Political liberalism, free speech and public reason
| Author | Matteo Bonotti |
| DOI | 10.1177/1474885114538257 |
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| Subject Matter | Articles |
European Journal of Political Theory
2015, Vol. 14(2) 180–208
!The Author(s) 2014
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DOI: 10.1177/1474885114538257
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Article
Political liberalism, free
speech and public reason
Matteo Bonotti
Queen’s University Belfast, UK
Abstract
In this paper, I critically assess John Rawls’repeated claim that the duty of civility is only
a moral duty and should not be enforced by law. In the first part of the paper, I examine
and reject the view that Rawls’ position may be due to the practical difficulties that the
legal enforcement of the duty of civility might entail. I thus claim that Rawls’ position
must be driven by deeper normative reasons grounded in a conception of free speech.
In the second part of the paper, I therefore examine various arguments for free speech
and critically assess whether they are consistent with Rawls’ political liberalism. I first
focus on the arguments from truth and self-fulfilment. Both arguments, I argue, rely on
comprehensive doctrines and therefore cannot provide a freestanding political justifi-
cation for free speech. Freedom of speech, I claim, can be justified instead on the basis
of Rawls’ political conception of the person and of the two moral powers. However,
Rawls’ wide view of public reason already allows scope for the kind of free speech
necessary for the exercise of the two moral powers and therefore cannot explain
Rawls’ opposition to the legal enforcement of the duty of civility. Such opposition, I
claim, can only be explained on the basis of a defence of unconstrained freedom of
speech grounded in the ideas of democracy and political legitimacy. Yet, I conclude,
while public reason and the duty of civility are essential to political liberalism, uncon-
strained freedom of speech is not. Rawls and political liberals could therefore renounce
unconstrained freedom of speech, and endorse the legal enforcement of the duty of
civility, while remaining faithful to political liberalism.
Keywords
John Rawls, political liberalism, free speech, public reason, duty of civility, political
legitimacy
Introduction
In this paper, I examine an issue which has been surprisingly overlooked in the
literature on John Rawls’ Political Liberalism
1
and his conception of public reason.
Corresponding author:
Matteo Bonotti, Queen’s University Belfast, 25 University Square, Belfast BT7 1PB, United Kingdom.
Email: m.bonotti@qub.ac.uk
This is Rawls’ repeated emphasis on the fact that the constraints of public reason
are only moral and should not be enforced by law. According to Rawls, public
reason is ‘the reason of equal citizens who, as a collective body, exercise final and
coercive power over one another in enacting laws and in amending their constitu-
tion’.
2
Citizens have a duty (what Rawls calls the ‘duty of civility’
3
) to appeal only
to political values (rather than their comprehensive conceptions of the good) when
making decisions about ‘‘‘constitutional essentials’’ and questions of basic justice’,
4
for example, fundamental issues concerning ‘who has the right to vote, or what
religions are to be tolerated, or who is to be assured fair equality of opportunity, or
to hold property’.
5
The duty of civility, Rawls argues, is ‘a moral, not a legal,
duty’.
6
More specifically, he claims, ‘it is not a legal duty, for in that case it
would be incompatible with freedom of speech’.
7
Rawls’ claim has been endorsed and reinforced by other authors. In response to
those who accuse public reason of unduly restricting freedom of speech,
8
for exam-
ple, Stephen Macedo argues that
[a]dvocates of public reasonableness do not advocate restrictions on political
speech ...No one is suggesting that the contours of liberal public reason should be
used to define the limits of constitutional rights to free speech. Public reason helps
define a moral ideal, not a legal requirement’.
9
This response, however, begs the question. Macedo, like Rawls, simply fails to
provide a proper argument for the claim that the protection of free speech always
ought to override any attempt to legally enforce the duty of civility. Neither has
any other author (Rawlsian or non-Rawlsian) endeavoured to analyse this
problem.
10
In order to address this significant gap in the literature, my analysis in this paper
will proceed as follows. In the first part of the paper, I will assess whether Rawls’
claim may simply be due to the practical difficulties raised by any attempt to
enforce the duty of civility by law. In response to this claim, I will argue both
that the implementation of legislation does not entail the adoption of maximally
intrusive and complex measures and that the various provisos gradually introduced
by Rawls in his conception of public reason would render the implementation of
the duty of civility less impractical than one might expect. If impracticality is not an
issue, I will claim, Rawls’ unwillingness to legally enforce the duty of civility must
be driven by deeper normative reasons grounded in a conception of free speech.
In the second part of the paper, I will therefore assess which arguments for free
speech may be consistent with Rawls’ political liberalism. Neither in A Theory of
Justice
11
nor in Political Liberalism does Rawls offer a systematic philosophical
defence of free speech. He simply includes freedom of speech among the ‘equal
basic rights and liberties of citizenship’
12
and briefly discusses free political speech
in connection with the issue of seditious libel.
13
Providing a Rawlsian theory of free
speech is therefore interesting and useful in its own right but my main goal will be
to show how such a theory may contribute in explaining Rawls’ rejection of a
legally enforced duty of civility.
Bonotti 181
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