Once again, I must express my gratitude to Dick, Eric and Pete for reflecting on the view I am trying to develop, and helping me appreciate where worries occur (and, hopefully, where they don’t).
Unlike Arneson and Mack— and probably eighty percent of the philosophical community—I think that the problem of drawing the precise lines (either between the ins and the outs, the reasonable and the unreasonable, or even the far more important line between eligible and ineligible moral rules) is not the truly fundamental issue. I spend a lot of time on these problems in The Order of Public Reason because I have learned over the years that philosophic audiences focus on them like a laser beam. And, to be sure, they are of interest, and are even necessary to flesh out one’s views. However, even if I am wrong about precisely where the lines are to be drawn—and of course on some, perhaps many of the questions, I must be wrong (hopefully, though, not on all)—the crux of the basic idea of my essay remains. We are faced with a range of plausible conceptions of justice. On any reasonable answer to these line-drawing questions, we will confront sensible and good-willed people who have deeply opposing views about justice—that is, about how to structure our social life. What do we say to our neighbor, our colleague, and the normal stranger we meet everyday in the Great Society, upon whom we make a variety of demands, and to whom we very often threaten punishment for noncompliance? We cannot plausibly say that she is subject to some rule because we all agree that it is optimal justice, because we do not agree. And I don’t think we should say (or think) “I’m right and you’re wrong, so obey!” You and I—Eric and Jerry, Dick and Jerry, Eric and Dick—have to decide what it means for us to share an ordered social life, despite our fundamental disagreements in a way that does not depend on simply the use of power by those who are now in the ascendancy. I firmly believe that we have terribly good reasons to treat the overwhelming mass of our fellows as free and equal moral persons and citizens. We wish to know what a free society among equals would look like. As I said, if we could make progress on this “easy” case, we would have made tremendous progress.
Arneson raises a complex issue of the no justification point—when, essentially, a person prefers lack of moral coordination to coordination on some moral rule that she really does not have sufficient reasons to internalize. I’m not sure that I can say a great deal that is helpful here, but let me recall a point on which Rawls and I concur: a justified morality among free and equal persons is a sort of Nash equilibrium. A free moral order is one in which good willed people, drawing on their distinct evaluative considerations, conclude that acting on our morality is the best response to others doing so. Thinking along these lines will lead us to better understand how to think about baselines and “no justification” points. If a rule of our social morality is below a person’s “baseline,” her best response to the moral actions of others does not involve her also adopting the moral stance, but perhaps a prudential or narrowly sectarian one. This, of course, is not even the beginning of an answer, perhaps not even a sketch of a beginning, but it suggests an idea almost totally absent from current social philosophy: a free equilibrium on the moral rules ordering social life.
Enter Boettke, whose comments have taught me a great deal about my own view. Why should we think that there will be any equilibrium? Why won’t we be left with, as philosophers are wont to press, no equilibrium at all—a null set of moral rules on which all can freely act? Boettke is entirely correct that, although specific moral rules vary from culture to culture, and we often disagree on what is the best, the overwhelming majority of rules are ways to solve recurring and basic problems in human societies. There is a much deeper consensus that these matters need to be settled than on how they should be. That idea, indeed, is the root of my account. All societies need to settle social-moral rules of property, personal integrity, individual liberties, and trust norms, though they may go about doing it in rather different ways.
One way of thinking about the range of justice is that, in opposition to much traditional moral and political philosophy, social and political morality is best analyzed as an impure social coordination game (among rationally bounded beings with deep disagreements) that has multiple equilibria. We seek a free moral equilibrium but disagree about the preferred one. Social and political philosophy can help us identify the set of acceptable equilibria but it is hopelessly utopian (or, perhaps, frightfully dystopian) to think it can identify a uniquely acceptable equilibrium. How social orders come to settle on one of many reasonable equilibria is a fundamental issue within social and political philosophy that is, thankfully, once again getting the attention it deserves, though not often from political philosophers. The work of Ostrom, Cristina Bicchieri, Peter Vanderschraaf, Ken Binmore and Herbert Gintis, as well as Boettke’s own work, is tremendously insightful in this regard, and we all can learn a great deal from it.
To achieve a free moral equilibrium involves, as Boettke suggests, a sort of moral constitution making from the ground up. The rise of justified moral rules and conventions are typically the result of the actual choices of imperfectly, boundedly, rational individuals, converging on an equilibrium that allows a free and productive social life.
Now to Grand Inquisitor types. Let me try one last time to say something that is at least helpful (I’m worried that I cannot). Focus on a simple case. Suppose that we have been able to “draw the line” in such a way that we can say we have two groups, Full Members (of our moral practices) and Complete Aliens—those who are not in any way members. Between the two, I am supposing, there is no convergence on any social-moral rule that provides a solution to what I have called our moral coordination problem (a radical supposition indeed given what I have just said about the enduring problems of social life, but let’s go with the philosophical stipulation). With Full Members we can establish a rich set of free moral relations and mutually beneficial interactions, we can sustain the moral sentiments, and we can achieve trust through a set of social-moral rules that all normal participants have reason to endorse and act upon, conditioned upon enough others doing so. When I demand that a Full Member must do, or must not do, something, I am asserting a sort of moral authority over her that she has sufficient accessible reasons to endorse. And we thus have the foundations for the practice of moral responsibility.
Now consider the Complete Alien. We must assume that the Complete Alien simply has no sufficient reason to endorse any of our moral practices, and we have insufficient reason to revise ours to accommodate him. With such a person—at least the quintessential case—none of the normal moral emotions, reactions, or presuppositions hold, and trustful, mutually beneficial relations are apt to be impossible. Our relations with the Complete Alien are thrown back onto our own first-person convictions about what is the moral thing to do, convictions that have no authority over him. We must act on our own moral or even prudential convictions without claim to moral authority, as the Complete Alien will act on his. If the Complete Alien has any “veto” over our actions, it is only a veto over his inclusion in our moral practice, and our claim to authority over him. The Alien certainly has no veto over our moral relations with each other, nor does he have a right to enter our moral practices on his own terms.
I do not see why there is a problem with “suppression” of the Complete Alien’s “nasty activities.” We are now talking about the legitimacy of coercion, not moral authority, responsibility, and the moral sentiments. Because we have supposed that the Complete Alien is entirely outside our practice, the rules of social morality simply do not apply to him, and that would include the moral rule against unjustified coercion; we can protect ourselves as we must. Mack worries, I think, that this seems too symmetric: he will act on his convictions, which seem justifiable to him, as we will on ours. But aren’t we the justified ones? (Certainly— what else could we think?) But, if ex hypothesi, we are assuming that he has his own reasons and we cannot converge on justified social norms, then we and the Complete Alien have a conflict between what might be called two mutually exclusive systems of personal norms or personal social ideals, with no justified social norms to reconcile and adjudicate them. We do not have authority over the Nasty Complete Alien, as he has no authority over us; he has reasons based on his alien perspective to impose his alien ideals on us, and we have reasons based on ours to resist. That, of course, would be a type of moral anarchy (moral life without authority), and a great tragedy that we seek to overcome through a justified social morality.
This, alas, is just scratching the surface. Things get more complicated when others see themselves and us as free and equal persons, when we share some but few rules, and when we yet have sustained interactions. There are a host of matters to be thought about here (for example, when we would expect shared rules to emerge between them and us and when not?), and about the nature of legitimate coercion by the state towards semi-outsiders that I explore in the book (sorry to keep on making this excuse). I’m afraid, though, that we cannot profitably carry on the discussion in this forum. It probably needs at least a couple of beers to sort out.
 For a fascinating study of the place of this authority relation in our attribution of moral responsibility, and what may be left of our normative relations with those who cannot make sense of it, see David W. Shoemaker, “Psychopathy, Responsibility, and the Moral/Conventional Distinction,” The Southern Journal of Philosophy, vol. 49, Special Supplemental (2011): 99-124.