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Political Theory

DOI: 10.1177/00905917073124372008; 36; 239 originally published online Feb 5, 2008;Political Theory

Miguel VatterRawls on the Political

The Idea of Public Reason and the Reason of State: Schmitt and

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Political Theory

Volume 36 Number 2April 2008 239-271

2008 Sage Publications10.1177/0090591707312437

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239

Authors Note: Previous drafts of this essay were presented at American Political ScienceAssociation (APSA) (Philadelphia, September 2006), and in the political theory workshops atYale University, Hawaii University, and Flensburg University. A preliminary version of this essaywas read at the international conference Filosofa de la Democracia, Universidad de los Andes,Bogot, Colombia (October 2006) and appears now in the conference proceedings as El con-

cepto de la poltica y la razn pblica en Schmitt y Rawls, Filosofa de la Democracia, ed.Rodolfo Arango (Bogot: Siglo del Hombre Editores, 2007). I would like to thank the organiz-ers and the participants of these events for their helpful comments and criticisms. A grant fromthe American Council of Learned Societies helped support the research into Schmitt andmedieval political theory; and a Chilean national research grant, FONDECYT n. 1071087,helped support my work on Rawls. Thanks go to Mary Dietz and two anonymous reviewers fortheir editorial suggestions.

The Idea of Public Reasonand the Reason of State

Schmitt and Rawls on the Political

Miguel VatterPontificia Universidad Catlica, Chile

Rawls and Schmitt are often discussed in the literature as if their conceptionsof the political had nothing in common, or even referred to entirely differentphenomena. In this essay, I show how these conceptions share a common spaceof reasons, traceable back to the idea of public reason and its developmentsince the Middle Ages. By analysing the idea of public reason in Rawls andin Schmitt, as well as its relation to their theories of political representation,I show in what way Schmitts concept of the political cannot be divorced froman idea of justice, while, conversely, Rawls conception of justice cannot bedivorced from a theory of the political. In that way this paper thematizes the

internal relation that each theory establishes between justice and power, delib-eration and decision, and consensus and disagreement.

Keywords: John Rawls; Carl Schmitt; the political; public reason; justice; power

Introduction:Disagreeing About the Political

The later Rawls argues that liberalism needs to be reconceived as polit-ical if its principles of liberty and equality are to serve as the basic

terms around which a stable, well-ordered society can be constructed under

Special Section:ThePolitics of PublicReason

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240 Political Theory

the conditions of democratic pluralism. Rawlss political liberalism hasbeen frequently criticized for suggesting a normative idea of politics, which

considers only the possibility of deep-seated consensus instead of radicalantagonism, rational deliberation instead of political decision, and justiceinstead of power.1 Relying on the concept of the political as famously the-orized by Carl Schmitt, some critics of the later Rawls have questionedwhether his use of the term political for his liberalism is justified since,on their reading of the Schmittian conception, the political refers to a levelof social conflict that is irreducible to the project of establishing a stablepolitical order.2 Likewise, the defenders of Rawls turn towards the politi-

cal see in his conception something completely opposed to Schmitts. Theyunderstand the term as a synonym for the reasonable, that is, as a univer-sally shared faculty or moral sense of justice aimed at seeking neutralnormative conditions around which everyone could come to stand in agree-ment, thereby reaching not only a peaceful cohabitation but also a justsociety.3 In this way, critics and defenders of Rawls and Schmitt both denythat the others theory is political or that it has anything important to sayabout the political.

The above way of framing the disagreement between Rawls and Schmitt,curiously enough, appears not to take into account the surprising coincidencein the terminology employed by the two philosophers. By speaking about theconcept of the political and the category of the political, they both grantcentral importance to this concept or category in their theories concerning thecreation of a stable social order.4 This begs the question: Is the use of the termthe political on the part of such different thinkers merely a case ofhomonymy, such that in reality, Schmitt and Rawls would be referring tocompletely different phenomena? Or, are they talking about the same thing,but doing so through a concept or category whose sense is inherently debat-able, through an essentially contested concept5?

In this essay I propose a third possibility on how to think of the differencebetween these two thinkers with respect to the political. I argue that the con-cept or category of the political in Schmitt and the later Rawls presupposesa shared space of reasons, a common discourse, within which they stake outopposing positions. In particular, their common space of reasons is populatedby concepts and arguments drawn from the same history of the idea of public

reason, a history which begins in the late medieval period and reaches,through continuities and discontinuities, up to Rawlss and Schmitts theo-rizations of public reason in the 20th century. Without wishing to deny thatSchmitt is an anti-liberal thinker6 or that Rawls identifies himself as a liberalphilosopher, I shall argue that the fundamental disagreement between them



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is not due to having incompatible concepts of the political. Rather, I con-tend that their differences stem from the contrary ways in which they pri-

oritize two co-originary aspects of the same idea of public reason.Rawls maintains that his conception of justice is political because its

terms rely on the existence of certain fundamental ideas seen as implicit inthe public political culture of a democratic society.7 Thus, he argues that thepublic use of reason should draw its terms and arguments from this kindof political culture. However, Schmitt argues that the political is unavoidableprecisely because the public political culture of Western democracies istraversed by an irreconcilable conflict between the ideas of democracy and

liberalism, of equality and liberty. For him, the public use of reason shouldalways consider the polemical nature of these fundamental ideas and decidewhich side to take.8 Rawls, for his part, writes Political Liberalism partiallyto create a standpoint from which this conflict need not be understood asunavoidable and irreconcilable, paving a way for the public use of reason tohave the power to reconcile the fundamental tensions running through moderndemocratic societies.9 I hope to show that a genealogical view of the funda-mental ideas of the public political culture of Western democracies, in par-

ticular those associated to public reason and to political representation, mayexplicate the fundamental reasons for this kind of dispute.10

Until now, much of the English literature on Schmitt has presented hisdiscourse on the political without giving due consideration to how it fitstogether with his conception of justice and jurisprudence.11 In contrast,much of the literature on the later Rawls has downplayed the significanceof his introduction of the concept of the political in reworking his theory of

justice.12 I intend to show that the uses of public reason found in Schmittand in the later Rawls indicate that neither thinker believes in an abstractopposition of justice and power, deliberation and decision, or consensusand disagreement when it comes to theorizing the foundations of legitimatepolitical order.13

The Problem of Stability as aProblem of Application

In an influential critical essay on the development of Rawls thought afterA Theory of Justice, Brian Barry argues that Rawls move towards a politi-cal conception of justice is motivated more by his perception of a flaw in hisfirst books treatment of the problem of stability than by a reaction againstcommunitarian critiques of his theory.14 Barry argues that if Rawls is correct

Vatter / Public Reason and the Reason of State 241



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about his theory of justice being free-standing in the sense that it is inde-pendent of any comprehensive view, and if (as Barry argues,pace Rawls,

at some length) it should have already been the considered view of RawlsinA Theory of Justice, then it follows that reasonable people will choose toapply the principles of justice for their own sake, not because they suppos-edly overlap with the reasonable comprehensive views of what othershold to be good or moral.15 According to Barry, this way of looking atRawlss conception of justice resolves the problem of stability withouthaving to concoct an account of the political found in the later Rawls.Unreasonable persons will simply have to accept that a political order can-

not be based on their views, and should they not do so, then they can belegitimately coerced into doing so.16

Barry is surely right to point out that in Political Liberalism, Rawls istrying to address a perceived failure with the last two chapters ofA Theoryof Justice, which deal with the motivation to apply principles of justice.17 Idisagree with Barry on his understanding of what is ultimately at stake withthe problem of stability. As Rawls says, the principles of justice apply to thebasic structure of a society.18 This supposes that, in ideal theory, the basic

institutions of a society have to realize, or apply, the principles of justice.If, for whatever reason, these institutions are unable to apply justice, thenthis presents a problem of (the) stability (of justice). To understand stabil-ity as a problem, one must be aware of the distinction between the prin-ciples of justice and their derivation on one hand, and the entirely differentmatter of the legitimacy of the institutions that apply these principles, onthe other. Evidently, the problem of stability or legitimacy, cannot beanswered by applying the principles of justice without raising severalquestions. This is because the stability or legitimacy of political and socialorder is the condition of possibility of such an application.

The common reference to a category or concept of the political in thelater Rawls and in Schmitt is not coincidental: both give a political frame-work to their concepts of justice (in the sense ofjus or principle of justice, notin the sense oflex or legal norm) to resolve the problem of stability or legiti-macy. The latter becomes problematic for them, in the first place, becausethey both presuppose that what is politically right or just (contrary to what isethically good) necessarily denotes a relation between the self and its other,

as opposed to a self-relation.19 So conceived, the other is not a priori some-one who is on ones side, and therefore is someone who could indeedbecome an enemy, or, at the very least, an opponent. This possibility willdepend on whether the relation between self and other can be considered byeither to be in accordance with right or justice. That is why Rawls and




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Schmitt both think that, if principles of justice are to be realized in basicsocial structures that enjoy stability or legitimacy, the working out of relation

to the other will have to assume the character of a theory of the political.More particularly, the political comes into play whenever the question

of the application of a principle cannot be answered solely by reference tothe grounds that make the principle valid, as occurs in the case of the prin-ciples of justice that have as subject the basic structures of a society.Hobbes, whose idea of public reason was designed to address the problemof application, put the matter as follows: it is one thing to be aware of thelaws of nature (equivalent to principles of justice) and want to follow them

(equivalent to having the right subjective motivation), but it is an entirelydifferent matter to constitute a sovereign power that makes their applicationpossible by providing for a stable political order that will not punish indi-viduals for having the right motivation.20 The problem of stability or legit-imacy is incorrectly framed if one thinks that it can be resolved byexamining the subjective motivation for doing what is right (for allsuch matters occur in foro interno, and remain inscrutable to the other). Theanswer to the question why should I obey these institutions and their

authority? is not because I am reasonable but rather because they arelegitimate. But what makes them legitimate cannot be seen by further ana-lyzing my subjective motivation. Rather, institutions are legitimate in so faras they manage to apply justice; in so far as they make up a political orderthat realizes justice. How such political order is possible cannot beaccounted for by the same arguments that ground the derivation of the prin-ciples of justice themselves.21

For a theory of justice to be political, as Rawls and Schmitt understandthe term, the principles of justice must be applied in such a way as to allowfor the establishment of a stable political unity in a society characterized bya plurality of interests (economical, social, etc.) and comprehensive beliefsystems (religious doctrines, ethics, philosophies, etc.) that conflict withone another. Schmitt assumes pluralism as a fact, as something given, asmuch as Rawls.22 Both propose to find a basis for a political association thatwill not deny the fact of pluralism while, at the same time, making it pos-sible to have one basic or sovereign political association rather than manyassociations strung together without an overarching, supreme unity.23 In

this sense, although both assume the centrality and unavoidable nature ofthe fact of pluralism, neither Rawls nor Schmitt are pluralists in the his-torical sense of the term.24

Both distinguish legitimacy from justice, understanding legitimacy tomean the support that a people gives to the state and other basic structures




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for the right reasons, which Rawls calls stability for the right reasons.25

For these reasons not to remain merely matters of conscience, political

unity must be constructed by judgments or decisions that have a radicallypublic character.26 In other words, legitimacy presupposes an idea of publicreason that has in sight what is just or right (justum, gerecht). For bothSchmitt and Rawls, legitimacy presupposes a people, and for that reasonthe dimension of the political also refers to a relation among citizens that isprior to the state but is not natural, and thus, must be constructed.Therefore, the political concerns the constitution of a people and of itspower.27 In other words, for both Rawls and Schmitt, political unity must be

constructed by the exercise of the capacity to judge or to decide that bringsa group of persons together and forms them as a people.Schmitt and the late Rawls also coincide in the belief that a conception

of the political must be understood to be free-standing or autonomous in thesense of being not metaphysical.28 This autonomy of the political signalsa rejection of the project to give either a metaphysical or a religious foun-dation to justice. For Rawls, the burdens of judgment are such that it isimpossible to achieve consensus on any one reasonable comprehensive

philosophical and moral doctrine through reason alone. As a consequence,if the political unity of a society is based on any such doctrines, that societywill remain unified only to the extent that the sanctions of state power areemployed, leading to instability in either the short or long run. Therefore,that states foundation would be merely ideological.29 The metaphysical orreligious foundation of justice, for Rawls, runs afoul when it meets withthe fact of oppression.30 Analogously, Schmitt thinks that the autonomyof the political, with respect to metaphysical or religious conceptions of thegood life, is the sole alternative to handing over supreme coercive power towhomever feels more convinced (on metaphysical or religious grounds) ofthe truth of their beliefs, to whomever feels that such conviction not onlymakes them right (gerecht) but also self-righteous (selbstgerecht) aboutbeing in the right, to employ a play on words he uses.31

In the following sections I argue that the best way to understand the polit-ical in Rawls and Schmitt is to see in what sense this concept or categoryaddresses the problem of who can judge what is just or who has the right toapply (the principles of) justice (juris-dicere) given the existence of reason-

able disagreement on the truth of comprehensive doctrines of the good. Thequestion of who is judge (of what counts as just) has two sides to it: on onehand is the question of the deliberation on what is just; on the other is thequestion of the publicity of what is just. My claim is that Rawls and Schmittboth articulate their answers to this question through a combination of ideas




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of public reason and political representation. Public reason is the organ ofjuris-dicere or of legitimacy; only a public use of reason can apply princi-

ples of justice and achieve stability.32 Similarly, the judgments on the basisof which a people constitute themselves, and thus the very idea of a publicreason, relies on principles of political representation. Reasons cannot bepublic unless they can be developed within procedures of political repre-sentation for all members of society.

The Origins of the Idea of Public Reason in

Medieval Political Thought

Historians of medieval political ideas have traced the idea of public rea-son back to the 12th and 13th centuries, when it is developed by legists,canonists, and commentators of Roman law. As Gaines Post has shown,some of those jurists worked under the auspices of the new princes (andPopes), who desired to consolidate their kingly estate (status regis) in acontest with the claims to power made by the nobility, the emperor, the

people and their common law, and the various orders within the Church.33

The original term for public reason is ratio publicae utilitatis, by reasonof the utility of what is public. This term means the reason (ratio) thatgives a superior right (jus) to an office or estate (status), in this case thestatus regis, compared with the rights of private persons, because it is

judged that such an office is of utility for all equally (publicae utilitatis).Thus, public reason grows out of the judgment that the kingly estate existsfor the good of the public, or of the entire society (status regni).34

Two points follow from this definition that are of importance for the sub-sequent history of this concept. First, the idea of public reason is internallyconnected to the claim of superiority (in terms of power) of one estate(status) over others. At the core of the idea of public reason, there is noabstract opposition between justice (reason) and power (sovereignty). Fromits emergence, the idea of public reason is connected to the project of estab-lishing the sovereignty of the state over society. Second, the belief that thesuperiority of an estate lies in the equal interest of all depends on the com-plex combination of two concepts that are both tied to the idea of political

representation: full powers (plena potestas) and whatever touches all,must be consented by all (quod omnes tangit, ab omnibus approbetur).Full or plenary powers were granted to the representatives of private per-sons or other associations when they were summoned to the kings courtand council to argue for their rights in a deliberative process, leading to a




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decision with regard to the royal claim of public utility and its preroga-tive.35 The second concept is the innovative application of the Roman pri-

vate law principle ofquod omnes tangitto the sphere of public right, statingthat any affair that could potentially affect everyone thereby became every-ones concern and must be consented by everyone. This generated a needfor the interests of all affected parties to be adequately represented.36 At theorigin of modern theories of political representation there is no abstractopposition between deliberation and decision or between procedural andsubstantive justice.

In this medieval jurisprudence, the reason for why an estate qualifies as

something of public utility is called ratio necessitatis. The public reasondetermines the extraordinary measures (including laws) that need to be takenin cases of necessity or emergency to save the political community. It wasthe kings right to deal with an emergency: for the common good he claimeda superior jurisdiction, in order to suppress disturbers of the peace within thekingdom, made a new law for a new situation with the counsel and consentof his council, and of all whom the matter touched.37 Schmitts attempt todevelop an entire jurisprudence out of a theory of the sovereign decision on

the state of exception, therefore, is entirely in keeping with at least one latemedieval tradition of jurisprudence.38 If Posts historical reconstruction ismore or less correct, then this is the same tradition that gave birth to themodern concept of due process, and an embryonic form of the proceduralconcept of justice that arguably reaches its highest formulation in Rawlsstheory of justice.39

Basing my argument on Posts historical analysis, I identify two differ-ent but co-originary senses in the concept of public reason (ratio publicaeutilitatis). On one hand, the concept refers to a reasonforan estate (status)with a superior right orjus. The public reason in question is that this estateserves the good of the entire community and that community has a publicright that is superior to and embraces all private rights of kings andsubjects.40 On the other, the concept of public reason refers to a reason ofthe estate which is charged with interpreting or deciding, case by case, whatthe good of the community requires.41 One can say that the first sense ofpublic reason (ratio status rei publicae, by reason of the government ofpublic affairs) denotes the superiority of the power of the political com-

munity over that of the estate, and thus I shall refer to it as a reason for thestate, whereas the second sense of public reason (ratio status magistratus,by reason of the ruling office or power) denotes the superiority of thepower of an estate over the rights of private persons, and thus I shall referto it as a reason of the state (in fact, Post identifies it as a precursor of abso-lutist raison dtat). 42




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I argue that in their interpretations of the idea of public reason, Rawlsprivileges and radicalizes the first sense of the term, while Schmitt does the

same for the second sense. But, in essence, both occupy contrary standpointswithin the same space of reasons opened up by the emergence of the idea ofpublic reason in the late medieval context. In Schmitt, the public reason ofthe state (for Schmitt, sovereign is he who detains such reason) absorbs thepublic reason for the state: the decision of the sovereign constitutes thepeople. Schmitts theory of the political requires that the good of the people,that is, the reasonforthe state, be determined by the sovereign decision asto whether a state of exception or necessity exists (which is itself a decision

of reason of state). On the contrary, in Rawls, the public reason for politicalsociety (not identical with the state) is superior to the public reason ofthestate, and the application of justice is what permits the constitution of powerfor such a people. For this constitution, justice is the scheme of the equalrights of citizens that delimit the sovereignty of the state itself.

The Idea of Public Reason in Schmitt

Whereas medieval jurisprudence considers the state of emergency(status necessitatis) to be contingent,43 Schmitts theory of the political con-siders the state of emergency or state of exception to be the permanent andnecessary condition of possibility for the political unity of a society.44 Therights of private persons, including the rights of persons as citizens, arealways already limited in Schmitt by the supreme right of the sovereign.This supreme right is simply the right that the state has to assure civil peacethrough its decision as to whether society is or is not in a state of war:

The state as the decisive political entity possesses an enormous power: the pos-sibility of waging war and thereby publicly disposing of the lives of men. The

jus belli [right of war/MV] contains such a disposition. It implies a double pos-sibility: the right to demand from its own members the readiness to die andunhesitatingly to kill enemies. The endeavour of a normal state consists aboveall in assuring total peace within the state and its territory. To create tranquility,security, and order, and thereby to establish the normal situation, is the prereq-uisite for legal norms to be valid. Every norm presupposes a normal situation,and no norm can be valid in an entirely abnormal situation.45

The most important consequence of this Schmittian radicalization of themedieval doctrine of the state of emergency is that the primary politicalenemy becomes the internal enemy, because the fundamental decision thatconstitutes political unity is whether or not there exists a state of civil peace.46




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What I would like to emphasize in this context is that Schmitts theory ofthe political cannot be understood apart from the reference to a concept of

justice found at the heart of his jurisprudence. Schmitt considers that justiceis always a regulative idea of what is just for everyone and what lies inthe equal interest of everyone.47 Wherever Schmitt speaks about justice, healways mentions justice in connection to reason.48 For him,Jus orRechtisan idea of reason; Schmitt does not have an irrational theory of justice.49

But if this is the case, then what is the meaning of Schmitts infamousdecisionism, with its necessary reference to an unquestionable source ofauthority, which, relative to the standards of modern political rationalism,

gives his jurisprudence its unmistakeable aura of irrationality?50

As CarloGalli has demonstrated, for Schmitt the ideas or principles of justice, pre-cisely because they are abstract ideals, need to be applied to reality.51

Schmitt does not consider reality to be constituted a priori by such ideas orprinciples of justice. From the beginning of his production, he rejects theidealist conception of reality, and he does not have a dialectical conceptionof the relation between idea and reality.52 Schmitts theory of justice, there-fore, is a theory for which the problem of the application of the idea of jus-

tice is primordial with respect to the justification of the contents of theprinciples of justice.53

Schmitts attacks on parliamentarism are normatively grounded on hisclaim that the pre-existing and presumed congruence and harmony of rightand statute, justice and legality, substance and procedure, characteristic ofa parliamentary regime, remains unproven.54 In fact, such congruence forSchmitt is ultimately undemonstrable because, on his account, every par-liamentary legal system necessarily contains other sources of right apartfrom statutory lawmaking that are embodied by the extraordinary law-givers envisaged by their constitutions.

The key to understanding Schmitts jurisprudence lies in making out thereasons for the superiority of extraordinary over ordinary legislativeauthority. A good example of such reasoning is found in the discussion ofthe extraordinary lawmakers, particularly the executive endowed withdecree powers, which Schmitt identifies in the Weimar Constitution.Schmitt argues that, in the executive lawmaker,

the simple truth of legal scholarship becomes evident through all the norma-tive fictions and obscurities: that norms are valid only for normal situations,and the presupposed normalcy of the situation is a positive-legal componentof its validity. However, the lawmaker under normal circumstances is some-thing different than the special commissioner of the abnormal situation whore-establishes normalcy (security and order).55




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In emergency situations, or in the case of necessity, the race to legislatebetween legislative and executive reveals the very clear superiority [of the

extraordinary lawmaker] . . . which prompts his introduction.56 Schmittsargument for the superiority of the extraordinary lawmakers with respect toparliament does not rely merely on the superior speed with which the exec-utive can make law in emergency situations compared with the slowness ofthe parliamentary legislature, for that is not a normative ground for superi-ority.57 Rather, the superiority of extraordinary lawmaking is grounded onthree kinds of reasons (rationes): rationes materiae, adduced to justify thesuperiority of substantive legal restrictions (for instance, a bill of rights)

within a formal-legal constitution; rationes supremitatis, adduced to justifythe priority of the peoples plebiscitary will in relation to that of parlia-mentary majorities; and rationes necessitatis, adduced to justify the superi-ority of executive decree powers during states of exception.58

The idea of a public reason in Schmitt therefore brings together a con-cept of right and one of might (in the sense of superiority): it is the reasonthat gives more might to the right of the executive over that of parliamentto intervene in an emergency situation. For Schmitt, legitimate authority is

a matter of superiority in issuing commands that will be obeyed. This supe-riority is always determined by a reason: authority in Schmitt is superioritybased on reasons. This does not mean that authoritative decisions are, assuch, the conclusion of rational syllogisms: they remain acts of the will ofa public person, where, for Schmitt, the will is not identifiable with practi-cal reason. In the terms I introduced above, such authority based on reasonswould be the public reason for having the state.

However, in Schmitt it is the theory of application that determines thesense of his discourse on legitimacy. This theory of application has threeessential components, all of which are traceable to Schmitts appropriationof the idea of public reason found in Hobbes. First, the state is always andonly a function of the application of justice. For Schmitt, there is no legiti-mate state that is not, in the above sense, aRechtsstaat.59 Second, the polit-ical turns on the sovereigns decision as to who is a friend and who is anenemy.60 The political is a matter of deciding about the safety of the entiresociety in a state of emergency.61 For Schmitt, this decision is an act of will,not of reason.62 Hence, the political decision is always associated with a

public person or an office to which there corresponds an authority.63 In theterms introduced above, this aspect would correspond to the public reasonof the state, i.e., the reason of the public person who decides in the lastinstance. Through the authoritative decision, the sovereign applies justice(Recht,jus) and determines the existence of a normal situation. That is why




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Schmitt says that the concept of the political is more primordial than theconcept of the state;64 even though he does not thereby mean that the polit-

ical could have an existence that is separate from the state, for the politicalin Schmitt is always oriented towards the determination of what in a societycan function as a state, i.e., what can apply justice. Third, in a normal situ-ation, the legal norm (Gesetz, lex) obtains validity or legality (Geltung/Legalitt), which needs to be distinguished from legitimacy (Legitimitt).65

For Schmitt, only a political authority can be legitimate, not a legal norm.Legal norms can only be valid. This is why he adopts as the fundamentalformula of his jurisprudence Hobbess dictum: authority, not truth, makes

law (auctoritas, non veritas, facit legem).66

He contends that legitimacyalways has the superior right with respect to legality.67

From the above elements Schmitt derives his formula for legitimacy,which is also couched in a Hobbesian dictum: I obligate because I protect(protego ergo obligo).68 The sovereign decision as to whether there is orthere is not a state of war counts as the primordial application of justice, inthe sense ofjus belli.69 This application of justice on the part of the stateas the decisive political entity is intended to protect the subjects for the

right to demand from its members the readiness to die and unhesitatingly tokill enemies is but part and parcel of the endeavour of a normal state . . . inassuring total peace within the state and its territory. That is why the sov-ereign can legitimately claim from them their obedience to the norms andmeasures of the state.

Now, if it is rather easy to trace a direct line from the late medievaljurists of the superiority of the status regis, through the theories of absolutesovereignty of Bodin and Hobbes, to the concept of the political in Schmitt,the opposite is the case for the idea that the good of the people functions asthe reason for the state. This is an idea which makes only fleeting appear-ances in Schmitts writings. Since the decision on who is an enemy refersto an existential threat to ones way of life,70 this decision must be takenby the state, but it must also meet with the consent of the people as a wholefor as long as a people exists in the political sphere, this people must, evenif only in extreme casesand whether this point has been reached has to bedecided by itdetermine by itself the distinction of friend and enemy.71 Togive a democratic edge to his conception of the political, Schmitt here

applies the quod omnes tangitprinciple, given that the decision to engagein war affects all of society, and therefore must be consented to by the entirepeople and by each and everyone of its members.72

This characteristic of the concept of the political and its public reason,that is, of the ratio that is present in the sovereigns decision to apply the




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jus belli, is congruent with Schmitts concept of democracy, which isdefined as the identity between ruler and ruled. An identity that, in turn,

presupposes the homogeneity of a people.73 After all, without presup-posing this homogeneity, it would be hardly realistic to expect an entirepeople to determine by itself the distinction between friend and enemywith the required univocity. Schmitts basic idea is that the unified will of apeople corresponds to the decision of the singular will of the sovereign orof the extraordinary legislator.74 For Schmitt, the distinction between internalfriends and enemies is always connected to a substantive concept of ahomogeneous people.75 From such considerations, Schmitt derives his

well-known belief that democracy and dictatorship are not incompatible.76

At times, especially in his constitutional writings, this extraordinary legis-lation gets associated with the republican idea of the peoples constituentpower (pouvoir constituant).77 Such power stands in contrast to the produc-tion and application of legal norms, which he calls ordinary legislation andassociates with the constituted power (pouvoir constitu) of the state,understood as a system of legal norms and measures.

Such references to aspects of a republican theory of the state in some of

Schmitts texts need to be taken with a grain of salt. In reality, the purportedcontradiction between liberalism, with its atomistic principle of representa-tion, and democracy, with its corporativist principle of representation, thatstructures Schmitts entire polemical writings during the Weimar period,misses completely the tertium daturof modern republicanism and its ownprinciple of representation, which is irreducible to the above mentionedpossibilities. Rawls certainly did not forget that in The First DefinitiveArticle to Perpetual Peace, Kant distinguishes a democracy from a repub-lic precisely because the latter is centered on a principle of representationthat separates the power of the people from the exercise of state sover-eignty. Schmitts idea of democracy, by way of contrast, ultimately relies ona principle of representation that he finds in the political tradition ofRoman Catholicism.78 The idea that the omnipotent sovereign representsan entire people as well as every individual member of this people relies ontwo characteristic features of this Catholic idea of political representation.79

The first of these is that political unity comes to society or to the peoplefrom above.80 Political unity is attained when a personal representative of

justice applies this jus through rulings.81 The second feature of Schmittsdevice of representation is that (worldly) life must be sacrificed for (eter-nal) life: citizens must be capable of giving up their physical life to thestate on demand for the sake of receiving a redeemed life, namely, an ulti-mate meaning to ones existence.82 That is why the original position in




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Schmitt, where the principle ofjus (belli) is decided upon, coincides with astate of emergency, where the application of justice is inseparable from the

decision between friend and enemy, and thus from the readiness to die andunhesitatingly to kill enemies. Schmitts principle of representation standsat the antipode of Kants republican principle of representation. WhetherSchmitts political Catholicism is more democratic, in any sense of theterm, than the republican principle, remains a dubious proposition.

The Idea of Public Reason in Rawls

In Political Liberalism, Rawls reverses Schmitts order of priority withrespect to the two senses of the idea of public reason. In Rawls, the publicreasonforthe state (that is, the good of the political society) is superior tothe public reason ofthe state. The public reason for the state is modelled bythe original position in which disinterested or fair terms for social coop-eration between citizens (the principles of justice) are chosen by the repre-sentatives of these citizens.83 The resultant public and mutual recognition of

the principles by the citizens amounts to the construction of a people withthe (constituent) power to give itself a political constitution, that is, the con-struction of a people as an extraordinary legislator.84 In contrast, the publicreason of the state is composed of the kinds of justifications that the statemust give to its citizens to show them that its laws, institutions, and mea-sures (i.e., its ordinary legislation) not only respect, but also protect, thispower of the people.85 The most basic sense of public reason in Rawls doesnot refer to a reason that renders the sovereign necessary, as withSchmitts ratio necessitatis. On the contrary, it is a reason that frees thepeople not from the state itself, but from the sovereignty of the state overthe political life of a free society.

A public use of reason is already at play in the original position. This isthe case not only because each representative of a citizen must choose theprinciples of justice in as rational a manner as possible, but also becausethese principles must be able to be such that the other representatives mayconsent to them. This means that the principles of justice must be such thatevery citizen not only knows him- or herself to be adequately representedin

the selection of these principles, but also that all other citizens recognizethis, in the sense that the decision for these principles is representative of thepolitical unity of all citizens into a people. This condition for the principlesof justice corresponds to the condition of reciprocity that Rawls considersfundamental to a reasonable, and not merely rational, idea of public reason.86




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According to the terms I introduced above, the Rawlsian condition ofreciprocity in the original position grants to each citizen a stake in the gov-

ernment of public affairs (status rei publicae). And since reciprocity char-acterizes the kind of reason that is fundamentally public, the originalposition is nothing other than a model of the reason in virtue of which polit-ical society attains stability (ratio status rei publicae). That by reason ofwhich public affairs are governed in Rawls is neither the common goodnor the security of the community, as it was in the medieval theories ofratio publicae utilitatis that sought to establish princely regimes. It is thestatus that each citizen obtains in a republic in virtue of being capable of

managing their own affairs (sui juris), that is, in Rawls terms, the statusof being politically or fully autonomous. To have sui juris status meanstwo things in the vocabulary of the later Rawls: first, to be considered byall as capable of participating on equal terms in the construction of princi-ples of justice that apply to all;87 and, second, to be considered by all as thelast judge of the goodness of anything for oneself.88

Through its political, constituent power, a people recognizes the sui jurisstatus of its citizens and establishes the priority of this status with respect

to the state in and through the political constitution that it gives to theirpolitical association.89 This simply means that sui juris status is made goodthrough the application on the part of the basic structure of the politicalsociety of the principles of justice (equal claim to a scheme of equal rights,and the unequal distribution of honors must be open to all and it mustfavour the least advantaged).90 From the point of view of public reason, therights and honors that are recognized and applied by the basic structureexist to empower the citizens in such a way that each can see in the otheran equal source of right or justice (in Rawls,jus is always a question ofsuijuris).91 In Rawlss political liberalism, the state exists by reason of asociety that is thoroughly politicala society whose basic structure isintended to allow individuals to achieve the full autonomy of citizens. Inthe later Rawls, the state is no longer what grants political unity to society.I take this to be his radical response to the fact of oppression, an oppres-sion that originates when legitimate state power is used to impose politicalunity on a society based on the consensus of a majority of citizens to onereasonable comprehensive doctrine.

In my reading of Rawlss political liberalism, the principles of justice area common good in the sense that they grant a form of libertythe statusof being sui juriswhich is possible to enjoy only in a politicized society.Such a society is politicized not because the state can interfere in everyoneslife whenever it so desires, but precisely for the opposite reason: because the




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state must confront and justify itself before the power of the people. Theequal moral value of the individual in Rawls is not a primordial moral

fact but a consequence of the politically constructed sui juris status:

We say: everyone is equally capable of understanding and complying withthe public conception of justice; therefore all are capable of honoring theprinciples of justice and of being full participants in social cooperationthroughout their lives. On this basis, all view themselves as equally worthyof being represented in any procedure that is to determine the principles of

justice that are to regulate the basic institutions of their society. This con-ception of equal worth is founded on the equally sufficient capacity (which

I assume to be realized) to understand and to act from the public conceptionof social cooperation.92

Because the political or public reason for a political society is the exerciseof the capacity or power that each citizen has of being sui juris, an equalsource of right, justice can exist neither in the isolated individual (forexample, in the form of negative liberty) nor in the public person (forexample, in the form of legitimate state authority). Justice exists in the pro-cedure itself which publicly represents all individuals as citizens in an equalmanner, as equal members of a people, that is, of an association based onfair terms of cooperation.93 The proper response to Barrys objection that apolitical conception of justice is unnecessary once justice is tied to thereasonableness of individuals is that, for Rawls, such reasonableness isinseparable from the recognition by others of the individuals status of par-taking equally in the government of public affairs. Either reasonableness ispolitical, or it is not.

Additional evidence for this reading is contained, in nuce, in Rawls

strikingly republican assertion according to which the good in justice asfairness is that of the good of political society.94 In other words, it is notonly as an instrument of justice that political society, and eventually theduly constituted state, is a good for the people as a whole. More funda-mentally, the principles of justice exist to constitute a society that is politi-cal because it is composed of equal and free citizens. In that sense, the aimof justice is completely political. Thus, citizens form a political society thatis a good for them not only because such a society is instrumental to the

pursuit of their individual interests (their conceptions of the good), butmore importantly, because the political society applies justice even whenthis application goes against the best (most rational) interests of individu-als. In brief, the good of political society is the good of being a citizen ofthat society; and the good of being citizens is the good of being recognized




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by all others as free and equal. There is no such mutual recognition with-out the political society because this mutual recognition is achievable only

through the basic structure securing the equal rights of all (this is the rea-son for the state). But, at the same time, there can be no well-ordered statewithout mutual recognition between citizens. Here, political society tran-scends the reason for the state, the political is separate from the state, andthe political does not have the state as its immanent telos. Through thismutual or public recognition, the basic needs of the people are taken intoaccount and thus the stability of the society (status regni) is secured with-out having to assign to the government (status regis) a superior right to the

one belonging to the status of all citizens.95

The good of justice is nothingless than the good of constituting a political society understood as a peoplecomposed ofsui juris citizens. However, this is very close to, if not identi-cal with, the well understood republican conception of political society.96

If this reading of the primary sense of public reason in the later Rawls iscorrect, then what is the public reason ofthe state according to his account?The state, and all citizens who participate in politics by seeking office orsupporting those who do, must justify their actions before the entire body

of citizens and try to show that the laws and measures they advocate pro-tect the sui juris power or status of the citizens. The state ought to have aninstitution, for instance a Supreme Court charged with judicial review,where this reason of the state is publicly articulated.97 Only under this con-dition of protection are citizens obligated to obey the norms and measuresof the state.98 In Rawls, just as in Schmitt, one finds the tacit use of theHobbesian formulaprotego ergo obligo to understand the legitimacy of thestate. Some interpreters have remarked on the possible affinity betweenRawlss understanding of the political and Hobbess idea of public reason.99

In the latter, the institution of the sovereign, through the consent of all,authorizes one person to decide the content of the reasonable faith (thatis, the content of public reason) in a neutral manner with respect to the reli-gious convictions at war with each other. Hobbess solution postulates anidentity between the will of the sovereign and public reason. This allowshim to situate liberty of conscience as a purely private matter, of indifferentvalue to the state.

I understand Rawlss idea of public reason as a critique of Hobbess solu-

tion. By giving the use of public reason over to the sovereign, Hobbes pre-vents the people from having access to or even formulate the reasons of thestate. But this move, on Rawlss account, deprives the state of the source ofits proper legitimacy, with the consequence that more instability is gener-ated. In this respect, when Rawls, in a very un-Hobbesian and un-Schmittian




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manner, defends the public discussion of revolutionary intentions,100 hispoint seems to be that the stability of a political society requires that the

legitimacy of the state be considered by all citizens as secondary withrespect to the source of all state legitimation (i.e., the power of the people),

just as a constituted power ought to be secondary to a constituent power.101

The people need to maintain their constituent power in relation to the state,for any other less critical and more credulous stance on their part gives thestate an incentive to make its reasons less than completely public. Followingwhat Kant postulates in Towards Perpetual Peace with regard to the inverserelation that obtains between publicity and war, a decline in the power of

the people can make the state more willing to engage in wars that the publicwould have never consented to in the first place, leading to instability.Following the same rationale, the public reason of the state must demon-strate that it is disposed to defend the power of the people even when theapplication of the principles of justice may go against the best interestsof some individuals. In so doing, the state demonstrates that its public rea-son is superior to the reason of private individuals.

As I have argued at length, in the original position, there is already a

public reason not only because the representatives must rationally chooseprinciples of justice for their constituents and these must also be such thatother representatives can consent to them, but because the original position,as the later Rawls models it, constitutes the power of the people in thesense that it is constitutive of the status of being sui juris, which character-izes the politically autonomous citizen. If this is true, then the good of polit-ical society in its most basic sense is not the good of the state, but the goodof having citizens endowed with the right to be superior to the state. In thissense, Rawlss original position as a device of representation correspondsto Kants republican principle of representation, intended to separate thepower of the people from the sovereignty of the state, assigning to the for-mer superiority over the latter.102

Likewise, the original position and its public use of reason corresponds toKants famous advocacy for a public use of reason in An Answer to theQuestion: What is Enlightenment? In relation to the original, medieval ideaofratio publicae utilitatis, Kant maintains the first sense of the termthereason for the utility of an office to society as a wholebut uncouples it from

the reason of the public official. He thereby denies that the public officialsuse of reason has a public character, and allows the reading public at large toparticipate in the discussion of what is of public utility.103 This understandingof public reason in Kant corresponds to the first maxim of reflective judgmentin section 40 of the Critique of Judgment: to think for oneself (rather than rely




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on the opinion of an authority). Kants subversive move, compared with themedieval tradition of public reason, consists of questioning the sovereign

state as the embodiment of the public, thus questioning the states claim thatit is the highest representative of societys good.104

Several features of the medieval model of full powers (plena potestas)can be identified in Rawlss idea of the original position as a device of rep-resentation. In Rawls, for instance, the goal is to make a final, substantivedecision or judgment on the fair terms of political association: procedureaims at just decisions to which participants in the process have given theirconsent ex ante, analogous to the idea of full powers in the medieval kingly

court.105

In the medieval court it was only and always representatives of thepeople, and not the people itself, who could argue on matters of ultimatejurisdiction. Similarly, in Rawls, the interests of the individual are repre-sented by the rational, moral power granted to her representative who,much like a lawyer in court, seeks to defend the best interests of his or herconstituent. In the Rawlsian original position, just like in the medievalkingly court, what is at stake are the principles of justice that will governthe basic structure that affects everyone, and is therefore an affair of

everyone (quod omnes tangit), calling on their right to participation.But in Rawls, of course, there is a crucial departure from the premises ofthe medieval understanding of full powers and political representation,namely, the idea of a veil of ignorance behind which the rational repre-sentatives find themselves. This departure corresponds to his adherence toKants subversion of the medieval idea of public reason. Public reason here,at the most primordial level, stands for the outcome of a decision procedurewhereby rational representatives are placed in a situation that constrainsthem to be reasonable. This constrains them to adopt what Kant calls, in theCritique of Judgment, the second maxim of reflective judgment: theenlarged mentality that comes by putting oneself in thought in the place ofthe other.

The idea of a veil of ignorance in Rawlss device of representation is dia-metrically opposed to Schmitts device of representation. For Rawls, therational representatives are not, taken by themselves, reasonable, and thereis no final judge or highest tribunal presiding over the give and take of rea-sons between the representatives. This means that, for Rawls, justice has no

personal representative; justice cannot be impersonated. Rawlss originalposition communicates to all citizens equally that no public office and, a for-tiori, no public official represents justice because justice consists in thosefair terms of their association whose application, by the basic structure of theassociation, generates at once their power and their right. Thus, in a first




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moment, the representation achieved through the original position gives thesuperior right to the public reason that is constitutive of citizens.

In a second moment, this power of the citizens as sui juris becomes theconstituent power of a people, which is intended to give these citizens theirpolitical constitution through another device of representation, namely, thatof a constitutional convention.106 The constituent power of a people decidesthe kind of state and its powers that are most likely to apply the principlesof justice (i.e., grant stability) and thus protect the good of political society.The draft of any such political constitution must always be brought back fordiscussion and approval to all citizens. This return of the representative to

the citizen for further consultation corresponds to the idea of a referendum.Here the distinction that Rawls makes between the points of view of fullyautonomous citizens and that of ourselvesof you and me who are elab-orating justice as fairness and examining it as a conception of political jus-tice,enters into play. This is because no matter what the body ofautonomous citizens decides with regard to the fair terms of social cooper-ation that they choose to adopt, for Rawls, the final decision as to the worthof a political conception of justice depends on the possibility of its stand-

ing in reflective equilibrium with our more firm considered convictions ofpolitical justice.107 This possibility corresponds to the adoption of Kantsthird maxim of reflective judgment in the Critique of Judgment: to stand inagreement with oneself. Once again, Rawls employment of the originalconcepts composing the idea of due process, namely, full powers and quodomnes tangit, occurs in a context that is determined by Kants subversionof the medieval idea of public reason: the third maxim of reflective judg-ment standing for the possibility of a referendum as an essential componentof political representation. Originally, the idea of giving full powers to therepresentatives was designed to avoid the need for referenda, or at leastkeep it under control as much as possible, in the interest of preserving theintegrity of the sovereigns final judgment.

In a third moment of Rawlss argument on representation, which corre-sponds to the public reason of the state, one finds yet another device of rep-resentation: an institution of the state such as a Supreme Court, which is tostand as an exemplar of public reason in the sense that such a court mustcommunicate to all citizens the possibility that they ought to act as judges

of the government.108 Both the court and the ordinary citizen, as a matter oftheir duty of civility,109 should check whether the laws and measures ofthe state correspond to the principles of justice that would have been cho-sen by sui iuris citizens as modelled in the original position (i.e., not in anordinary, but in an extraordinary situation), and ratified in the form of a




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constitution by the people qua constituent power represented in a constitu-tional convention.

In sum, in Rawls, just like in Schmitt, there is a clear distinction betweenan extraordinary legislation that corresponds to the first two moments ofrepresentation, and an ordinary legislation that corresponds to the thirdmoment of representation. Similarly, as in Schmitt, Rawls asserts that theextraordinary is always superior to the ordinary. But what is extraordinaryin Rawls is not the authority of the sovereigns judgment, as much as thepower of every ordinary citizens judgment in so far as he or she is recog-nized by all others as an equal and free member of a revolutionary, con-

stituent people.Rawlss idea of public reason has been criticized for allegedly beinginsufficiently open or tolerant with respect to public or democratic deliber-ation and for falling short of the kind of communicative rationality that onecan find in the wider sense of the public sphere.110 In recent times, thedebate about public reason has focused on the degree to which it should orshould not be open to religious reasons; whether letting such reasons intopublic political deliberation encourages or discourages oppression.111 Without

wishing to engage this debate here, it is undeniable that these discussionsare symptomatic of the worry that the idea of public reason is compromisedwith the reasons of sovereignty, and thus with the imposition of silence onreligious voices in the sphere of public right.

In spite of the fact that neither Rawls nor Schmitt are Platonists when itcomes to political philosophy, their use of the idea of public reason remainswithin the domain of an identity between the strongest reason and thereason of the strongest which, as Derrida has recently argued, is estab-lished in the Western philosophical tradition through Platos arguments forthe necessity of having philosophers as kings.112 This identity can be foundat work in both Rawls and Schmitt in the sense that for both public reasonneeds to be a reason that will meet with the reflected (not aggregate) agree-ment or support of the most citizens (thereby generating more knowledgeand more power for the people). Furthermore, in both of their conceptionsthis public reason grants the state, as representative of political society, thesuperior right in relation to the rights of private individuals and groups.

But if the strongest reason in the main tradition of Western political

theory tends to be the reason of the strongest (in this case, the public rea-son of the legitimate state), then the reasons of the weakest will also appearin the political public sphere as weak reasons. By definition, these rea-sons never rest at the basis of public right, of political justice. This is notonly because they are the reasons of the powerless, but also because they




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are viewed as minoritarian or immature reasons, reasons not sufficientlyenlightened to obtain the assent of a possible majority. There is a sense

in which the very idea of public reason, rather than providing the essentialresponse to the fact of oppression, may be instrumental in preserving it.

Conclusion:Is Public Reason the Reason of the Strongest?

I do not think that the Schmittian link between public reason and sover-

eignty has any answer to this kind of worry. Schmitt always took the side oforder against anarchy, and of homogeneity against singularity. Conversely,from the beginning of his work, Rawls takes seriously the problem posed bythe repression or exclusion of minoritarian reasons for the stability of a polit-ical association, as shown by his frequent discussions of civil disobedienceand the right to voice extreme forms of dissent to government policies. Hislast attempt at a response to this problem is contained within the provisothat supplements his idea of public reason. Given the idea of public reason

as formulated through reasons that one could give to each other in a recip-rocal fashion and in a situation of non-domination, the proviso states thatpublic reason can also be composed of what I have been calling weak rea-sons formulated in a situation of domination, provided that these can even-tually be reformulated in terms of strong reasons, that is, reformulated interms that can be adopted by public right.113 In other words, the reasons ofthe weak and of the oppressed, which have always given ground for dis-obeying the state, must be granted a place within public reason and not sim-ply tolerated within the larger, non-political public culture provided they canbe seen, in the present, as applications of the principles of justice of citizensand, in the future, translated into the reasons of the state.

Rawls proviso indicates that the idea of public reason needs a supple-mentary moment of self-reflection, which could bring it to acknowledgethat its single-minded adherence to the strongest reasons may be its tragicweakness. The single-minded pursuit of the strongest reasons, and theirachieving a superior right, signals an absolutization of the dimension oflegitimacy within the political which may, in the long run, be a source of

instability for the political association. The proviso of the later Rawls canbe interpreted as an application to a wider conception of the public sphereof his notion that public reason is the form taken by the principle of tolera-tion when this is applied to philosophy itself.114 But I suspect that if Rawlsproviso is only taken to express the application of the principle of toleration




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back on to the idea of public reason itself, then this kind of reading of theproviso will not suffice to provide the idea of public reason with the kind

of self-reflexivity it needs to acknowledge the paradoxical weakness of thestrongest reasons.

By way of conclusion, I would like to suggest another avenue, to be pur-sued more systematically in future work, which would lead to the uncou-pling of public reason from sovereignty. As mentioned above, Rawlsassociates his idea of public reason with Kants discussion of the public useof reason in What is Enlightenment? Kant reassigns the use of reason fromits location in a public office, complete with the finality proper to that

office, to hand it over to any citizen who could make use of his or her rea-son publicly yet not in virtue of occupying any office (ex officio) and with-out a predetermined finality. It follows that the public use of reason mustnot only be composed of the reasons that the state gives to legitimate itsgood for political society in general, but must legitimate before thepeople the good of the state. The public use of reason should also be ause of reason that leads to a public judgment (or public opinion) that is con-stitutive of a people or political society, in the moment when the purposes

of the state are out of play. This would be a use of reason for the sake of apolitical judgment that interrupts the functioning of relations of legitimaterule. Thus, the question of how to conceive of a public reason that wouldbring together the strongest reasons (the political) and the reasons of theweak (the anarchical), can now be rephrased as follows: Is there a criticaland public use of reason other than its sovereign use, the latter being ause through which the practice of rule or government is linked as a neces-sary component of the good of political society? That is, is there a use ofreason other than that which is intended to motivate the obedience ofsubjects to their legitimate political order?

In the Kantian corpus there seems to be a public use of reason whose goalis the critique of obedience (and which, therefore, goes beyond the famousexhortation to argue all you like, but obey! ofWhat is Enlightenment?).However, such a public use of reason is in reality the use of reason made bythe faculty of reflective judgment, which is significantly opposed, in Kant,to the use of reason on the part of determinant judgment in the faculties ofpure and practical reason. To date, the Rawlsian idea of public reason seems

to have been modelled more on the idea of a critique of pure reason. But ifthis idea is to be uncoupled from and opposed to the logics of sovereignty,then it would appear a more promising path for public reason to modelitself on the Kantian idea of a critique of judgment.115 In the former senseof critique, all metaphysical claims stand in judgment before a tribunal of




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reason established on the basis of a partition between the sensible and theintelligible that is intended to filter through the strongest reasons and place

the principle of reason itself on a secure footing.116 But the use of reasonon the part of the power of judgment, when employed reflectively, func-tions without finality and makes possible something like a critique of thecritique (of pure and practical reason), that is, a partition of the sensiblethat does not find in the principles of pure or practical reason its definitivecriterion.

Whenever reflective judgment makes use of the ideas of reason, it makespossible judgments that are the product of a heightened self-reflexivity such

that they no longer count as mere vehicles for the application of first princi-ples, but rather are judgments whose peculiar autonomy from the facultiesof pure and practical reason turn on their capacity to interrupt just this kindof application. They are judgments, in short, that question the sovereignty ofreason, and thereby undermine the identity between the strongest reasonsand the reasons of the strongest. Such an interruption of sovereignty is thecondition of possibility for the emergence of an order without law, a spaceof no-rule, where a public can constitute itself through agreement on judg-

ments whichbecause they are radically disinterestedcan never be fullytranslatable into the terms of a states public reason. Thereby, they are judg-ments which preserve the critical disjunction (krinein) between a peopleand its government that characterizes Kants conception of republican-ism. Such a republican modality of the public use of reason would distin-guish the strength and the weakness of reasons no longer on the stageafforded by the sovereign tribunal of reason, but on a different stage, one thatpermits the recollection of the claims of justice of those members of societywhose modality of participation in that society as a collaborative endeavourhas been imposed on them, i.e., of those members of society who are unrep-resentable according to the devices of representation offered by the basicstructures of society. This new idea of public reason would allow us to addressthe oppression that is generated by political rationalism itself.

Notes

1. For some examples of such critiques cf. Bonnie Honig, Political Theory and the

Displacement of Politics (Ithaca: Cornell University Press, 1993); Jeremy Waldron,Law andDisagreement (New York: Oxford University Press, 1999); Jeremy Valentine and BenjaminArditi, Polemicization: The Contingency of the Commonplace (New York: New York UniversityPress, 1999); William Connolly, Why I Am Not a Secularist (Minneapolis: University ofMinnesota Press, 2000) and Sheldon Wolin, Politics and Vision: Continuity and Innovation inWestern Political Thought(Princeton: Princeton University Press, 2004), 538-50.




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2. Cf. Chantal Mouffe, Deliberative Democracy or Agonistic Pluralism, Social Research66, 3 (1999):745-58, and Chantal Mouffe, The Return of the Political (London: Verso, 2006).

3. On how matters stand between Rawls and Schmitt viewed from a Rawlsian perspec-tive, cf. Charles Larmore, The Morals of Modernity (Cambridge: Cambridge University Press,1996). For a brief but elegant presentation of the received reading of the reasonable in Rawls,and for the kind of criticism that defenders of deliberative democracy address to Rawlss ideaof public reason, cf. Rainer Forst, The Rule of Reasons. Three Models of DeliberativeDemocracy,Ratio Juris 14, 4 (2001):345-78.

4. Carl Schmitt,Der Begriff des Politischen (Berlin: Duncker & Humblot, 2002), 20 andJohn Rawls, Political Liberalism (New York: Columbia University Press, 1996), 374. For adetailed analysis of the senses in which Rawls distinguishes the political from politics, andfor a critical discussion of the readings of Rawls as anti-political thinker, cf. Roberto

Alejandro, What is Political About Rawlss Political Liberalism? The Journal of Politics 58,1 (1996):1-24.5. On the idea of contested concepts, cf. William Connolly, The Terms of Political

Discourse (Princeton: Princeton University Press, 1993).6. On Schmitts relation to liberalism, with all of its ambiguities, cf. John McCormick,

Carl Schmitts Critique of Liberalism (Cambridge: Cambridge University Press, 1997);Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong State, Free Economy(Cardiff: University of Wales Press, 1998); and Carlo Galli, Carl Schmitts Antiliberalism: ItsTheoretical and Historical Sources and Its Philosophical and Political Meaning, Cardozo Law

Review 21 (1999):1597-1617.

7. Rawls, Political Liberalism, 13.8. Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press,1996), 30.

9. Rawls, Political Liberalism, 5, 35.10. Cf. Raymond Geuss, History and Illusion in Politics (Cambridge: Cambridge

University Press, 2001) for an argument on the importance of genealogy when one does theanalysis of political concepts.

11. For recent treatments of Schmitts jurisprudence, but contextualized mostly in refer-ence to his immediate predecessors or contemporaries, cf. David Dyzenhaus, Legality and

Legitimacy (New York: Oxford University Press, 1997); William E. Scheuerman, Carl

Schmitt: The End of Law (Lanham, MD: Rowman and Littlefield, 1999); Jeffrey Seitzer,Comparative History and Legal Theory: Carl Schmitt in the First German Democracy(London: Greenwood Press, 2001); and Duncan Kelly, The State of the Political: Conceptionsof Politics and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann(Oxford: Oxford University Press, 2003). On Schmitts reception in the English-speakingworld, cf. Peter Caldwell, Controversies over Carl Schmitt: A Review of Recent Literature,The Journal of Modern History 77 (2005):357-87.

12. Cf. Brian Barry, Culture and Equality (Cambridge: Harvard University Press, 2001),331 n.27 who dismisses the turn to the political in the later Rawls: Rawls has by now aban-doned most of the ideas that madeA Theory of Justice worthwhile. I have no interest in defend-

ing anything Rawls has written since about 1975, including his subsequent interpretations ofA Theory of Justice or his revisions of its text. Rawlss current position, embodied in The Lawof Peoples, amounts to a rather muddled version of Michael Walzers anti-Enlightenment par-ticularism. But even Larmore, in his presentation and defence of political liberalism, hardlytouches on the idea of the political in Rawls. He chooses to present political liberalism startingfrom the idea of neutrality; giving to the idea of neutrality a moral rather than a political




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meaning (Larmore, The Morals of Modernity, 125-32). For a view defending the importanceand novelty ofPolitical Liberalism in comparison toA Theory of Justice, cf. Burton Dreben,

On Rawls and Political Liberalism, in The Cambridge Companion to Rawls, ed. SamuelFreeman (Cambridge: Cambridge University Press, 2003), who argues that Rawls therebyintended to address the question of whether the notion of a constitutional liberal democracyis internally consistent (Dreben, On Rawls and Political Liberalism, 319, 322).

13. Cf. Bernard Manin, On Legitimacy and Political Deliberation, Political Theory 15, 3(1987):338-68, for an example of applying in an abstract way the distinction between deliber-ation and decision to Rawls. Paradoxically, Manin ends up associating Rawls both to Rousseauand to decisionism. Cf. Bonnie Honig, Between Decision and Deliberation: Political Paradoxin Democratic Theory, American Political Science Review 101, 1 (2007):1-18 for anotherreturn to Rousseau to displace altogether the opposition between decision and deliberation.

14. Brian Barry, John Rawls and the Search for Stability, Ethics 105 (1995):874-915.15. Ibid., 883-85.16. Ibid., 890.17. Rawls, Political Liberalism, xvii-xx.18. Ibid., 257-68.19. Cf. John Rawls,A Theory of Justice (Cambridge: Harvard University Press, 1999), 24,

where Rawls understands his project as a critique of utilitarian thought and its erasure of thepoint of view of the other: utilitarianism adopts for society as a whole the principle of ratio-nal choice for one man. . . . Utilitarianism does not take seriously the distinction between per-sons. For the priority of the other in Schmitt, see the definition of the political as the

distinction of friend and enemy denotes the utmost degree of intensity of a union or a separa-tion, of an association or dissociation (Schmitt, The Concept of the Political, 26). Cf. CarlSchmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947(Milan:Adelphi, 1993), 92 onthe Hegelian theme of Der Feind ist unsre eigene Frage als Gestalt, commented upon atlength by Jacques Derrida, Politics of Friendship (London: Verso, 1997) and Heinrich Meier,

Die Lehre Carl Schmitts: Vier Kapitel zur Unterscheidung politischer Theologie und politis-cher Philosophie (Stuttgart: J.B. Metzler, 1994).

20. Cf. Quentin Skinner, Visions of Politics. Volume 3: Hobbes and Civil Science(Cambridge: Cambridge University Press, 2002), 119, 134-40, for a discussion of the problemof application in Hobbes and for Hobbess reliance on the idea of public reason to resolve it.

21. For another discussion of this crucial point, cf. Jody S. Kraus, Political Liberalism andTruth,Legal Theory 5 (1999):45-73.

22. Cf. Schmitt, The Concept of the Political, 53; John Rawls, Collected Papers (Cambridge:Harvard University Press, 1999), 329; Rawls, Political Liberalism, 54-59. What they under-stand under pluralism, and the conditions that make it necessary for modern democracies to bepluralist, is of course different in both authors. Schmitt has no equivalent theory to Rawlssburdens of judgment that accounts for the fact of reasonable pluralism.

23. Cf. Rawls, Collected Papers, 411, 425; Schmitt, The Concept of the Political, 43.24. Both Rawls and Schmitt address the pluralists of their time (primarily Isaiah Berlin for

Rawls, and Harold Laski for Schmitt). Cf. William E. Connolly, Pluralism (Durham: Duke

University Press, 2005) for an updated discussion of the conflict between pluralism and sov-ereignty from a pluralistic perspective that is equally at odds with Rawls and with Schmitt.

25. Cf. Rawls, Collected Papers, 427-29 and Rawls, Political Liberalism, 392. I discuss inwhat sense one can speak of right reasons in Schmitt below.

26. On the public nature of such ultimate political judgments, cf. Carl Schmitt, The Crisis ofParliamentary Democracy (Cambridge: MIT Press, 2001), 56; Rawls, Collected Papers, 324-25.




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27. On the people, cf. Schmitt, The Crisis of Parliamentary Democracy, 16; Schmitt, TheConcept of the Political, 19; and Rawls, Political Liberalism, 68, where political power . . .

is the power of the public, that is, the power of free and equal citizens as a collective body.28. Cf. Rawls, Political Liberalism, 29 n. 31; Rawls, Collected Papers, 394-95, 434-37;Schmitt, The Crisis of Parliamentary Democracy, 42-43, 64-68; Carl Schmitt,Der Leviathanin der Staatslehre des Thomas Hobbes (Stuttgart: Klett-Cotta, 1982), 66-68, 82.

29. Rawls says that the condition of publicity essential to the idea of public reason meansthat a well-ordered society does not require an ideology in order to achieve stability, under-standing ideology (in Marxs sense) as some form of false consciousness or delusory schemeof public benefits (Rawls, Collected Papers, 326).

30. Cf. Rawls, Political Liberalism, 37; Dreben, On Rawls and Political Liberalism, 319;Kraus, Political Liberalism and Truth, 48-49.

31. Cf. Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947, 59. In Rawls theequivalent rejection of a metaphysical foundation of justice is expressed in various ways. Forinstance, when he claims that the absence of commitment to these ideals [of autonomy andindividuality], and indeed to any particular comprehensive ideal, is essential to liberalism as apolitical doctrine (Rawls, Collected Papers, 409). But also: Those who reject constitutionaldemocracy with its criterion of reciprocity will of course reject the very idea of public reason.For them the political relation may be that of friend or foe, to those of a particular religious orsecular community or those who are not; or it may be a relentless struggle to win the worldfor the whole truth. Political liberalism does not engage those who think this way. The zeal toembody the whole truth in politics is incompatible with an idea of public reason that belongs

with democratic citizenship (Rawls, Collected Papers, 574). As I shall discuss below, Schmittwould not have disagreed with this citation, to the contrary. This is, in fact, the meaning of themotto that he appropriates in Ex Captivitate Salus: silete, theologi, in munere alieno! (Schmitt,Ex Captivitate Salus. Esperienze degli anni 1945-1947, 72). The theologians who have tokeep silent in the domain of public right or political justice are, to employ Rawlss words, rep-resentative of those who struggle to win the world for the whole truth.

32. Cf. Rawls, Collected Papers, 574, where he says that the political relation is con-tained in the idea of public reason. In turn, the idea of public reason is internally related to theidea of legitimacy (Rawls, Political Liberalism, 217ff.).

33. Cf. Gaines Post, Studies in Medieval Legal Thought: Public Law and the State 1100-

1322 (Princeton: Princeton University Press, 1964), 112. For the early history of the idea ofpublic reason I shall rely on the results of two decades of research into late medieval politicalthought conducted by Gaines Post during the 1940s and 1950s and republished in book formin the early 1960s. Due to lack of space, I cannot enter into the details of the heated debate,which in many ways climaxes during those decades, concerning the relation between politicaltheory and jurisprudence in medieval thought and its significance for modernity. In the Anglo-American world, this debate begins with the reception of Gierkes work starting with Figgis,through McIlwain, Kantorowicz

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