have been chosen by sui iuris citizens as modelled in the original position (i.e., not in an ordinary, but in an extraordinary situation), and ratified in the form of a
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constitution by the people qua constituent power represented in a constitutional convention. In sum, in Rawls, just like in Schmitt, there is a clear distinction between an extraordinary legislation that corresponds to the first two moments of representation, and an ordinary legislation that corresponds to the third moment of representation. Similarly, as in Schmitt, Rawls asserts that the extraordinary is always superior to the ordinary. But what is extraordinary in Rawls is not the authority of the sovereigns judgment, as much as the power of every ordinary citizens judgment in so far as he or she is recognized by all others as an equal and free member of a revolutionary, constituent people. Rawlss idea of public reason has been criticized for allegedly being insufficiently open or tolerant with respect to public or democratic deliberation and for falling short of the kind of communicative rationality that one can find in the wider sense of the public sphere.110 In recent times, the debate about public reason has focused on the degree to which it should or should not be open to religious reasons; whether letting such reasons into public political deliberation encourages or discourages oppression.111 Without wishing to engage this debate here, it is undeniable that these discussions are symptomatic of the worry that the idea of public reason is compromised with the reasons of sovereignty, and thus with the imposition of silence on religious voices in the sphere of public right. In spite of the fact that neither Rawls nor Schmitt are Platonists when it comes to political philosophy, their use of the idea of public reason remains within the domain of an identity between the strongest reason and the reason of the strongest which, as Derrida has recently argued, is established in the Western philosophical tradition through Platos arguments for the necessity of having philosophers as kings.112 This identity can be found at work in both Rawls and Schmitt in the sense that for both public reason needs to be a reason that will meet with the reflected (not aggregate) agreement or support of the most citizens (thereby generating more knowledge and more power for the people). Furthermore, in both of their conceptions this public reason grants the state, as representative of political society, the superior right in relation to the rights of private individuals and groups. But if the strongest reason in the main tradition of Western political theory tends to be the reason of the strongest (in this case, the public reason of the legitimate state), then the reasons of the weakest will also appear in the political public sphere as weak reasons. By definition, these reasons never rest at the basis of public right, of political justice. This is not only because they are the reasons of the powerless, but also because they
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are viewed as minoritarian or immature reasons, reasons not sufficiently enlightened to obtain the assent of a possible majority. There is a sense in which the very idea of public reason, rather than providing the essential response to the fact of oppression, may be instrumental in preserving it.
Conclusion: Is Public Reason the Reason of the Strongest?

I do not think that the Schmittian link between public reason and sovereignty has any answer to this kind of worry. Schmitt always took the side of order against anarchy, and of homogeneity against singularity. Conversely, from the beginning of his work, Rawls takes seriously the problem posed by the repression or exclusion of minoritarian reasons for the stability of a political association, as shown by his frequent discussions of civil disobedience and the right to voice extreme forms of dissent to government policies. His last attempt at a response to this problem is contained within the proviso that supplements his idea of public reason. Given the idea of public reason as formulated through reasons that one could give to each other in a reciprocal fashion and in a situation of non-domination, the proviso states that public reason can also be composed of what I have been calling weak reasons formulated in a situation of domination, provided that these can eventually be reformulated in terms of strong reasons, that is, reformulated in terms that can be adopted by public right.113 In other words, the reasons of the weak and of the oppressed, which have always given ground for disobeying the state, must be granted a place within public reason and not simply tolerated within the larger, non-political public culture provided they can be seen, in the present, as applications of the principles of justice of citizens and, in the future, translated into the reasons of the state. Rawls proviso indicates that the idea of public reason needs a supplementary moment of self-reflection, which could bring it to acknowledge that its single-minded adherence to the strongest reasons may be its tragic weakness. The single-minded pursuit of the strongest reasons, and their achieving a superior right, signals an absolutization of the dimension of legitimacy within the political which may, in the long run, be a source of instability for the political association. The proviso of the later Rawls can be interpreted as an application to a wider conception of the public sphere of his notion that public reason is the form taken by the principle of toleration when this is applied to philosophy itself.114 But I suspect that if Rawls proviso is only taken to express the application of the principle of toleration
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back on to the idea of public reason itself, then this kind of reading of the proviso will not suffice to provide the idea of public reason with the kind of self-reflexivity it needs to acknowledge the paradoxical weakness of the strongest reasons. By way of conclusion, I would like to suggest another avenue, to be pursued more systematically in future work, which would lead to the uncoupling of public reason from sovereignty. As mentioned above, Rawls associates his idea of public reason with Kants discussion of the public use of reason in What is Enlightenment? Kant reassigns the use of reason from its location in a public office, complete with the finality proper to that office, to hand it over to any citizen who could make use of his or her reason publicly yet not in virtue of occupying any office (ex officio) and without a predetermined finality. It follows that the public use of reason must not only be composed of the reasons that the state gives to legitimate its good for political society in general, but must legitimate before the people the good of the state. The public use of reason should also be a use of reason that leads to a public judgment (or public opinion) that is constitutive of a people or political society, in the moment when the purposes of the state are out of play. This would be a use of reason for the sake of a political judgment that interrupts the functioning of relations of legitimate rule. Thus, the question of how to conceive of a public reason that would bring together the strongest reasons (the political) and the reasons of the weak (the anarchical), can now be rephrased as follows: Is there a critical and public use of reason other than its sovereign use, the latter being a use through which the practice of rule or government is linked as a necessary component of the good of political society? That is, is there a use of reason other than that which is intended to motivate the obedience of subjects to their legitimate political order? In the Kantian corpus there seems to be a public use of reason whose goal is the critique of obedience (and which, therefore, goes beyond the famous exhortation to argue all you like, but obey! of What is Enlightenment?). However, such a public use of reason is in reality the use of reason made by the faculty of reflective judgment, which is significantly opposed, in Kant, to the use of reason on the part of determinant judgment in the faculties of pure and practical reason. To date, the Rawlsian idea of public reason seems to have been modelled more on the idea of a critique of pure reason. But if this idea is to be uncoupled from and opposed to the logics of sovereignty, then it would appear a more promising path for public reason to model itself on the Kantian idea of a critique of judgment.115 In the former sense of critique, all metaphysical claims stand in judgment before a tribunal of
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reason established on the basis of a partition between the sensible and the intelligible that is intended to filter through the strongest reasons and place the principle of reason itself on a secure footing.116 But the use of reason on the part of the power of judgment, when employed reflectively, functions without finality and makes possible something like a critique of the critique (of pure and practical reason), that is, a partition of the sensible that does not find in the principles of pure or practical reason its definitive criterion. Whenever reflective judgment makes use of the ideas of reason, it makes possible judgments that are the product of a heightened self-reflexivity such that they no longer count as mere vehicles for the application of first principles, but rather are judgments whose peculiar autonomy from the faculties of pure and practical reason turn on their capacity to interrupt just this kind of application. They are judgments, in short, that question the sovereignty of reason, and thereby undermine the identity between the strongest reasons and the reasons of the strongest. Such an interruption of sovereignty is the condition of possibility for the emergence of an order without law, a space of no-rule, where a public can constitute itself through agreement on judgments whichbecause they are radically disinterestedcan never be fully translatable into the terms of a states public reason. Thereby, they are judgments which preserve the critical disjunction (krinein) between a people and its government that characterizes Kants conception of republicanism. Such a republican modality of the public use of reason would distinguish the strength and the weakness of reasons no longer on the stage afforded by the sovereign tribunal of reason, but on a different stage, one that permits the recollection of the claims of justice of those members of society whose modality of participation in that society as a collaborative endeavour has been imposed on them, i.e., of those members of society who are unrepresentable according to the devices of representation offered by the basic structures of society. This new idea of public reason would allow us to address the oppression that is generated by political rationalism itself.
Notes
1. For some examples of such critiques cf. Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca: Cornell University Press, 1993); Jeremy Waldron, Law and Disagreement (New York: Oxford University Press, 1999); Jeremy Valentine and Benjamin Arditi, Polemicization: The Contingency of the Commonplace (New York: New York University Press, 1999); William Connolly, Why I Am Not a Secularist (Minneapolis: University of Minnesota Press, 2000) and Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, 2004), 538-50.
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2. Cf. Chantal Mouffe, Deliberative Democracy or Agonistic Pluralism, Social Research 66, 3 (1999):745-58, and Chantal Mouffe, The Return of the Political (London: Verso, 2006). 3. On how matters stand between Rawls and Schmitt viewed from a Rawlsian perspective, cf. Charles Larmore, The Morals of Modernity (Cambridge: Cambridge University Press, 1996). For a brief but elegant presentation of the received reading of the reasonable in Rawls, and for the kind of criticism that defenders of deliberative democracy address to Rawlss idea of public reason, cf. Rainer Forst, The Rule of Reasons. Three Models of Deliberative Democracy, Ratio Juris 14, 4 (2001):345-78. 4. Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker & Humblot, 2002), 20 and John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 374. For a detailed analysis of the senses in which Rawls distinguishes the political from politics, and for a critical discussion of the readings of Rawls as anti-political thinker, cf. Roberto Alejandro, What is Political About Rawlss Political Liberalism? The Journal of Politics 58, 1 (1996):1-24. 5. On the idea of contested concepts, cf. William Connolly, The Terms of Political Discourse (Princeton: Princeton University Press, 1993). 6. On Schmitts relation to liberalism, with all of its ambiguities, cf. John McCormick, Carl Schmitts Critique of Liberalism (Cambridge: Cambridge University Press, 1997); Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy (Cardiff: University of Wales Press, 1998); and Carlo Galli, Carl Schmitts Antiliberalism: Its Theoretical and Historical Sources and Its Philosophical and Political Meaning, Cardozo Law Review 21 (1999):1597-1617. 7. Rawls, Political Liberalism, 13. 8. Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996), 30. 9. Rawls, Political Liberalism, 5, 35. 10. Cf. Raymond Geuss, History and Illusion in Politics (Cambridge: Cambridge University Press, 2001) for an argument on the importance of genealogy when one does the analysis of political concepts. 11. For recent treatments of Schmitts jurisprudence, but contextualized mostly in reference to his immediate predecessors or contemporaries, cf. David Dyzenhaus, Legality and Legitimacy (New York: Oxford University Press, 1997); William E. Scheuerman, Carl Schmitt: The End of Law (Lanham, MD: Rowman and Littlefield, 1999); Jeffrey Seitzer, Comparative History and Legal Theory: Carl Schmitt in the First German Democracy (London: Greenwood Press, 2001); and Duncan Kelly, The State of the Political: Conceptions of Politics and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann (Oxford: Oxford University Press, 2003). On Schmitts reception in the English-speaking world, cf. Peter Caldwell, Controversies over Carl Schmitt: A Review of Recent Literature, The Journal of Modern History 77 (2005):357-87. 12. Cf. Brian Barry, Culture and Equality (Cambridge: Harvard University Press, 2001), 331 n.27 who dismisses the turn to the political in the later Rawls: Rawls has by now abandoned most of the ideas that made A Theory of Justice worthwhile. I have no interest in defending anything Rawls has written since about 1975, including his subsequent interpretations of A Theory of Justice or his revisions of its text. Rawlss current position, embodied in The Law of Peoples, amounts to a rather muddled version of Michael Walzers anti-Enlightenment particularism. But even Larmore, in his presentation and defence of political liberalism, hardly touches on the idea of the political in Rawls. He chooses to present political liberalism starting from the idea of neutrality; giving to the idea of neutrality a moral rather than a political
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meaning (Larmore, The Morals of Modernity, 125-32). For a view defending the importance and novelty of Political Liberalism in comparison to A Theory of Justice, cf. Burton Dreben, On Rawls and Political Liberalism, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), who argues that Rawls thereby intended to address the question of whether the notion of a constitutional liberal democracy is internally consistent (Dreben, On Rawls and Political Liberalism, 319, 322). 13. Cf. Bernard Manin, On Legitimacy and Political Deliberation, Political Theory 15, 3 (1987):338-68, for an example of applying in an abstract way the distinction between deliberation and decision to Rawls. Paradoxically, Manin ends up associating Rawls both to Rousseau and to decisionism. Cf. Bonnie Honig, Between Decision and Deliberation: Political Paradox in Democratic Theory, American Political Science Review 101, 1 (2007):1-18 for another return to Rousseau to displace altogether the opposition between decision and deliberation. 14. Brian Barry, John Rawls and the Search for Stability, Ethics 105 (1995):874-915. 15. Ibid., 883-85. 16. Ibid., 890. 17. Rawls, Political Liberalism, xvii-xx. 18. Ibid., 257-68. 19. Cf. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999), 24, where Rawls understands his project as a critique of utilitarian thought and its erasure of the point of view of the other: utilitarianism adopts for society as a whole the principle of rational choice for one man. . . . Utilitarianism does not take seriously the distinction between persons. For the priority of the other in Schmitt, see the definition of the political as the distinction of friend and enemy denotes the utmost degree of intensity of a union or a separation, of an association or dissociation (Schmitt, The Concept of the Political, 26). Cf. Carl Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947 (Milan: Adelphi, 1993), 92 on the Hegelian theme of Der Feind ist unsre eigene Frage als Gestalt, commented upon at length by Jacques Derrida, Politics of Friendship (London: Verso, 1997) and Heinrich Meier, Die Lehre Carl Schmitts: Vier Kapitel zur Unterscheidung politischer Theologie und politischer Philosophie (Stuttgart: J.B. Metzler, 1994). 20. Cf. Quentin Skinner, Visions of Politics. Volume 3: Hobbes and Civil Science (Cambridge: Cambridge University Press, 2002), 119, 134-40, for a discussion of the problem of application in Hobbes and for Hobbess reliance on the idea of public reason to resolve it. 21. For another discussion of this crucial point, cf. Jody S. Kraus, Political Liberalism and Truth, Legal Theory 5 (1999):45-73. 22. Cf. Schmitt, The Concept of the Political, 53; John Rawls, Collected Papers (Cambridge: Harvard University Press, 1999), 329; Rawls, Political Liberalism, 54-59. What they understand under pluralism, and the conditions that make it necessary for modern democracies to be pluralist, is of course different in both authors. Schmitt has no equivalent theory to Rawlss burdens of judgment that accounts for the fact of reasonable pluralism. 23. Cf. Rawls, Collected Papers, 411, 425; Schmitt, The Concept of the Political, 43. 24. Both Rawls and Schmitt address the pluralists of their time (primarily Isaiah Berlin for Rawls, and Harold Laski for Schmitt). Cf. William E. Connolly, Pluralism (Durham: Duke University Press, 2005) for an updated discussion of the conflict between pluralism and sovereignty from a pluralistic perspective that is equally at odds with Rawls and with Schmitt. 25. Cf. Rawls, Collected Papers, 427-29 and Rawls, Political Liberalism, 392. I discuss in what sense one can speak of right reasons in Schmitt below. 26. On the public nature of such ultimate political judgments, cf. Carl Schmitt, The Crisis of Parliamentary Democracy (Cambridge: MIT Press, 2001), 56; Rawls, Collected Papers, 324-25.
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27. On the people, cf. Schmitt, The Crisis of Parliamentary Democracy, 16; Schmitt, The Concept of the Political, 19; and Rawls, Political Liberalism, 68, where political power . . . is the power of the public, that is, the power of free and equal citizens as a collective body. 28. Cf. Rawls, Political Liberalism, 29 n. 31; Rawls, Collected Papers, 394-95, 434-37; Schmitt, The Crisis of Parliamentary Democracy, 42-43, 64-68; Carl Schmitt, Der Leviathan in der Staatslehre des Thomas Hobbes (Stuttgart: Klett-Cotta, 1982), 66-68, 82. 29. Rawls says that the condition of publicity essential to the idea of public reason means that a well-ordered society does not require an ideology in order to achieve stability, understanding ideology (in Marxs sense) as some form of false consciousness or delusory scheme of public benefits (Rawls, Collected Papers, 326). 30. Cf. Rawls, Political Liberalism, 37; Dreben, On Rawls and Political Liberalism, 319; Kraus, Political Liberalism and Truth, 48-49. 31. Cf. Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947, 59. In Rawls the equivalent rejection of a metaphysical foundation of justice is expressed in various ways. For instance, when he claims that the absence of commitment to these ideals [of autonomy and individuality], and indeed to any particular comprehensive ideal, is essential to liberalism as a political doctrine (Rawls, Collected Papers, 409). But also: Those who reject constitutional democracy with its criterion of reciprocity will of course reject the very idea of public reason. For them the political relation may be that of friend or foe, to those of a particular religious or secular community or those who are not; or it may be a relentless struggle to win the world for the whole truth. Political liberalism does not engage those who think this way. The zeal to embody the whole truth in politics is incompatible with an idea of public reason that belongs with democratic citizenship (Rawls, Collected Papers, 574). As I shall discuss below, Schmitt would not have disagreed with this citation, to the contrary. This is, in fact, the meaning of the motto that he appropriates in Ex Captivitate Salus: silete, theologi, in munere alieno! (Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947, 72). The theologians who have to keep silent in the domain of public right or political justice are, to employ Rawlss words, representative of those who struggle to win the world for the whole truth. 32. Cf. Rawls, Collected Papers, 574, where he says that the political relation is contained in the idea of public reason. In turn, the idea of public reason is internally related to the idea of legitimacy (Rawls, Political Liberalism, 217ff.). 33. Cf. Gaines Post, Studies in Medieval Legal Thought: Public Law and the State 11001322 (Princeton: Princeton University Press, 1964), 112. For the early history of the idea of public reason I shall rely on the results of two decades of research into late medieval political thought conducted by Gaines Post during the 1940s and 1950s and republished in book form in the early 1960s. Due to lack of space, I cannot enter into the details of the heated debate, which in many ways climaxes during those decades, concerning the relation between political theory and jurisprudence in medieval thought and its significance for modernity. In the AngloAmerican world, this debate begins with the reception of Gierkes work starting with Figgis, through McIlwain, Kantorowicz, and Post, and reaching all the way to the recent work of Tierney, Pennington, Oakley, and Skinner. In my opinion, Posts results seem not to have been refuted by subsequent historical research, although one has to admit that his work has received minimal attention on the part of political theorists, apart from specialised literature, as exemplified in Donald E. Queller and Joseph R. Strayer (ed.), Post Scripta. Essays on Medieval Law and the Emergence of the European State in Honor of Gaines Post (Rome: 1972). The entry on Law, legislation and government, 1150-1300 by Pennington in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought c.350-c.1450 (Cambridge: Cambridge University Press, 1988), 424-53 still makes ample use of Posts discoveries. The historiography
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of the modern concept of the state, after Quentin Skinners seminal The Foundations of Modern Political Thought, took a different course than the one traced by Post (and Kantorowicz) in their times. On the French literature concerning the origins of the modern idea of the state and its medieval roots, cf. Michel Senellart, Les arts de gouverner (Paris: Seuil, 1998); on the Spanish literature, cf. Bartolom Clavero, Razon de estado, razon de individuo, razon de historia (Madrid: Centro de Estudios Constitucionales, 1991); on the Italian literature, cf. Paolo Grossi, Lordine giuridico medievale (Bari: Laterza, 2004). 34. Post, 241-309. 35. Ibid., 116. 36. Ibid., 91-240. 37. Ibid., 113. 38. In the legal theory, however, the king and his court and council had the power of decision; and if they judged that their case of national defence was proved, they could decide against the pleas of the representatives. To this final decision the representatives must consent in accordance with their full powers (ibid., 157). 39. There can be no due process unless courts can compel consent to their judicial power (ibid., 123). 40. Ibid., 453. 41. Ibid., 290-300. 42. Status in medieval political theory does not have the same meaning as the modern concept of the state, as Skinner correctly points out (Quentin Skinner, The Foundations of Modern Political Thought. Vol. II. The Age of Reformation [Cambridge: Cambridge University Press, 1978], 352-53). On the other hand, Post never claims that it does. His point, as I understand it, is more modestly to show how the late medieval idea according to which the status of the king is inherently superior with respect to other parts of the society played a crucial role in the development, during the Renaissance, of the modern concept of the state. For a useful review of the meanings of the term status and rei publicae status since Cicero, cf. Alejandro Guzmn Brito, El Vocavulario Histrico para la Idea de Constitucin Poltica, Rev. estud. hist. jurid. [online] 2002, n.24 [accessed 28 Sept. 2007], 267-313, http://www.scielo.cl/ scielo.php?script:sci_arttext&pid=s0716-5455200024000009&lng=es&num=iso. Guzmn suggests that status may carry both the sense of stability as of government. 43. Some of the jurists working for the new princes, notably the King of Sicily Frederick II, did argue for the permanent character of the state of exception (Post, 308). However, the norm seems to have been closer to the position of Aquinas, who does refer to the state of necessity and the princely capacity to change the law in such cases (Summa Theologiae 1a2ae Treatise on Law, q. 96, a.5), but, in general, maintains that law is the ordering of a people (constitutio populi), and the institution of law belongs to the people as a whole, or to whomever represents the people as a whole (ibid., q.90, a.3). 44. As first argued in Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty (Cambridge: MIT Press, 1988). Here my interpretation coincides with the thesis argued in John McCormick, Identifying or Exploiting the Paradoxes of Constitutional Democracy? An Introduction to Carl Schmitts Legality and Legitimacy, in Carl Schmitt. Legality and Legitimacy (Durham, NC: Duke University Press, 2004) and in Giorgio Agamben, tat dexception (Paris: Seuil, 2003), who argue that for Schmitt the state of exception is necessary. 45. Schmitt, The Concept of the Political, 46. 46. Ibid., 48. 47. Carl Schmitt, Legality and Legitimacy (Durham, NC: Duke University Press, 2004), 20-22.
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48. For the positive relation between justice and reason, in reference to medieval jurisprudence, cf. ibid., 5-7, and Carl Schmitt, Roemischer Katholizismus und politische Form (Stuttgart: Klett-Cotta, 1984), 23. For the negative relation between justice and reason, in reference to modern, liberal jurisprudence, cf. Schmitt, The Crisis of Parliamentary Democracy, 42-43. 49. A point excellently captured by Hugo Balls essay on Carl Schmitts Politische Theologie now reprinted in Jacob Taubes (ed.), Religionstheorie und Politische Theologie. Band 1: Der Fuerst dieser Welt. Carl Schmitt und die Folgen (Muenchen: Wilhelm Fink Verlag, 1983), 106-8. 50. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 31-33; Schmitt, The Concept of the Political, 38; Schmitt, The Crisis of Parliamentary Democracy, 68. 51. Cf. Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Berlin: Duncker & Humblot, 2004), where the problem of application is the central theme. For an extended treatment of the problem of application in Schmitt, cf. Carlo Galli, Genealogia della politica. Carl Schmitt e la crisi del pensiero politico moderno (Bologna: Il Mulino, 1996), 313-459. 52. On Schmitts ambivalent relation to Hegel and Hegelianism, and in general for his awareness of the crisis of dialectical thought and its consequences in the formation of his political and juridical thought, see, apart from ibid., 3-175, also the important works by Gopal Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2002); and Jean-Francois Kervgan, Hegel, Carl Schmitt: la politique entre spculation et positivit (Paris: PUF, 2005). 53. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 13, 31; and Agamben, tat dexception, 68-70. 54. Schmitt, Legality and Legitimacy, 18. 55. Ibid., 69. 56. Ibid. 57. On the theme of speed of legislation and its relation to Schmitts critique of parliamentarism, cf. William E. Scheuerman, Liberal Democracy and the Social Acceleration of Time (Baltimore: The Johns Hopkins University Press, 2004). 58. Schmitt, Legality and Legitimacy, 41-83. 59. Ibid., 3-13. Denn jede Ordnung ist eine Rechtsordnung und jeder Staat ein Rechtsstaat (Schmitt, Roemischer Katholizismus und politische Form, 41). This is not to deny, of course, that the Schmittian conception of a Rechtsstaat is very different from its conception in the theories of legal positivism from Laband to Kelsen; just as it is different from the idea of the republican-Kantian Rechtsstaat; or from the idea of a Rechtsstaat in Gierke. Part of the problem is the intrinsic and irreducible polysemy of the word Recht, which can mean justice (jus) or law (lex) or legal order or legal rights (Rechte). For a discussion of Schmitt in the context of the history of the idea of Rechtsstaat, cf. Ernst-Wolfgang Bckenfrde, Recht, Staat, Freiheit (Frankfurt: Suhrkamp, 2006), 143-70 and 344-66. 60. Schmitt, The Concept of the Political, 45-46. 61. Schmitt, Legality and Legitimacy, 69; Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 5-7. 62. Cf. Schmitt, Legality and Legitimacy, 6, where he speaks of the deciding will that judges the applicability of right or justice: the normative fiction of a closed system of legality emerges in a striking and undeniable opposition to the legitimacy of an instance of will that is actually present and in conformity with right. 63. Ibid., 4, 71; Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 31-33. 64. Schmitt, The Concept of the Political, 19.
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65. Schmitt, Legality and Legitimacy, 9; Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 12-13. 66. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 33. 67. For an overview of these ideas of legitimacy and order in their historical context, cf. David Bates, Political Unity and the Spirit of the Law: Juridical Concepts of the State in the Late Third Republic, French Historical Studies 28, 1 (2005):69-101. 68. Schmitt, The Concept of the Political, 52-53. 69. Ibid., 46. In a major departure from medieval legal theory, Schmitt, citing Grotius, rejects the connection between the application of jus belli and the metaphysical idea of a just war (Schmitt, The Concept of the Political, 49). 70. Schmitt, The Concept of the Political, 49. 71. Ibid. 72. Each participant is in a position to judge whether the adversary intends to negate whether his opponents way of life and therefore must be repulsed or fought in order to preserve ones own form of existence (ibid., 27). 73. Schmitt, The Crisis of Parliamentary Democracy, 9ff. 74. Ibid., 26-28. 75. Schmitt, Legality and Legitimacy, 93. 76. Carl Schmitt, Die Diktatur (Berlin: Duncker & Humblot, 1994); Schmitt, The Crisis of Parliamentary Democracy. 77. Schmitt, Die Diktatur, 142; Carl Schmitt, Verfassungslehre (Muenchen: Duncker & Humblot, 1928), 77-87. On the use and misuse of constituent power in Schmitt cf. Renato Cristi, The Metaphysics of Constituent Power: Carl Schmitt and the Genesis of Chiles 1980 Constitution, Cardozo Law Review 21 (2000):1749-75. For a defence of Schmitt as theorist of democracy, cf. Andreas Kalyvas, Carl Schmitt and the three moments of democracy, Cardozo Law Review 21 (2000):1525-65. 78. Diese formale Eigenart des rmischen Katholizismus beruht auf der strengen Durchfhrung des Prinzips der Reprsentation (Schmitt, Roemischer Katholizismus und politische Form, 14). One should note that Post, among others, dates the application to public law of Roman private law principles to the time of Innocent III, when Roman Catholicism went through a particularly acute political phase. For reasons of space, I cannot here discuss the complex history of the relation between Roman Catholicism and what Schmitt calls political form, nor the relation between Schmitts interpretation of the Catholic principle of representation and the conciliar theories of representation that many have seen fit, since Figgis, to identify with the origins of modern parliamentarism. 79. On the defence of the states might in political Catholicism, cf. Schmitt, Roemischer Katholizismus und politische Form, 53-56, in particular his adoption of the standpoint of the Grand Inquisitor. On this reading of Dostoyevsky in Schmitt, cf. Thodore Pallogue, Sous loeil du Grand Inquisiteur. Carl Schmitt et lhritage de la thologie politique (Paris: Les ditions du Cerf, 2004). 80. Schmitt, Roemischer Katholizismus und politische Form, 43. 81. Ibid., 36. 82. This is why Schmitt says that the political form of Roman Catholicism represents something more than worldly jurisprudence, not only the idea of justice, but also the Person of Christ (ibid., 50). Cf. Ernst H. Kantorowicz, The Kings Two Bodies. A Study in Medieval Political Theology (Princeton: Princeton University Press, 1997), 232-72; and Post, Studies in Medieval Legal Thought: Public Law and the State 1100-1322, 434-53, on the motif pro patria mori. Both coincide on the point that this motif originates with late medieval doctrines found
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in Roman Catholicism. The formula first appears in the context of the idea of a just war when the supreme necessity of defending the fatherland . . . makes lawful many things that are otherwise unlawful (Post, Studies in Medieval Legal Thought: Public Law and the State 1100-1322, 437). On the Catholic principle of representation in Schmitt, cf. now Raphael Gross, Carl Schmitt und die Juden (Frankfurt: Suhrkamp, 2005); Samuel Weber, Targets of Opportunity. On the Militarization of Thinking (New York: Fordham University Press, 2005); and Miguel Vatter, Strauss and Schmitt as Readers of Hobbes and Spinoza. On the Relation between Liberalism and Political Theology, The New Centennial Review 3 (2004): 161-214. 83. Rawls, Political Liberalism, 50. 84. In a democratic society, public reason is the reason of equal citizens who, as a collective body, exercise final and coercive power over one another in enacting laws and in amending their constitution (ibid., 214). For a critical analysis of the theory of recognition presupposed by Rawlss idea of the original position, cf. now Christian Lazzeri, Thorie de la justice et sentiments moraux, in Laction en philosophie contemporaine, ed. Stphane Haber (Paris: Ellipses, 2004, 208-234). 85. Rawls, Political Liberalism, 233-35. 86. Ibid., 49-50. On public reason as present in the original position, cf. Charles Larmore, Public Reason, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003). 87. Cf. Rawls, Collected Papers, 316-17 on full autonomy versus rational autonomy; and Rawls, Political Liberalism, 77ff. 88. Cf. Rawls, Collected Papers, 330-31 on citizens as self-originating sources of valid claims. For obvious reasons of space, I cannot here argue why this idea of freedom as sui juris corresponds to the republican ideal of freedom as absence of domination, rather than to the liberal ideal of freedom as non-interference. For the latest formulation of this debate, and a discussion of republican freedom as sui juris, cf. Quentin Skinner, A Third Concept of Liberty, Proceedings of the British Academy 117 (2001):237-68. 89. Hence the importance of the condition of publicity for resolving the problem of stability: citizens affirm their existing institutions in part because they reasonably believe them to satisfy their public and effective conception of justice. Now the notion of publicity has three levels. . . . [The first. . .] means that society is effectively regulated by public principles of justice; that is, everyone accepts and knows that others likewise accept the same principles, and this knowledge in turn is publicly recognized (Rawls, Collected Papers, 324). 90. Rawls, Political Liberalism, 5-6. 91. [T]he scheme of basic liberties is not drawn up so as to maximize anything, and, in particular, not the development and exercise of moral powers. Rather, these liberties and their priority are to guarantee equally for all citizens the social conditions essential for the adequate development and the full and informed exercise of these powers in what I shall call the two fundamental cases (ibid., 332). These cases have to do with the application of the principles of justice to the basic structure of society and to the application of the principles of deliberative reason to guide conduct (Cf. Rawls, Collected Papers, 320). 92. Rawls, Collected Papers, 333. 93. Rawls, Political Liberalism, 16-17, 40-43. 94. Ibid., 201. 95. Ibid., viii, 203. On the status of citizens in Rawls, see also Joshua Cohen, For a Democratic Society, in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), 108.
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96. Cf. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999), 176, for the intention to bypass the dispute about the meaning of liberty. Perhaps because of this intention, that book contains an ambiguity with respect to whether Rawlss conception of liberty is exclusively that of liberty as non-interference. In any case, by Political Liberalism his conception of liberty is no longer simply liberal. I hope to return to this complicated question at greater length in another article. My interpretation is compatible with the more republican reading of Rawls that has lately been suggested by Philip Pettit, Rawlss political ontology, Politics, Philosophy and Economics 4, 2 (2005):157-74. 97. Rawls, Political Liberalism, 231-39. 98. Ibid., 217ff. 99. For another discussion of Rawlss idea of public reason in relation to Hobbes, cf. Duncan Ivison, The Secret History of Public Reason: Hobbes to Rawls, History of Political Thought 18, 1 (1997):125-47. But Rawls distinguishes his idea of the political from the kind of neutrality proposed by politique thinkers, where justice is oriented towards finding a modus vivendi between opposed religious sects (Rawls, Collected Papers, 432-34, 458-61), as well as from the neutrality achieved in the manner of Hobbes (ibid., 422). 100. Rawls, Political Liberalism, 347-56. 101. Thus constitutional democracy is dualist: it distinguishes constituent power from ordinary power as well as the higher law of the people from the ordinary law of legislative bodies. Parliamentary supremacy is rejected. A supreme court fits into this idea of dualist constitutional democracy as one of the institutional devices to protect the higher law (Rawls, Political Liberalism, 233). The constitution is not what the Court says it is. Rather, it is what the people acting constitutionally through the other branches eventually allow the Court to say it is (ibid., 237). For an argument rejecting the idea that Rawls defends a judicial guardianship over the people, cf. Cohen, For a Democratic Society, 115-20. 102. Cf. Immanuel Kant, Toward Perpetual Peace in Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 324-25, where Kant distinguishes the peoples fullness of power (Machtvollkommenheit), which, in a republic, must be represented by the government, from the sovereignty of the state (oberste Staatsgewalt). 103. Cf. Immanuel Kant, Political Writings, ed. Hans Reiss (Cambridge: Cambridge University Press, 1991), 55: But by the public use of ones own reason I mean that use which anyone may make of it as a man of learning addressing the entire reading public. What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted. 104. On Kants subversion of the traditional idea of public reason, cf. John Christian Laursen, The Subversive Kant. The Vocabulary of Public and Publicity, Political Theory 14, 4 (1986):584-603, and now Ciaran Cronin, Kants Politics of Enlightenment, Journal of the History of Philosophy 41, 1 (2003):51-80. 105. Rawls, Political Liberalism, 428-32. 106. Ibid., 402-6. 107. Ibid., 28. 108. On citizens as sovereign judges in Rawls, cf. Cohen, For a Democratic Society, 111. 109. Rawls, Political Liberalism, 217. 110. Cf. Jrgen Habermas, Reconciliation Through the Public Use of Reason: Remarks on John Rawlss Political Liberalism, Journal of Philosophy 92 (1995):109-31. For Rawlss response, cf. Rawls, Political Liberalism, 372-434; on their exchange, cf. Forst, The Rule of Reasons. Three Models of Deliberative Democracy, 369-75.
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111. For the state of the debate as it concerns Rawls and Habermas in particular, cf. Cristina Lafont, Religion in the Public Sphere. Remarks on Habermass Conception of PostSecular Societies, Constellations 14, 2 (2007): 236-56. 112. Cf. Jacques Derrida, Voyous. Deux essais sur la raison (Paris: Galile, 2003). 113. [R]easonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasonsand not reasons given solely by comprehensive doctrinesare presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support (Rawls, Collected Papers, 591). 114. Cf. Rawls, Political Liberalism, 10, 154 for the principle of toleration. For a generalization of Rawlss use of the principle of toleration to philosophy, cf. now Rainer Forst, Toleranz im Konflikt (Frankfurt: Suhrkamp, 2003). 115. Cf. Onora ONeill, The Public Use of Reason, Political Theory 14, 4 (1986):523-51, who does not distinguish between a public use of reason according to reflective, rather than determinant, judgment and conflates both uses. ONeill seems to understand the practice of critique as having the sole goal of securing the authority of reason over against other sources of authority. Arendts attempt to work something like an idea of public reason based on reflective judgment remains incomplete and fragmentary, tributary to a problematic reading of Kants Third Critique. Other recent attempts to rephrase Rawlsian intuitions in the vocabulary of Kants theory of judgment are found in Seyla Benhabib, Judgment and the Moral Foundation of Politics in Arendts Thought, Political Theory 16,1 (1988): 29-51 and Alessandro Ferrara, Justice and Judgment (London: Sage, 1999). 116. I refer here to the vocabulary used by Jacques Rancire, La Msentente. Politique et Philosophie (Paris: Galile, 1995) in an attempt to work out the political implications of Kantian reflective judgment.
Miguel Vatter is an associate professor in the Institute of Political Science at the Pontificia Universidad Catlica, Chile. He is author of Between Form and Event: Machiavellis Theory of Political Freedom (Dordrecht: Kluwer, 2000) and is currently working on a book-length manuscript on Leo Strauss and political theology.

Schmitt and Rawls - Vatter

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Schmitt and Rawls - Vatter

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Political Theory

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Special Section: The Politics of Public Reason

The Idea of Public Reason and the Reason of State

Introduction: Disagreeing About the Political

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Vatter / Public Reason and the Reason of State

The Problem of Stability as a Problem of Application

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Vatter / Public Reason and the Reason of State

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Vatter / Public Reason and the Reason of State

The Origins of the Idea of Public Reason in Medieval Political Thought

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Vatter / Public Reason and the Reason of State

The Idea of Public Reason in Schmitt

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Vatter / Public Reason and the Reason of State

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Vatter / Public Reason and the Reason of State

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The Idea of Public Reason in Rawls

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Vatter / Public Reason and the Reason of State

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Vatter / Public Reason and the Reason of State

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Vatter / Public Reason and the Reason of State

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Conclusion: Is Public Reason the Reason of the Strongest?

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Vatter / Public Reason and the Reason of State

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Vatter / Public Reason and the Reason of State

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Vatter / Public Reason and the Reason of State

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

Vatter / Public Reason and the Reason of State

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

Vatter / Public Reason and the Reason of State

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

Vatter / Public Reason and the Reason of State

Downloaded from http://ptx.sagepub.com at SWETS WISE ONLINE CONTENT on April 5, 2010

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