Political liberalism revisited

I The ‘constitutional horizon’ and its inherent tension

Frank Michelman correctly highlights the centrality of the constitution and the constitutional moment in the picture offered in The Democratic Horizon. Doubtless, as the title of his article suggests, the story of the ‘democratic horizon’ is at the same time the story of a ‘constitutional horizon’ of sorts. In fact, the main adaptive move set in place by democracy in order to survive prohibitively adverse conditions in the 21st century is arguably a thorough adoption of the constitution-centered ‘democratic dualism’ theorized by Ackerman and Rawls and Michelman himself. In his contribution, he raises an important question concerning my view of the legitimacy of authority. He starts by grouping the 10 inhospitable conditions that challenge democracy since the past few decades (some of which he himself identified in a famous essay) ¹ into the two groups constituted by (1) conditions ultimately linked with an ‘occlusion of authorship’, i.e. with a deterioration of the authorship of the laws on the part of citizens through the representative mechanism, and (2) conditions ultimately conceivable as a ‘shortfall of agreement’, i.e. as a partly ongoing and endemic, partly crisis-bound and acute, widening of the gap among the political, moral, social, religious conceptions endorsed by diverse groups of citizens. Through an elegant self-spiraling reconstructive argument, Michelman highlights then an ambiguity underlying my view of democratic legitimacy.

The text from which his reconstruction starts actually comes from chapter 7, on the legitimacy of supra-national forms of governance, but its substance applies to legitimate domestic authority as well. It runs:

We can rethink democracy by replacing the idea that the citizens are ultimately the authors of the laws obeyed by them with the idea that citizens are ultimately the free and equal subscribers of a constitutional pact that in turn serves as a benchmark for the legitimacy of a lawmaking, a regulatory, and an administrative action that may then follow different, more technicized channels. (The Democratic Horizon ² [2014: 178])

In his next move, after pointing out that whereas Rawls’ liberal principle of legitimacy addresses the ‘shortfall-of-agreement’ type of inhospitable conditions, my formulation would target the occlusion of authorship, Michelman reconsiders his initial interpretation and proposes the following rewording of my original text:

We can rethink democracy by replacing the idea that the citizens are ultimately the authors of the laws [immediately demanding obedience from them] with the idea that citizens are ultimately the free and equal subscribers of a constitutional pact that in turn [imposes legal limits on all subordinate legislative and administrative action, and thereby] serves [also] as a benchmark for the legitimacy of such action that may then follow different, more technicized channels [as long as they comport with those limits and directives]. (Michelman, this issue, p. 645; his additions in square brackets)

In the next step of his argument, however, after now acknowledging the full convergence of Rawls’ and my own treating the constitution ‘as binding law enforceable by courts’ and at the same time ‘also as a platform for the legitimation of subordinate laws on which people’s opinions sharply differ’ (Michelman, this issue: p. 646), Michelman suggests that Rawls’ view and my own differ ‘in their implications for the conduct of judicial constitutional review’. More specifically, because my primary object of concern is ‘occlusion of authorship’ – an impression perhaps rooted in his focusing on a formulation coming from the one chapter devoted to supra-national governance – I would give priority to the supreme or constitutional court’s function ‘to “protect” the higher law enacted by the people’, and such priority somehow would commit me to a penchant for ‘some form of “originalism” in judicial constitutional interpretation’ (ibid.). According to Michelman’s interpretation of my text, the reviewing courts ought to commit themselves ‘to some mode or method, be it ever so highly abstracted or extenuated, of extracting from enacting history the actual legislative will of the people themselves’ (ibid.).

Things would instead look differently with Rawls. Because his primary concern, in formulating his liberal principle of legitimacy, is the ‘shortfall of agreement’, as opposed to the occlusion of authorship, then according to Michelman ‘the corresponding call for overseeing courts can be only to bend both the scripted constitutional essentials and the doctrines of their application as far as possible toward values that the judges “believe in good faith … that all citizens as reasonable and rational” could endorse’ (Michelman, this issue: p. 647). This different function can be discharged by courts only by testing some general conception.

This diversity of priorities, according to Michelman, generates different argumentative approaches to democratic legitimacy: ‘originalism for Ferrarians in search of vindication of democratic authorship, the philosophical approach for Rawlsians in search of moral vindication for the rule of legislated law’ (Michelman, this issue: p. 647).

Or so it seems. In his closing paragraphs, Michelman acknowledges once again that Ackerman’s dualist conception of democracy is adopted by me ‘as a response both to occlusion of authorship and to shortfall of agreement’ (Michelman, this issue: p. 647). Consequently, both inflections of the reviewing courts’ function are somehow reflected within my account of democratic legitimacy: their combination is manifest, according to Michelman, in my outline of a ‘multivariate’ democratic polity – a fair scheme of cooperation that encompasses and effectively integrates ‘not only wholehearted endorsers of the society’s scripted constitutional essentials … but also an extended circle of resigned but still reflectively willing prudential cooperators with that system’ (ibid.: 647).

Here is the rub, however: what would the function of the highest court be in such a multivariate democratic polity? On one hand, the multivariate polity would demand a ‘philosophical’ approach of the reviewing courts, in order to remedy the shortfall of consensus linked with hyperpluralism. On the other hand, however, ‘the principle of bending and applying the scripted constitutional essentials as required in reason to sustain the pact of the liberal multivariate polity still contradicts the principle of reading and applying the scripted essentials to match the will or understanding of any historical author’ (Michelman, this issue: p. 648).

In order to allay this tension, concludes Michelman, I could understand the judicial interpreter of the constitutional essentials as the recipient of a mandate to read into the constitution ‘whatever it takes to sustain the pact’. However, we would then come back full circle to the initial interpretation of my view of the constitution as consisting not of binding, enforceable law but merely of a collection of ‘talking points for discourses of legitimation’. Am I implicitly committed, as Michelman’s thought-provoking interpretation suggests, to a politicization and de-juridification of the constitution in spite of my lack of affiliation with political constitutionalism?

My answer to this question unfolds along three distinct directions. Before expounding them, let me recall that the spiral-like, alternating recurrence of one or another version of democratic constitutionalism in his interpretation of my book rests on Michelman’s distinction between (1) what is demanded in order for a dualist democratic polity (and especially for its highest judicial authority) to successfully come to terms with occlusion-of-authorship challenges and (2) what is demanded, instead, in order for it to meet challenges related to the shortfall of consensus. The former challenges are best addressed by asking the ultimate judicial interpreter of the constitution to find what the people actually intended at the time when certain constitutional essentials were first enacted or revised and then to restore the will of the democratic sovereign, occluded by meanwhile mushroomed institutional complexity. Challenges of the second type, related to hyperpluralism, are instead best addressed by entrusting the higher court with a different mandate: to offer a ‘philosophical’ gap-bridging argument that cannot be reasonably rejected. Rawls’ and my own formulations about democratic legitimacy exemplify, according to Michelman, these two modes and there is ultimately no way of reconciling these two divergent formulations of the judicial mandate. Why? Because, in spite of my taking distance from ‘abstract originalism’, nonetheless the primary task of a supreme judicial interpreter entrusted with unblocking occlusion necessarily includes reference, according to Michelman, to some trace of the sovereign will, reconstructed from the duly interpreted original constitution or from some subsequent ‘constitutional moment’ – a constraint from which a supreme judicial interpreter entrusted with the alternative task of remedying the shortfall of consensus in a reasonably non-rejectable way is remarkably free. In sum, in the first mode the interpreter of the constitution is asked to tell the public what the sovereign people did will, in the second to tell us what it should will.

My first line of response then consists of pointing to the fact that this opposition turns out to be less unbridgeable than it looks at first sight, if only we pause to think that whatever the people willed – whether by way of original constitutional essentials or their subsequent modifications – was always necessarily willed against a set of background assumptions themselves not immune from critical scrutiny. As an example, let me mention the transition from Plessy to Brown as indicative of two quite different interpretations of the ‘equal protection’ clause of the Fourteenth Amendment, each offered by the highest contemporary interpreter of the constitution respectively in 1896 and 1954. ³ Even if we approve of Brown as a valid application of an ‘originalist’ approach, it seems that it could be said: the people endorsed ‘equal protection’ since the time of the Fourteenth Amendment, but whereas in 1868 and as late as in 1896 the ‘badge of inferiority’ associated with racial separation was considered non-existent (or existent ‘solely because the colored race chooses to put that construction upon it’, as the court said in Plessy), ⁴ half a century later the interpreter of the constitutional script found, in the light of evidence partly of a social-scientific nature, that ‘separate educational facilities are inherently unequal’ and violate the ‘equal protection of the laws’, because segregation is ‘usually [emphasis added] interpreted as denoting the inferiority of the negro group’. ⁵ On segregation, then, the Warren court arguably neither articulated what the people should will (thus making itself vulnerable to the allegation of itself occluding the citizens’ authorship of the laws) nor violated historical evidence by attributing to the people a non-segregationist understanding of ‘equal protection’ unlikely to exist in the 19th century – in fact, the background assumptions under which that will was formed had not yet proven untenable. Rather, the court took a third course, not contemplated in Michelman’s disjunctive rendering of the two possible judicial mandates. Namely, in Brown the constitutional interpreter did get the original will of the people right (i.e. to establish ‘equal protection of the laws’, since 1868) but ‘updated’, in the light of a changed historical context, the assumptions against which such will was formed. Consequently, the burden of proof incurred by the judicial interpreter is not normative (i.e. ‘What should the people will in light of some reasonably non-rejectable philosophical argument?’) but empirical (i.e. ‘What are the relevant facts in the light of today’s best knowledge? Is segregation inherently discriminatory, because it usually denotes the inferiority of the segregated group?’). In sum, tertium datur, beyond the two alternatives that Michelman presents as destined to endlessly clash: in adjusting its reading of the constitution to the new historical context, the highest judicial interpreter neither imputes to the people an original intent to desegregate schools and to conceive of equality substantively (a will and a conception which certainly were not there at the Founding or even at the enacting of the Fourteenth Amendment), nor develops a philosophical argument about how equal protection should from now on be interpreted. By modifying the background assumptions relevant for interpreting the constitution, the highest judicial interpreter goes some way, if not all the way, towards bridging the gap between the two kinds of mandate pointed out by Michelman.

The same reasoning can be applied to the recent Obergefell case. ⁶ On Michelman’s premise, we should choose between applauding and defending Obergefell as a valid application of an abstract-originalist approach or applauding and defending it as a valid application of the ‘philosophical’ approach. However, if we accept my thesis of a cognitive background of shared assumptions on which judicial interpretation and the will of ‘we the People’ inevitably depend, then we could make sense of Obergefell in the same terms as Brown or Loving. In Loving the striking down of anti-miscegenation laws was justified on the basis of (1) affirming ‘equal protection’ as expressive of the will of the people, (2) questioning racial difference qua (up to then reputed enough of a) ‘natural’ ground for restricting freedom to marry and (3) finding racial classifications intrinsically (as opposed to subjectively) discriminatory. ⁷ Along similar lines, in the case of Obergefell the burden of proof for the judicial interpreter was not so much on showing that the people actually willed same-sex marriage, but that the people’s historical will to grant equal protection was formed in a context where certain assumptions (about sexual preference) still seemed tenable and therefore led to legal conclusions that are now reversed. To put the point in more general terms: we can be bound by the normative will of our predecessors – their will to found an as oppression-free polity as humanly possible – but not by their cognitive horizon.

My second line of response focuses on one presupposition of Michelman’s contention that conceiving the judicial interpreter’s mandate in terms of reading into the constitution ‘whatever it takes to sustain the pact’ would entail a relapse, on my part, into a ‘politicized’ view of the constitution as consisting not of binding law but of ‘talking points for discourses of legitimation’. It is by no means self-evident that such gap-bridging redefinition of the higher judicial interpreter’s mandate should take the form suggested by Michelman. The ‘read-the-constitution-as-authorizing-whatever-it-takes-to-sustain-the-pact’ understanding of the mandate presupposes a Hobbesian priority of stability over justice that requires a separate justification, not found in Michelman’s argument. In the absence of such justification, I would rather reformulate that mandate along different, but equally gap-bridging, lines: as a ‘read-the-constitution-as-authorizing-whatever-it-takes-to-minimize-oppression’ mandate. This alternative formulation reflects a Lockean priority of justice over stability and avoids a ‘politicized’ understanding of the constitution as a mere benchmark for discourses of legitimation. Because the rule of law constitutes a major bulwark against oppression, the ‘whatever-it-takes-to-minimize-oppression’ version of the mandate presumably directs the judicial interpreter to keep clear of the stability-enhancing compromises that put the rule of law under stress and, as rightly suggested by Michelman, may subtract solidity from the strictly legal understanding of the constitution.

My third line of response addresses Michelman’s suggestion that a ‘philosophical’ version of the judicial interpreter’s mandate – to interpret the constitution in the light of reasonably non-rejectable philosophical arguments that can remedy now the shortfall of consensus – may itself constitute an occlusion of democratic authorship by way of pre-empting the self-legislative capacity of the citizens. This ‘objection of occlusion’ can be met in full consonance with the Rawlsian paradigm of political liberalism, by recalling that in a well-ordered constitutional democracy no branch of government enjoys supremacy above challenge. In light of Rawls’ equal rejection of judicial as well as parliamentary supremacy, the ‘present-oriented’ philosophical interpretation, for example, of ‘equal protection’ provided by the higher judicial interpreter arguably remains putatively reflective of the will of the people, in a fallibilistic sense, until the people (through the other branches and according to the procedures provided by the constitution) sets the amending procedure under way and corrects that erroneous, partial, or otherwise unwelcome interpretation on the part of the court. ‘Judicial occlusion’, as it were, is temporary: ways to offset it are provided by the law. One could counter-object, against this Rawlsian understanding of the power of the highest judicial interpreter of the constitution as ultimately checked by the constituent power of the citizens to amend the constitution, that the formal mechanism for amending the constitution, in the case of the United States, during the 20th and 21st centuries has become prohibitively difficult for ‘the people’ to operate, as documented by Ackerman in his recent volume The Civil Rights Revolution. ⁸ This alteration of the constitutional picture, due to causes that would be impossible to enumerate here, produces a new predicament in which the mere lack of an amendment procedure under way in response to a pronouncement of the Supreme Court is less indicative of acceptance than it used to be until the New Deal. Such counter-objection does not invalidate my response but it certainly raises a serious problem: namely, given the ever more impervious accessibility of the formal amendment procedure, what possible substitutes could in the future avoid occlusion of authorship on account of a temporary judicial supremacy? Balance has been altered, by historical processes (e.g. the rise of the presidency to a prominent constitutional role, the acceleration of time, etc.) that cannot be addressed here, and the power of the judicial interpreter of the constitution has consequently been enhanced and awaits re-balancing. This discussion is totally open and could be next on the ongoing agenda for rethinking the paradigm of political liberalism.

II The view from Fairburg: Defending the multivariate democratic polity

To Seyla Benhabib I am especially grateful for having perfectly rendered, at the beginning of her contribution, the overall aim pursued in The Democratic Horizon. This aim consists of picking up ‘the gauntlet of “ideal theory”’ after William Galston’s influential article ⁹ on the recent rise of a composite ‘political-realist’ wave of (mostly British) critics of the ‘moralism, legalism, and parochialism of American liberal theory’, left-Nietzscheans, Machiavellians, political constitutionalists, neo-Schmittians and, more specifically, to defend the normative paradigm of Rawls’ political liberalism by transforming, as opposed to ‘immunizing’, its central ideas in order to enable it the better to meet today’s challenges facing democracy.

I believe that the binary opposition of ‘political realism’ and ‘normative theory’, underlying the professional imaginary of political philosophers since time immemorial, can be partially deconstructed by showing that any normative theory aspiring to have traction on the world must come to terms with a ‘realist’ appraisal of the challenges and opportunities of the time, and by understanding the vocation to unmask the real workings of (democratic) politics as an enrichment of the normative approach and not as its polar antagonist. In the end, however, an unmetabolizable residue remains, constituted by the opposition of a normative inclination to constantly update the distinction of legitimate authority and arbitrary power in the light of today’s realities on one hand, and on the other hand the political-realist readiness to accept the self-legitimating capacity of power configurations prevailing on the ground. Thus the challenge remains in place of outlining a normative paradigm that allows us to draw the line between legitimate and arbitrary use of coercion and, most important of all, to draw it in accordance with the background assumptions that somehow define our philosophical horizon.

The paradigm that to this moment embeds a potential in my opinion yet unsurpassed for offering a view of legitimate authority consistent with such background assumptions is political liberalism. Within the family of normative paradigms, political liberalism possesses such potential to a greater extent than a comprehensive liberalism à la Dworkin or Habermas’ discursive-procedural approach to democracy. Dworkin’s paradigm embeds a substantive view of the good life, as well as a foundational view of ‘the supreme virtue’ of equality and ensuing rights: taken together these two normative notions somehow detract from the democratic quality of his way of drawing the line between legitimate and arbitrary uses of power. In so doing, they revive an older tension between liberalism and democracy which Rawls’ and Habermas’ approaches have the great merit of reconciling. Habermas’ thesis of the co-originality of democratic sovereign will and rights, of the public and the private autonomy of citizens, reconciles this tension in an elegant way, without foundationalist relapses. However, his proceduralist-discursive approach, which also embeds a reflection on the role of the public sphere not found in Rawlsian ‘ideal theory’, connects the fully legitimate exercise of power with a distinction between discursively generated rational consensus and pragmatically negotiated compromise, which only superficially seems to echo the Rawlsian distinction of overlapping consensus and modus vivendi. Habermas’ proceduralist-discursive paradigm, in fact, continues to embed the premise, unrealistic and at odds with the fact of reasonable pluralism, that rational consensus – the touchstone of the legitimate exercise of power – requires that citizens endorse legitimate institutions and authority for the same reasons, presumably those emerging from a discursive procedure approximating idealized conditions as far as possible. The Habermasian model, finally, never included thus far an explicit acceptance of Ackermanian dualism: this puts it at a disadvantage relative to the paradigm of political liberalism when confronting the historical challenges facing democracy today.

Despite such unequalled position of pre-eminence among normative theories aspiring to reconcile our view of democratic legitimacy and our larger philosophical horizon, the paradigm of political liberalism is not without problems calling for further elaboration. Correctly identifying the purpose of The Democratic Horizon as to contribute to such enrichment and expansion of the Rawlsian paradigm, Seyla Benhabib focuses on reflexive pluralism and the multivariate democratic polity as two facets of the strategy through which I try to enable political liberalism to cope better with the specific challenge of hyperpluralism. Furthermore, she credits me with exploring this challenge ‘in all its depth and ramifications’ and with integrating my proposed solution with my more general philosophical effort – pursued mainly in The Force of the Example and earlier in Reflective Authenticity – to develop a ‘post-Enlightenment model of validity’ revolving around exemplarity, authenticity and reflective judgement as primary normative sources. ¹⁰

One of the worries she expresses is that reflexive pluralism might, at closer inspection, prove difficult to reconcile with the Rawlsian framework and end up resembling too closely the agonist (Mouffe, Connolly) or postmodernist (Rorty) idea that ‘the best that we can hope for is a modus vivendi form of liberalism that somehow achieves stability and muddles along without recourse to too much metaphysics or philosophy’ (Benhabib, this issue: p. 652). This worry I wish to allay from the very beginning. The irreducible difference that continues to separate Rawls’ paradigm, even in the revised version expounded in The Democratic Horizon, from the agonist or postmodernist approaches is signaled by the phrase ‘most reasonable for us’, used to capture the normative cogency of a certain way of (1) understanding justice-as-fairness as a political conception of justice, (2) adjudicating constitutional controversies, or (3) conceiving of a constitutional essential. ¹¹ Rorty and the agonists have no use for ‘the most reasonable for us’ formula, a one-slot predicate which does the normative work of other liberal notions without the ballast of presupposing universal principles, even of the allegedly ‘post-metaphysical’ tenor of the idealized presuppositions of communication or the principle of justification. This dividing line marks the distinction between my own revised political liberalism and Rortyan or agonistic anti-normative positions.

The next point raised by Seyla Benhabib concerns the relation of ‘conjecture’, as a form of public argument, to public reason and the limits to the use of conjecture: ‘Which principles of political liberalism are open to conjectural justification and which must be established by public reason?’ (Benhabib, this issue: p. 653). And given that, according to her interpretation of The Democratic Horizon, nothing would remain ‘off the table’ – neither the First Amendment to the US Constitution nor the Fourteenth or Nineteenth Amendments – she wonders whether, in the end, my ‘admirable attempt to meet the challenge of hyperpluralism’ (ibid.: 653), would not run the risk of ‘throwing out the baby with the bath water’ (ibid.).

I am grateful for the opportunity that Benhabib’s objection offers me to reaffirm that conjecture – i.e. offering interlocutors reasons internal to their comprehensive conception for endorsing the constitutional essentials and the political conception of justice, as well as for accepting the burdens of judgement – is meant to supplement, not to replace public reason. Public reason depends on a stock of shared reasons from which to generate hopefully shareable conclusions. In hyperpluralist contexts that stock may simply be too thin for conclusions of any consequence to be drawn. Public reason may then just idle inoperatively. Only at that juncture conjectural arguments à la Andrew March play a role in my expanded version of political liberalism. Their function is to set in motion a kind of ‘primitive accumulation’ of shared reasons, as it were, which paves the way for the subsequent operation of public reason.

Furthermore, conjectural arguments have their point of entry in the comprehensive presuppositions of non-liberal worldviews, religious or secular, and aim at offering reasons for endorsing liberal constitutional essentials, not the other way around: they are not meant to weaken the constitutional essentials in order to accommodate new comprehensive conceptions. In fact, Anthony Simon Laden criticizes me for the opposite reason, namely for my holding fast to a distinction between comprehensive conceptions, including liberal ones, which are the object of reasonable disagreement, and political conceptions, including constitutional essentials, treated as the focal point of an overlapping consensus to be made more inclusive but certainly not to be thrown into question in the light of newly appearing comprehensive conceptions. Below I will respond to Laden’s critique, but for the time being let me emphasize once again that conjectural arguments are not meant to loosen up constitutional essentials or fundamental rights, ¹² but, quite to the contrary, are meant to make these normative pillars of a liberal-democratic polity more easily accessible to citizens coming from comprehensive conceptions that nourish and sustain attitudes of diffidence and distance vis-à-vis the political core of the public culture.

Finally, Seyla Benhabib considers the idea of the ‘multivariate liberal-democratic polity’ – my remedial suggestion for the unfortunate cases when conjectural arguments fail to convince our fellow citizens to endorse the constitutional essentials and the political conception of justice – ‘an extremely problematic move’ (Benhabib, this issue: p. 654). In such a polity, according to her interpretation, ‘citizens and residents and denizens would no longer treat one another as compatriots engaged in a difficult common project that imposes upon them the obligation to reason with, argue with and learn from each other’ (ibid.: 654–55). Among them extensive distrust will develop, ‘the very project of building a world together will disappear’ and ultimately they ‘will relate to one another as citizens of countries engaged in a cold war and seek to avoid conflict at all costs’. Conflict avoidance, in turn, ‘can serve only to stultify the contentious dialogue of democracy’ (ibid.: 655). Benhabib ends her comment with a reaffirmation of the inevitability of ‘uncomfortable conversations’ – on the status of women, the legitimacy of conversions, the politics of apostasy, etc. – for a healthy democracy and with a note of nostalgia for Rawlsian ‘pre-proviso’ times, when ‘Rawls himself … wanted religious grounds not to be advanced in public discourse’. The multivariate polity, instead, would urge on us the unfortunate notion that we should not engage in these uncomfortable contentions and ‘can just let others move along at their own speed’ (ibid.: 655).

In response to this sensible concern for the quality of our democratic life let me recall one fundamental implication of the Rawlsian distinction of the ‘public forum’ and the ‘background culture’. ‘Uncomfortable conversations’ in which irreconcilable views on gender equality or religious freedom may come to a resounding clash are perfectly fine in a healthy democracy, when they remain conversations in the background culture, or in the Habermasian public sphere. Instead, when coercive power – the coercion of the law – comes to be attached to the view that carries the day, matters look differently, independently of substance. To be legally forced to act according to legislative or judicial decisions, made in the public forum, which reflect principles one does not endorse, is what oppression is all about. Unless we embrace some kind of foundationalism, which justifies the enforcement of some values on recalcitrant and unconsenting citizens, the substance of what is so enforced against my deepest convictions has little relevance. This is why I believe the expression ‘liberal oppression’ to be not oxymoronic. How do we safeguard a liberal-democratic polity when epoch-making waves of migration bring in waves of non-liberal citizens – whom we certainly do not want to expel or reject back to where they came from – from becoming a political space where, somewhat paradoxically, liberal views are imposed through legal coercion?

My rethinking of political liberalism embeds no diffidence against uncomfortable conversations about democratic principles and rights. Rather, I suggest reconsidering the requirement that constitutional essentials be endorsed, on the part of the citizens, exclusively out of reasons of principle. It seems to me that one way of safeguarding the liberal-democratic polity from oppression consists of realistically allowing ‘endorsement out of prudence’, but not outright rejection, as a second-best, temporary kind of consensus that allows us to continue to regard the political order and the exercise of political authority as legitimated by the citizens’ consensus. Once again, my reconfiguration of political liberalism is not guided by the overall goal to maximize stability, at the cost of democratic contestation, but by the goal of minimizing oppression, through relaxing the demanding standard of adhesion out of reasons of principle alone. Rawls famously envisaged a fictitious decent Muslim-majority society – called Kazanistan – where a decent consultation hierarchy would be operative at all times, fundamental human rights would be respected albeit not on an equal basis, and a comprehensive conception of justice and the good would provide the backdrop of political decision-making and legitimacy. As a thought experiment, hopefully to be validated by future historical practice, it is then not inconsistent with political liberalism to develop an equally fictitious liberal-democratic western polity, call it Fairburg, where Rawls’ intimation that political power is exercised in a fully proper way ‘when it is exercised in accordance with a constitution the essentials of which are endorsed by all citizens’ is taken literally to mean by all citizens. In hyperpluralism-affected Fairburg, the last clause of Rawls’ principle of liberal legitimacy, requiring that such endorsement proceed out of ‘reasons of principle’, is so modified as to accept also prudential reasons on the part of some of the citizens. That solution seems to me far better than the inverse solution, advocated by some interpreters of Rawls and indirectly by Benhabib: namely, to keep a firm commitment to the literal requirement that endorsement proceed out of reasons of principle, and then to soberly admit that such endorsement does not come from all, but only from an ever more restricted number of citizens.

Why better? Because the solution exemplified by Fairburg carries a forward-looking inclusive political dynamism that is missing from the alternative advocated by Benhabib. It brings the non-liberal and ‘partially reasonable’ citizens within the circle of the addressees of political justification and thus sets the stage for deeper forms of political inclusion, even though it by no means includes a guarantee that principled endorsement will follow. As Rawls pointed out in Political Liberalism when accounting for the transition from a modus vivendi to a constitutional consensus, if political institutions incorporate liberal principles and operate on the basis of public reason, over time trust among citizens increases: liberal principles which were first accepted ‘reluctantly’, simply because they were thought to provide ‘the only workable alternative to endless and destructive civil strife’, ¹³ begin to be regarded as worthy in their own right, and to ‘encourage the cooperative virtues of political life’. ¹⁴ There is no reason to suppose that such a positive circle, which created liberal polities out of countries devastated by religious wars, could not operate in Fairburg, when new historical circumstances create the need to fully integrate citizens whose comprehensive conceptions allow only a prudential endorsement of the liberal principles.

III The place of openness in the democratic ethos of a complex society

Stephen K. White’s contribution touches on another crucial aspect of my reformulation of political liberalism: the democratic ethos operative in a late-modern complex society and the role of openness within it. Correctly he identifies the importance that I attribute to the task of updating the list of democratic virtues inherited from the times when democracy was not faced by the prohibitive conditions of late-modern life under the hegemony of neo-liberalism. He questions, however, my suggestion of adding ‘openness’ – the propensity of a public culture towards accepting unconventional solutions and exploring new possibilities for a life-form – to that list. He does so on two grounds. The first is that openness is an excessively vague and generic notion, the second is that openness is not a ‘political’ virtue but rests on comprehensive assumptions which may be controversial.

Concerning the first point, towards the end of his comments White suggests that ‘the notion of openness proves to be simply too indeterminate to be of much independent use as the core of a democratic ethos’ (White, this issue: p. 658). Before addressing the issue of the indeterminacy of openness, I need to correct the erroneous attribution, certainly ensuing from the faulty clarity of my own text, that I would consider openness the core of the democratic ethos. I never meant to affirm that proposition: rather, I consider openness just a very recent, late-20th-century addition to the traditional list of democratic virtues (again, prioritizing the common good, a passion for equality and for individuality, plus perhaps the Rawlsian triad of reasonableness, tolerance and civility).

Having said that, in response to the allegation of vagueness let me point out that openness, over and beyond the features mentioned by White, can be characterized through other aspects typical both of the individual and of the cultural level. For example, religious, political and cultural pluralism can be perceived both by an open individual personality and by an open public culture as a potential enrichment of political life, rather than as a threat to stability. Similarly, a preference for reversible solutions and modifiable patterns, as opposed to a preference for irreversible ones, distinguishes both individual and public forms of openness – sunset laws best exemplifying public openness. Furthermore, we can spell out openness ‘in the negative’ by contrasting it with its opposite: (1) the tendency to consider the novel/unusual as threatening until proven otherwise; (2) an emphasis on continuity as desirable in itself; (3) an emphasis on protection and security; (4) the prizing of predictability when change is inevitable. All of these features inject more substance in the allegedly ‘vague’ concept of openness.

However, in response to White’s objection it should also be pointed out that there is no reason why the notion of openness should be expected to be much more specific than the concepts through which we grasp the other, pretty much uncontested, elements of the democratic ethos. It goes without saying that, at some point, the orientation towards the common good (or the general interest) will have to be figured in a reconstruction of the democratic ethos, but then there are quite different understandings of this notion – from Pareto optimality and other aggregative versions to more holistic understandings, from religiously anchored versions to secular ones. The same holds for the passion for equality – the whole debate on the meaning of ‘equality’ testifies to how diverse the specifications of this general concept could be ¹⁵ – not to mention the variety of specifications that the prizing of individuality could receive.

Even if openness could arguably be attributed a more specific meaning than the receptiveness to novelty to which White tends to reduce it, a second objection must be addressed. This criticism targets the superfluity of openness: after listing the standard democratic virtues (as specified again above) ‘what added value do I get from a generic reminder that I should “be open”?’ (White, this issue: p. 661). I am tempted to reply that a lot can be gained. Just as human faces have a kind of recognizable typical expression, and ways of walking do too (sometimes you recognize people from afar by the way they walk), just as musical pieces exhibit a certain Stimmung, social occasions a certain atmosphere that later we can comment on, ¹⁶ games a certain holistic texture and inner sequentiality (we can talk of a beautiful or a dull game independently of our appreciation of the outcome), so local political regimes – say, US democracy relative to Canadian or British democracy – have a distinct Stimmung, ‘political atmosphere’, or public tonality. The added value brought by openness to the received list of democratic virtues is that it signals a late-modern disillusion, hesitancy, or distance-taking vis-à-vis the closure inherent in the early-20th-century Weberian ideal of ‘the rational calculability of the legal consequences of every action’, or in the Schumpeterian idea that ultimately democracy consists of electing a ruling elite in a pluralistic context.

In order to make sense of this late-modern modification of the democratic ethos, let us test our intuitions relative to a pair of possible democratic regimes. Let Fairburg and Closeburg be two polities which score exactly the same on all the dimensions of the democratic ethos, except in one respect: whereas in Closeburg the public demands that the government and the legislature take every possible (legitimate) measure against any possible change in the legal and political status quo, and electorally rewards those parties that offer the greatest reassurance against any, however minimal, modification of the current order, in Fairburg the public raises no such demand and is willing to debate the merit of possible prospects for significant change, as these prospects are put forward by political forces and movements in the public sphere and then in the electoral contest. Assuming no significant difference affects the other aspects of the ethos, would it not be plausible to claim that Fairburg reflects more closely our late-modern ‘political-liberal’ idea of democracy and is intrinsically more desirable than Closeburg?

The second point raised by White concerns the ‘political’ credentials of openness. Is openness less dependent on some comprehensive frame than its competitors, as I claim, or does it presuppose a comprehensive moral outlook that has at its center the idea of exemplarity? In other words, if we did not value exemplarity (just as many generations of political theorists did not) would we care for openness? In partial response to this question, I would contend that exemplarity is no moral notion, so even if a background frame of reference turns out to be necessary for making sense of openness, in any event it is not a moral one. Furthermore, I would also contend that exemplarity can be understood as a non-comprehensive value.

The argument proceeds in 4 steps. First, positing the capacity for something exemplary to transcend the local context and to inspire elsewhere-situated others commits us to the existence of some kind of sensus communis. Operating on the basis of an aesthetic vocabulary centered on the beautiful, Kant forcefully made this point. Second, such sensus communis cannot be understood as a common stock of substantive values or beliefs, operative across cultures, lest we fall back into some kind of non-exemplary, but principle-based, subsumptive or somehow foundationalist model of validity. Third, in order to avoid such a dead-end, sensus communis should be understood as a web of interconnected dimensions of relevance, realms of human experience known cross-culturally to be salient backdrops where to look for what, in Kant’s parlance, is a universal of which the exemplary object or event can be deemed an instance. For example, cultures codify many different ways of being a man or a woman, and many different ways of expressing religiosity, but underneath that diversity the trans-local dimensions of sexual difference and transcendence/immanence remain constant fields of relevance that guide or orient us in recognizing exemplary, as opposed to ordinary, codifications across cultural divides. ¹⁷ Fourth, although, as White points out, exemplarity is indeed a source of normativity located ‘more upstream’ of openness in our universe of meaning, at the same time one can argue that exemplarity is not thereby turned into something substantive and thus comprehensive. In a sense, exemplarity relates to thick cultural universes in the same way as a political conception of justice supposedly relates to comprehensive conceptions of the good: namely, it constitutes a modular, stylized notion of validity susceptible of integration into each of the more comprehensive conceptions of validity available.

In the final section of his contribution, White carries on a constructive dialogue on the relative merit of ‘presumptive generosity’, as compared with ‘openness’, qua prospective new democratic virtues and, in his closing remark, invites me to investigate more intensively the interface of individual and collective exemplarity. A word of comment is in order on both counts. Presumptive generosity, discussed by White in his very thought-provoking The Ethos of a Late-Modern Citizen, ¹⁸ is clearly a ‘political’ virtue. Its cultivation consists of

… an effort persistently to slacken my drive to turn ontologically necessary difference into political otherness, a drive that finds a rich outlet today in prosperous liberal democracies in the propensity of those in the cultural center of these societies to denigrate and marginalize categories in the population who seem to unsettle that sense of centrality. (White, this issue: p. 660)

While no objection could sensibly be leveled against including in the democratic ethos for the 21st century both presumptive generosity and openness, it seems to me that presumptive generosity still falls short of an area of application that openness clearly possesses. The quote above helps to explain where this area lies. Presumptive generosity evokes a kind of political ‘primal scene’ where the encounter with difference and the other is crucial, and where at stake is cultural hegemony and the temptation to be overly and prejudicially protective of that hegemony. The moment of generosity applies at this juncture, but this is not the only juncture where a kind of openness is needed. In fact, Anthony Simon Laden in his comments takes issue with me precisely in relation to my rethinking political liberalism in a context where citizens comfortably included in the overlapping consensus wonder how much they should accommodate the slower pace of new incoming citizens whose liberal-democratic credentials are somehow taken to be on a different level. Openness is the virtue of directing mental flexibility and receptivity not only towards the claims of other fellow citizens – as it is the case with presumptive generosity – but also in the direction of self-examination and self-correction on the part of a political actor (individual or collective): ultimately it is readiness to rethink oneself, or the ‘we’ presupposed by ‘we the People’ or by ‘the most reasonable for us’. This important facet of openness, in my opinion, allows for it to be perhaps combined with presumptive generosity but not replaced by it.

This moment of reflective orientation towards the reshaping or self-reforming of the subject of politics, present to a much lesser extent in presumptive generosity, of course brings to the fore the relation of the individual and the collective dimension of openness – a significant interface for political philosophy ever since Plato’s metaphor of the just polis being a text written with larger letters and a human life lived in accordance with justice being the same text written with smaller letters. ¹⁹ I am grateful to Stephen White for urging me to move further up on my research agenda the investigation of what brings these two levels of agency, individual and collective, to respond to a common source of normativity called exemplarity. I explored that common ground earlier under the heading of ‘authenticity’, ²⁰ the forerunner of exemplarity in a long-term exploration of what I call the aesthetic sources of normativity – aesthetic not because they are rooted exclusively or primarily in sensation or in the experience of art, but because their trans-contextual cogency does not depend on principles or procedures. Authenticity is the key moral concept of an ethical line of thinking, initiated by Rousseau (and further developed by Schiller, Herder, Kierkegaard, and in their own very different ways by Nietzsche and Heidegger), that builds on ‘autonomy’ but understands the moral ought less in terms of self-legislation and more in terms of bringing to expression an inner and unique core of values. A long normative bridge, whose first pillar is in this ethical view, brings us all the way to the Rawlsian idea that the normative credentials of justice as fairness qua political conception of justice (as opposed to the comprehensive view that it still aspired to be in A Theory of Justice) consist of its being, among all political conceptions of justice, the most reasonable for us. The arches of that bridge include necessarily (1) the idea of judgement, as the mental power that allows us to single out important and less important aspects among those features that make us who we are: judgement is the faculty of identifying the boards of the boat which are best left in place for the time being, while the others are being repaired or replaced, and (2) the idea of exemplarity, as the property of a symbolic object to be a law unto itself and come to an exceptional congruence (of which authenticity is the counterpart in the ethical life) of its perceivable manifestation (as life-conduct, political action, moral deed, religious experience, artistic expression, etc.) and its inner constitutive volitional element (life-plan, constitution, artistic project, etc.). In some future work I will focus once again on how these two dimensions relate to one another.

IV Governance between procedures and ethos

The contribution of William Scheuerman is of great relevance because it focuses on the interface between my understanding of democracy at the domestic and the supra-national level. At the threshold between these two levels is a ‘change of step’ from government to governance as distinct modes of the coordination of political action. Scheuerman’s critical remarks address my way of making sense of this distinction, in chapter 7, and especially the difficulties connected with applying a whole set of concepts intended for the domestic level (openness, the democratic ethos, etc.) to the supra-national one.

First, Scheuerman correctly highlights two problematic aspects of my discussion of ‘openness’ in The Democratic Horizon. At some point, openness seems to play the role of ‘supreme virtue’ within a democratic ethos understood as the hinge on which our definition of democracy proper turns. At other junctures instead – for example, when in chapter 5 I discuss a possible cross-civilizational convergence around a pluralized and not western-centric democratic ethos – openness inexplicably disappears from the picture. In response to the first remark, I never meant to suggest that openness constitutes the core of the democratic virtues. Rather, I see it as an addition to the canonical stock of democratic virtues, which acquires an unprecedented relevance in today’s complex societies, given the effect of the ‘occlusion of authorship’ and ‘shortfall of consensus’ types of inhospitable conditions. In chapter 2, democracy is said to flourish at its best when openness is part of the ethos undergirding its institutions, but it is certainly possible to still have democracy without it, the kind of democracy that Weber or Schumpeter would see as realistically attainable. And democracy ‘not at its best’ still is democracy in all respects. ²¹ However, I am grateful to Scheuerman for having called my attention to a passage that certainly should have been more carefully worded and that I take now the opportunity to correct. On p. 53, I claimed that theorists taking the opposite sides of defending the market (Smith, Popper, Hayek and Nozick) or the government (Dewey, Keynes, Rawls and Habermas) as the locus of openness in fact ‘converge on the goodness and desirability of “openness” … as the institutional keystone of a democratic polity’. I should rather have replaced the italicized phrase with ‘as a desirable trait of a democratic polity’.

In response to Scheuerman’s point about the disappearance of ‘openness’ from my comparative approach to ‘multiple democracies’ (cf. Scheuerman, this issue: 667) in chapter 5, let me mention two reasons that led me to such choice. On the one hand, it seems to me most sensible to test comparatively the convergence of the major world religions on the established core of the democratic ethos (which includes an orientation towards the common good, towards equality and the value of individuality) rather than extending our basis of comparison to a new suggestion such as openness, which is but one among several competitors, including agape, hospitality and presumptive generosity. On the other hand, openness strikes me as a democratic virtue most responsive to those inhospitable conditions of democracy in the 21st century, which perhaps have become most visible – and thus have created an urgent need for openness – first and foremost in countries where democracy has been established longer and is now experiencing a worrisome regression to neo-elitist patterns.

Next to these objections, Scheuerman questions the ‘malleable and perhaps excessively open-ended character of the notion of ethos or spirit, along with the dangers of any attempt to rework democratic theory so as to give it a privileged analytic position’ (Scheuerman, this issue: 667). Evoking the conservative misuse of ideas of a cultural or national ‘spirit’ for ideological purposes often of a nationalistic kind, Scheuerman again calls our attention to the murkiness of the idea of openness. In his words:

… it is by no means self-evident that democracy is inconsonant with a political preference for ‘entrenched patterns’ … Do we really want to suggest that many basically defensive and ‘stabilizing’ social movements (e.g. against economic austerity and in defense of the Welfare State) are somehow incongruent with the democratic ethos and its (allegedly) built-in preference for change and innovation? Under contemporary conditions of intensified social acceleration, Ferrara’s positive assessment of political cultures open to novelty and experimentation has much to recommend it. Yet a proper political – and perfectly legitimate democratic – response to social acceleration sometimes requires not celebrating but stubbornly resisting change and innovation. Making the idea of democracy hinge on a built-in psychological preference for novelty, Ferrara may inadvertently jettison procedural essentials. (Scheuerman, this issue: 668)

More generally, openness is the work of reflective judgement in the same way as closure somehow reflects the mechanical iteration of traditionalized determinant judgements. Thus, when it is claimed that a proper democratic response to social acceleration may require ‘stubbornly resisting change and innovation’, certainly one would want to double-check (1) whether change is truly change or the reappearance of some pattern of the past in new guise, (2) whether alleged ‘change’ does not undermine the existing democratic ethos and (3) if stubborn resistance is not actually best served by what Ackerman would call ‘unconventional adaptation’, or creative self-modification in order to preserve the essentials of a normative pattern. Thus openness certainly plays a crucial role also in resisting unwanted, regressive, or destructive new developments.

The final section of Scheuerman’s contribution calls into question my understanding of supra-national governance, in chapter 7, on three counts. First, my definition of governance as ‘the coordination and regulation of political action in the absence of a capacity to impose sanctions for noncompliance’ is claimed to soon give way to ‘indirect sanctions’ and disregard for the amount of old-type coercion carried out by state governments coordinated via governance (Scheuerman, this issue: 669). Second, ‘[g]overnance should not be contrasted with government or stateness … but instead conceived as welded to it in complicated and oftentimes parasitical ways’: rather than as a ‘qualitative break from some recognizable features of modern stateness’ governance should be understood as entering a ‘complex empirical nexus’ with the classical, and enduring, forms of government (ibid.: 670). Third, because of my emphasis on understanding democracy as ethos, ‘law sometimes … gets reduced to moral suasion, coordination and persuasion’ – a move that again results in overlooking the extent to which even governance structures continue to depend on sanctions and coercion (ibid.: 670). Scheuerman praises my extension of Ackermanian domestic democratic dualism to supra-national governance – and the ensuing understanding of ‘democratic’, as opposed to technocratic, governance as soft-law coordination taking place within the boundaries of constitutional essentials endorsed by free and equal citizens and within recognizable (though not necessarily electoral) forms of accountability – but calls for more detailed institutional specifications.

Let me respond to this ingenious challenge first by restating once again that my emphasis on the democratic ethos is meant to supplement or complete, not to replace, the standard procedural account of democratic institutions. Thus in my discussion of supra-national governance, which is not the center of my book, I simply was content with suggesting a general criterion for the democratic legitimacy of structures of governance and with establishing the far from self-evident point that no automatic loss of democratic quality, no democratic deficit, follows inevitably from the more indirect forms of democratic authorship that undergird supra-national governance. Questions about institutional design and procedural checks and balances as they affect supra-national or even global governance necessarily come later, after the basic idea of supra-national legitimacy is worked out, and I thoroughly agree with Scheuerman that much more needs to be done.

Grouping together the first and the second objections, I believe that because governance does not eliminate government at the domestic level, an indirect link with coercion and sanctions does persist. However, differently than Scheuerman, I do remain of the opinion that such indirect relation of governance to sanctions poses no problem. His example of the Security Council perfectly illustrates the case. The relevance, pace Offe, of the notion of governance (as well as its being a far from empty signifier) originates from the irreducible difference that qualifies the two segments of coordination. A classic sanction-based relation of command–obedience characterizes the segment of coordination that links the actions of member states with those of their institutional sub-units, all the way to the single soldier in the case of humanitarian intervention; a new type of governance relation links the action of the single member state with the decisions of the Security Council. Although the 193 member states of the UN are obliged to respect a Security Council resolution in the same way as the units of the army of a member state are to execute the orders of their respective government, their participation in the active implementation of a resolution calling for the use of force, pursuant to article 42 of the UN Charter, cannot be mandated: their participation in a humanitarian intervention that includes the use of military force can be authorized but not imposed by the Security Council. ²² The mere reliance of the governance body on sanction-backed enforcement in the second segment does not undermine its being distinct from government. And we know far more about what it means for a government to be democratic than we know about democratic governance: no doubt Scheuerman is right in pointing out that much more needs to be spelled out about the second type of relation, but the joint operation of the two lines of coordination and command in and of itself is not a sufficient ground for questioning the distinctiveness of governance, and of democratic governance in particular.

V How open is openness? The relation of democratic justification to its context

Anthony Simon Laden’s critical observations, very thoughtful and constructive, offer me a welcome chance to reflect on the background motives that prompted my attempt to expand the paradigm of political liberalism. His remarks address my conjectural reconfiguration of political justification and once again relate to the role of openness within the democratic ethos.

First, I totally agree with his intimation that the greatest threat to the common ground of constitutional essentials comes not so much from the comprehensive moral cultures that massive immigration now brings to bear on democratic polities but rather from ‘the nativist, nationalist and neo-liberal reactions to such immigrants’ (Laden, this issue: p. 672). The combination of these new factors, absent from Rawls’ picture when he formulated the paradigm of political liberalism, calls for a re-examination of the fundamentals of ‘political justification’. Laden correctly locates my attempt at corroborating ‘public reason’ political justification with ‘conjectural’ political justification in the realm of intersubjective, as opposed to impersonal, approaches to political justification. Intersubjective approaches rest on the idea that political justification is ‘justification to a particular other with whom we disagree, rather than merely the justification of a position by aligning it with a set of grounded principles or established facts or theories’ (ibid.: 673; emphasis added). My polemical target in the book is not only comprehensive liberalisms (including the various kinds of ‘liberal monopluralism’), but also the reductive, self-immunizing and teacher-oriented version of political liberalism (and, more specifically, of political justification) that I perceive as underlying Quong’s and other renowned interpreters of Rawls’ legacy. Thus the discussion between Laden and me is between two different ways of understanding intersubjective political justification.

Laden raises the question whether my own view does not in fact amount to a halfway or pseudo-intersubjective version – in fact, a ‘contextual impersonal justification’. What I offer to the adherents of a particular comprehensive doctrine is ‘a train of reasoning that can start where they are, and lead to the conclusion I wish to urge on them’: thus, ‘from their point of view, I offer them an impersonal justification … [which] shows that the conclusion in question follows from or is permitted by their other, possibly comprehensive, commitments’ (Laden, this issue: pp. 673–74). Laden finds this reworking of Rawls’ political justification insufficient and urges a ‘more robust interpretation of intersubjective justification’ (ibid.: 673), not limited to the above, but properly understood as ‘a practice of equality: of finding, with another, whether there is common ground that we can occupy together’ (ibid.). The key extra element missing from my account, and advocated by Laden, is a complete openness to the response that our conjectural arguments ‘bring from those to whom they are directed’ or, in other words, a thin sense of reasonableness ‘that consists not in our acceptance of certain substantive principles but in our being open to being moved by what is said to us in just the way we are hoping our interlocutors are open to being moved by what we say to them’ (ibid.: 674). This attitude of openness does full justice to the values of equality and reciprocity that are definitional for democratic life.

Short of adopting such a more robust kind of intersubjective justification, my own revised model – according to Laden – ends up running the risk of not convincing the people it aims at convincing, not least because it embeds a kind of one-way ‘teacher–student’ posture. Rather than embedding a ‘fellow student’ posture of full reciprocity in learning from one another, my conjectural arguments aim at winning outsiders over to already shared constitutional essentials perpetually shielded from change. Laden’s criticism comes indeed from a perspective opposite to Seyla Benhabib’s: whereas Benhabib accuses me of compromising over constitutional essentials, Laden accuses me of entrenching them and thereby undermining the effectiveness of an intersubjective practice of political justification. My answer cannot but be one and the same – political values, constitutional essentials and the political conception of justice continue for me to have priority over their counterparts embedded in controversial comprehensive views – but the specific reply to Laden’s criticism is responsive to the perspective from which he argues.

I certainly share Laden’s concern for injecting ‘dialogical substance’ into the equality of citizens and also I share his rejection of the assumption that the normative pull of our defense of constitutional essentials might reside in any independent ‘order of reason’, if by that phrase a set of ‘comprehensive reasons’ is meant. Where we reasonably disagree is about what to do when the so-called ‘order of reason’ refers to a set of ‘political reasons’. Should the constitutional essentials, which jointly translate a political conception of justice into an institutional and legal structure, be opened up to revisions urged from the angle not of public reason but of comprehensive conceptions? I believe that the different way in which Laden and I incline to answer this question somehow relates to the diversity of contexts in which he and I assume the question is raised.

Two indicators of this difference of context can be pointed out. The excerpt, quoted by Laden, where Cavell elucidates the meaning of ‘We say …’ (for example, that all of us are possessed of certain rights, enjoy equal protection of the laws, are entitled to a due process, etc.) as an invitation extended to our interlocutor to accept and confirm that she is willing to be included in that ‘we’, seems to me relevant only when we debate prior to the formation of an overlapping consensus over a political conception of justice. Once a political conception and a consensus over a number of constitutional essentials is in place, are we then going to say that the normative pull of ‘equal protection of the laws’, ‘due process’, the rejection of ‘cruel and unusual punishment’, ‘free speech’, etc., rests on our readiness to being moved by adverse opinion as we are hoping our interlocutors will be moved by what we say to them? Something more normatively robust should be at work then: not some normativity linked to a principle of reason, to be sure, but certainly an overlapping consensus on the political values of freedom and equality. Second, Laden points out that my use of ‘conjecture’ is different from Rawls’. In Rawls’ original picture conjecture comes in not as a means for answering grand questions – such as ‘Why accept reasonable pluralism?’ or ‘Why freedom of conscience?’ or ‘Why gender equality?’ – but rather ‘when an already ongoing stretch of public deliberation runs into a misunderstanding’ (Laden, this issue: p. 676).

These two points are indicative, in my opinion, of a difference in the context assumed as paradigmatic for political justification. I defend the legitimacy of turning ‘conjecture’ into something more central to the paradigm and fit to address ‘grand questions’ in response to a context, historical and social, that requires political justification to work where pluralism (and thus disagreement on fundamentals) is more pronounced than envisaged in Political Liberalism. Similarly, the adoption of Cavell’s ‘invitational’ rendering of political justification makes full sense in an initial situation, a constitutional democracy at the founding moment, when the range of political values and constitutional essentials still must be delimited from the various surrounding comprehensive conceptions. This is also the presupposed context where the ‘teacher’ or unidirectional mode of justification compares unfavorably, and rightly so, with the ‘fellow student’ model advocated by Laden: in that context citizens are merely endorsers of reasonable comprehensive conceptions which stand on equal footing as putative contributors to the political conception of justice about to be singled out. Things begin to look differently when political justification occurs in a context where at least a constitutional (if not all the way overlapping) consensus already exists over a political conception of justice and a number of constitutional essentials, and – either because of changes in the composition of the citizenry due to migration or because of the appeal of certain comprehensive conceptions – an increasing number of citizens fails to endorse the political values and the constitutional essentials (as prescribed by Rawls’ liberal principle of legitimacy) out of reasons of principle. Then, as Benhabib rightly emphasizes, not everything can be equally opened to questioning: some boards of the constitutional boat are better not moved and the teacher/expert mode traced by Laden in my argument compares less unfavorably to the fellow student mode. Or should we go so far as saying that when justifying ‘political values’ to those who hold adverse comprehensive views and have been brought by historical vicissitudes to live with us we ought to be open to reversing the substance of our overlapping consensus? If someone rejects gender equality, does Laden’s model of full intersubjective justification enjoin us to admit that ‘the very misunderstanding that generates the disagreement may be ours’ (Laden, this issue: p. 676)?

It seems to me that such different understanding of intersubjective political justification is rooted ultimately in the difference between Rawls’ context in 1993 and our own. Consistently with his attempt to revitalize the paradigm of contract theory, he imagined the grounding and justification of a ‘stable and just’ society of people who endorse different and rival comprehensive conceptions. The Democratic Horizon responds to a different challenge, typical of 21st-century European societies: namely, how to keep an already existing liberal-democratic society from turning oppressive when global migration and other processes reduce the number of citizens who endorse the constitutional essentials and the political values ‘out of reasons of principle’. Should the citizens of the liberal majority go so far as equating proper intersubjective justification with readiness to redraw the chart of political values each time anew? Would not that requisite most likely amount to having an open-ended constitution whose essentials are always questioned, just a tiny conceptual step from having no constitution at all?

Nevertheless, the problem raised by Laden is all too real and worth addressing. My strategy in The Democratic Horizon is different from what he suggests. By introducing the ‘multivariate democratic polity’ I modify the Rawlsian liberal principle of legitimacy in the face of hyperpluralism by holding fast to the priority of political values and constitutional essentials, and instead loosening up the requirement that they be endorsed by all the citizens out of reasons of principle. Those who are not convinced by my kind of intersubjective justification are still offered the option of a mere prudential adhesion to some, or even all, of the political values and constitutional essentials. This strategy in my opinion offers the triple advantage of (1) keeping a working and effective constitution in place, over time spans of historical magnitude, instead of exposing the constitution to continuous revision (worse of all, to revision at the input of comprehensive conceptions and not of public reason); (2) holding fast to the liberal-democratic nature of the normative core of the polity; and yet (3) minimizing oppression (i.e. minimizing the number of citizens coerced to comply with norms whose underlying principles they do not endorse) by way of allowing for a larger range of motivations (including prudence) for allegiance to the normative core of the polity. My strategy also has the collateral advantage of building more mutual trust among the different constituencies of a receptive liberal society in the age of porous borders, and responds to the concerns raised by Benhabib and by Laden, though it coincides entirely with neither of their suggestions.

Finally, Laden addresses the virtue of openness from his own angle. He wonders where I would want to draw the limits of openness and whether I would be prepared to include within it ‘an openness to criticism, a willingness to be moved off our position by what others say to us, to be, in a sense, teachable by our fellow citizens, even and especially those who are critical of the existing overlapping consensus around a set of political values’ (Laden, this issue: p. 678). Laden correctly distinguishes here between openness to ‘being moved and changed by what others say and agreeing with them’ (ibid.). One could imagine acknowledging the argument of the other person, perhaps even modifying one’s own justification for voting in a certain way (if we imagine deliberation in a legislative body), though in the end one votes in the same way as intended before. ‘Declarations’ – another Rawlsian mode of discourse in the public forum – could be the vehicle for showing that concern for the other and openness to her or his argument even if that ‘openness to be moved’ falls short of changing one’s final vote. When no formal voting procedure is under way, perhaps ‘style’ could be a similar vehicle for acknowledging the other. I may still do the same thing as before, but ‘in a different way’, where that different way reflects my receptive engagement with the other person.

The real challenge for the virtue of openness, however, comes from the 21st-century widespread reality of fellow citizens who ‘are not interested in the project of finding shared terms for living together. They need not be trying to impose their terms on us (though they might). They may merely only want to live side by side, or they may want to change the terms of inclusion and exclusion’ (Laden, this issue: p. 678). To this challenge Laden supposes that I would respond by considering the defense of the constitutional essentials the threshold past which openness becomes dispersive and excessive. However, he would favor a different path: ‘looking for ways to invite them to a genuinely joint project: not the project of implementing and sustaining an already established constitutional consensus, but the project of working out together as fully co-equal authors, a set of shared terms for living together’ (ibid.: 680). Such ‘invitation’ is said by Laden to require both humility and courage, perhaps to a larger degree than the more limited form of openness I advocate, and he wonders whether the degree of openness required by his path would be considered excessive by me.

My answer to his question is positive. The reason I can offer is twofold. On the one hand it is a contextual, historical reason. The liberal-democratic polities of Europe are in a dangerous situation today because the challenge to their ‘political values’ comes not so much from Muslim immigrants, who by the very fact of enduring so severe risks in order to relocate in our societies demonstrate at least a prudential endorsement of the host society’s basic structure, but especially from the indigenous xenophobic, racist and populist reaction against mass immigration – think of the National Front in France, or how a previously progressive country like the Netherlands has closed itself, of Denmark’s anti-Muslim cartoons, of the Northern League in Italy, every country has its own share of partisans of closure. The danger is that under electoral pressure, EU elites will successfully court xenophobic sectors of public opinion and reinterpret the constitutional essentials (if not change them) in the direction of even greater closure (see the scarf issue in France and the anti-minaret referendum in Switzerland). This dual danger calls for a politics of inclusion and at the same time for a firm defense of the liberal-democratic constitutional essentials.

The other reason is conceptual. If reconceived along the lines suggested by Laden, openness will lose its quality of being ‘political’ and will be undermined by the same drawback of comprehensive virtues as agape or hospitality: no upper threshold, past which openness becomes excessive, will any longer be discernible. For both of these reasons, and with full appreciation of the constructive effort undergirding Laden’s alternative view, I would still deem the version of openness and of political justification put forward in The Democratic Horizon as most in tune with the spirit of a duly updated political liberalism.

Conclusion

No one is more painfully aware than I of the provisional and still incomplete quality of the above answers to the thoughtful and challenging objections raised by Michelman, Benhabib, White, Scheuerman and Laden. While certainly more details and exemplifications are needed, these rejoinders taken together hopefully amount to the beginning of a proper answer: at least they outline the contours of thorough, yet constructive, revisitation of political liberalism. The proper understanding of the function of judicial review between remedying primarily an occlusion of democratic authorship or a shortfall of agreement, and the need to rethink how the authority of the supreme interpreter of the constitution relates to the constituent will of the people in a deeply changed historical context; reconceiving the new limits of the accommodation of diversity, beyond the standard Rawlsian picture of ‘reasonable disagreement’, all the way to including dissent that is only partially reasonable in a democratic multivariate polity; repositioning the ‘democratic ethos’ at the center of a reflection on the democratic quality of complex societies where formal procedures often mask elitist substance, and updating (as well as de-westernizing) the catalogue of the ‘democratic virtues’ – independently of whether it will come to include ‘openness’; avoiding the trap of projecting at the supra-national level of governance the same standards of legitimacy that operate domestically, and working out a specific criterion for democratic, as opposed to technocratic or elitist, governance; reflecting on the proper way of construing ‘conjecture’, and a truly egalitarian dialogical relation with non-liberal interlocutors, in the context of offering ‘democratic justification’: all of these are certainly central items on the agenda of rethinking a liberal-democratic polity at a historical stage when new toxic conditions affect its operation.

At a time when the cutting edge of reflection in political philosophy is perceived to coincide with issues of global justice, global constitutionalism and the foundation of human rights, with the normative underpinnings of migration, borders and citizenship, as well as with climate change, this debate attests, in the end, the persistent vitality of the Rawlsian legacy in the 21st century, as the one normative framework that can best enable us to come to terms with the challenge of hyperpluralism and of further developing democratic arrangements that secure freedom and equality for all and minimize all sorts of oppression, including that occasionally exerted by liberal majorities.