At the core of Jerry Gaus’s “The Range of Justice” is a twofold contention. The positive portion of that contention is that proper philosophizing can inform us about which packages of principles would characterize a just society and which packages of principles would characterize an unjust society. Proper political philosophizing can inform us about what is within and what is without the range of justice. The negative portion of Gaus’s core contention is that proper philosophizing cannot deliver the sort of conclusion that, as Gaus sees it, every sectual political philosopher seeks. As Gaus sees it, every sectual political philosopher offers at least a fairly thick and contentful vision of the just society and sets out to demonstrate that a society will be just if and only if it conforms to this thick and contentful vision. Gaus seems to me to be saying that, insofar as the classical liberal philosopher favors one point along the range of justice, this theorist is one of these many overly ambitious sectual theorists.
So the bad news that “The Range of Justice” delivers to classical liberal thinkers is that they cannot possibly show the unique reasonableness of their position. On the other hand, there are two bits of good news. One bit is that, although good political philosophizing excludes many doctrines about justice from the “eligible set” of political doctrines, sound theorizing includes classical liberalism within that set. For Gaus, this is to say that classical liberalism is one of the positions that each member of the public has reason to accept—even if there are also other positions that each has reason to accept (but not, of course, at the same time). As I understand Gaus, the second bit of good news for the classical liberal is that all the other members of the eligible set are not very distant from classical liberalism. The range of eligible positions is not made up of discontinuous points scattered over the total landscape of proposed conceptions of justice. It seems, therefore, that although classical liberals may have to mature enough to live with market-friendly moderate interventionists, they will not have to grow up as much as Marxists and friends of the Corporate State.
One thing that has to be appreciated about Gaus’s position is the extent to which it is a meta-theoretical view. He has a view about how sensible political philosophy must be done and his primary complaint against most other political philosophers is that they are not following the one sensible and pretty much recently blazed path for political theorizing. On this meta-theoretical view, it is a profound mistake for the philosopher to set out to discover correct normative principles. The natural rights theorist who seeks to discover the most fundamental moral rights, the utilitarian who seeks to detect the common end that we all ought to promote, and the egalitarian who seeks to uncover the distributive rule that all persons must serve all make the same deep mistake of seeking some discoverable, detectible, uncoverable moral truth. At least lots of the sectuality in political philosophy is due to this common, deep, and longstanding mistake about the nature of the enterprise.
In contrast, as Gaus sees it, correct normative principles are not so much discovered as they are constituted; ultimately interpersonal normative principles are constituted by the convergence on them of the reasonable assessments of the agents who will be subject to those principles. Nor is the reasonableness of agents who converge on some package of principles a matter of those agents all discovering the correctness of certain principles. To think of the converging agents in that way is to slip back into the deeply mistaken discovery conception of moral investigation. Rather, an agent will have reason to accept a certain body of principles if and only if a social world structured by those principles will make things better from the perspective of that agent’s given “evaluative considerations.” A package of principles will be converged upon only if a world structured by those principles will make things better from the perspective of every agent’s evaluative considerations.
Properly conducted political philosophy is, then, an inquiry into the deliverances of “public reason.” This is not the reason of some mysterious public person; it is the convergence of the reason of all members of the relevant public—where the reason of each individual is itself constituted by that individual’s evaluative considerations. Gaus takes this focus on public reason—which he sees as emerging primarily from the work of John Rawls—to be a fundamental correction to all or most traditional political philosophizing. Finally, political philosophy is on the proper path.
Why is the public reason path also the path of political liberalism? The answer is that, according to the public reason approach, any political principle under which individuals may be subject to constraint or intervention—for example, the principle that one may be restrained if one is engaged in unprovoked killing—will be justifiable only if it is justifiable to each individual who may be subject to that principle. And it will be justifiable to each individual only if in the case of each individual her evaluative considerations provide her with reason to accept that principle.
A major impetus to the idea that justification of principles must be justification to each individual is the radical diversity among individuals in modern pluralistic societies with respect to their values, aspirations, and (even) their attachment to principles. Since no one concatenation of values, aspirations, and honored rules is privileged, showing that some such concatenations give the individuals with those evaluative considerations reason to accept a certain principle is not enough to justify it. If the justification of principles depends on their conformity to evaluative considerations and each person’s differing evaluative considerations have equal standing, then a justified principle must conform to everyone’s evaluative considerations.
However, as Gaus sees it, the very diversity that supports the requirement that principles may not be put into operation unless they are justifiable to all precludes there being just one package of principles that each has reason to accept. Thus, we get to the bad news that even fans of packages of principles that make it into the eligible set—as classical liberalism does—are going to have to do some growing up. They are going to have to become mature enough to face and live with the fact that theirs is not the uniquely reasonable position.
I want now to turn to some problems that seem to exist for Gaus’s position—at least as I understand it. The first problem is that Gaus seems to ignore a deep difference between the classical liberal accommodation of radical diversity of personal ends and visions of the good life and the typical sectual demand that individuals have to sacrifice their personal projects and commitments for the sake of promoting certain politically favored substantive ideals of life or substantive visions of the good. Some of these latter theorists offer detailed prescriptions about the modes of life into which the state should mold its citizens. Others merely (!) point to some allegedly common end or set of ends—like the aggregate happiness or the maximization of the income of those in the lowest income group or the equalization of welfare—which the state ought to insure that people serve. The common element among all these theorists is the elevation of certain substantive goals or aspirations to political ends that individuals are to be required to advance despite the diversity of their individual evaluative considerations. For this reason, each of these doctrines can be charged with failing to take seriously the diversity of people’s personal goals and aspirations.
In contrast, classical liberalism eschews the elevation any substantive ends to the status of mandatory social goals. It does this by focusing on precluding means rather than mandating ends. At least as a first approximation, the classical liberal stance is that individuals and associations may go for any ends whatsoever but not by means that preclude others from going for their chosen ends. Only those ends are precluded that inherently involve the deployment of forbidden means, such as the end of being the most skilled random killer in human history. Advocates of such a classical liberalism can plausibly claim that their view uniquely takes seriously and accommodates the radical diversity of persons’ goals and aspirations that Gaus himself seeks to exploit.
Of course, more has to be said on behalf of these constraints on the means that individuals may employ in the pursuit of their respective ends than pointing out that focusing on them is a way of avoiding the enshrinement of mandatory social ends. Looking ahead, perhaps abiding by such constraints can be shown to be a reasonable response to others’ existence as free and equal moral persons. In addition, there will of course be disputes about how exactly to articulate those constraints that, according to classical liberalism, are the primary business of legal institutions to enforce. However, we should note that nothing within this approach commits the classical liberal to the view that there is one best articulation of these constraints that it is the job of philosophy to identify.
I have presented the present case for classical liberalism as an instance of the old, but child-like, kind of political philosophizing that Gaus disavows. However, we can recast the argument as an appeal to the test of mature Gausian public reason. All we have to do is to envision that the proposal to order society on the basis of precluded means rather than enshrined ends is being put before each member of the public and then inquire whether or not all of those members will have reason to accept the proposal given their evaluative considerations. I think that a second problem with Gaus’s overall view is that, when we recast this classical liberal argument into a proposal that is being put to the Gausian public reason test, this swell argument seems to fail. It seems to fail precisely because some members of the public—like our friend whose central goal is to be a magnificent random killer—will have at the core of their evaluative considerations ends that inherently involve violations of the proposed constraints. So, these individuals will not have reason to accept the proposal and, therefore, the proposal will not qualify as public reason.
I have been careful to say that it seems that the classical liberal proposal will fail the Gausian test because my example of the individual who aspires to be a champion killer points us to deeper yet issues within the Gausian system—issues of which there are only hints within “The Range of Justice.” At the core of these issues is the role played within the system by the thought or the sense that human beings are free and equal moral persons.
As I understand it, what is crucial for Gaus is not the (discoverable) morally portentous fact that we all are free and equal moral persons. Rather what is crucial is all or almost all of us having a (possibly unrecognized) sense of ourselves as all being free and equal moral persons. For all or almost all of us—perhaps even for the aspiring champion killer —this portentous attitude is deeply embedded in and cannot be extricated from our affective and emotional make-up. This deep strand within our motivational make-up is manifest in our disposition to demand that others treat us as free and equal persons and in our disposition accede to the similar demands of others. This motivational strand is the crucial counterweight within our respective evaluative considerations to the radical diversity of our personal goals and aspirations. Moreover, again as I understand it, the whole enterprise of public reason is only envisioned as being conducted among those whose evaluative considerations include this deep internalization of a sense that we are all free and equal moral persons.
If anything like this understanding of Gaus’s position is correct, a slew of further problems emerge. Can those of us who are within the circle of internalizers justifiably enforce even the most basic liberal principles or constraints—such as the constraints against unprovoked killing—against agents who have not themselves internalized the sense that all human beings are free and equal moral persons? Are liberal internalizers in any sense more justified in enforcing such basic liberal principles against non-internalizers than those non-internalizers are justified in their violation of those principles? When the internalizing Peter Pan defends himself against unprovoked attack by Captain Hook (whose motivational make-up is not structured by a sense that persons are all morally free and equal) is Peter’s defense in any sense more justified than Hook’s yet more determined attack? Can we consign all these inquiries to the ash-heap of child-like questions by plausibly insisting that the motivational structure of at least almost all human beings does in fact embody the sense that we all are free and equal moral beings?
Gaus points to Locke on toleration as a crucial moment in the development of liberal thought—perhaps even (as Gaus sees it) grown-up liberal thought. But, in the idiom that we have been employing, Locke’s central claim was not that we have all at least implicitly come to have a sense of ourselves as being free and equal moral persons. Rather his claim was that we are free and equal moral persons.
Consider whether the activities of Grand Inquisitors may justifiably be resisted. Locke thought that a Grand Inquisitor could justifiably be suppressed because his prospective victims were free and equal moral persons, not because some tendril of respect for persons wound unnoticed through that Grand Inquisitor’s evaluative considerations. Of course, Locke (or others) must then bear the burden of explaining why one should affirm such a morally portentous fact about human beings and of explaining why a significant part of the import of this fact is that freedom is to be honored and that infringements upon freedom are to be challenged. Taking up the burden of that project seems to me to be more promising and potentially rewarding than searching for a convergence of reasons propelled by persons’ given evaluative considerations.
 To avoid complicated formulations, I write as though there is a single classical liberal position. Gaus would presumably say that a range of distinct classical liberal positions are within the eligible set. My guess is that he would not locate a hard-nosed libertarianism that rejects all coercive redistribution within the eligible set.
 I say “given” to convey that these considerations are not themselves subject to any normative test or filter.