In a liberal democracy, it is generally held that the legitimacy of a sovereign’s coercive action (viz. laws) is justified insofar as the sovereign meets some condition: popular examples include the harm principle, public justification, or rules nobody could reasonably reject.[1] Whatever the justificatory standards are, notions of arbitrariness are often appealed to and have regulative roles. For instance, arbitrariness can be used as a heuristic or test for what is primitively (morally) acceptable – Rawls takes this route and employs arbitrariness as a meta-theoretical test for justifying the original position and veil of ignorance (which in turn justify his requirements of justice).[2] Another more intuitive example is the role of arbitrariness in regulating reasoning – the judge, in deciding two identical cases, should not be affected by arbitrary factors like political leanings or an empty stomach. In bringing together the ideas of a sovereign’s coercive actions and notions of arbitrariness, the question becomes one about the rights of the citizen and what she is owed in virtue of her equal status.[3] If we take the view that everybody deserves, at minimum, equal concern and respect, then arbitrary laws fail to show equal concern and respect because it illegitimately coerces them.

Public Justification

A closer look at the relationship between sovereign and citizen is crucial for a legal-political conception of arbitrariness, particularly insofar as non-arbitrariness is a requirement for the exercise of political power. Such views begin with a familiar Kantian starting point: the priority of the dignity of persons. In virtue of this special status, everybody is owed equal treatment which must be expressed in the basic structures of society. Rawls[4] champions this view as “political liberalism” and sparks a vast discussion on public justification. The basic idea is that political power is always coercive power, and this coercion must be justified if we are to take seriously the idea that persons deserve equal respect.[5]

One obvious coercive political power is the imposition of laws. If a law is to be publicly justified, then the subjects of the coercive laws must have good or sufficient reason to endorse the law (this is sometimes referred to in the literature as “public reason liberalism”). Public reasons are the kinds of reasons[6] that can be shared by all citizens. For Rawls, this is achieved by an overlapping consensus, that is, reasonable citizens can endorse a political conception of justice (a part from their own comprehensive doctrines) and debate only using these shared views. For example, a Christian’s reasons to worship God are clearly not public reasons, yet the Christian’s reasons to endorse the view that public office should be open to all can be public reasons and consistent with her Christian doctrine. Both the legislature and judiciary ought to appeal to public reasons – and not their own non-public reasons – with respect to laws in order for the law’s coercive power over citizens to be justified.[7]

Democracy and Equality

It is important to emphasize that public justification does not simply mean the will of the legislative majority. In virtue of fundamental rights tied to equal standing and respect, those in the minority and lacking political power are still protected from being at the mercy of the legislative majority. Christiano[8] explores these questions of the moral underpinnings of democracy and liberal rights. Collective decisions through a democratic process have authority over us, but it is not clear how this is justified or how it relates to the “liberal rights”[9] that structure a constitution. For example, the political will of the legislature must abide by principles of democracy and the rights held by both the minority and the majority, but such normative principles, according to Christiano, are “vague and unsystematic.”[10] Thus, Christiano develops an account of democracy as “public equality” in decision-making.

The idea is intuitive: the unifying principle of a just society is that “all can see that they are being treated as equals.”[11] All coercive authority is justified on these grounds (as well as its limits), and what follows from this is that even those in the minority must be treated in a “publicly clear [way] as persons whose well-being matters and whose well-being matters equally.”[12] In other words, everybody has equal standing in collection decisions or else the authority is illegitimate.[13] Christiano’s justificatory tool is the “egalitarian standpoint of publicity,” which is supposed to make clear the facts of “diversity, disagreement, fallibility, and cognitive bias and the interests in being able to correct for others’ cognitive biases…”[14] This closely resembles Adam Smith’s impartial spectator, but it is focused on achieving equalities of interests.[15]

The Rights of Minority Views

At this point, some limits for the public reason liberals should be brought to the fore. Wolterstorff[16] has two particularly convincing arguments. The first is widely discussed: the premises of public reasons liberals are highly idealized. They assume reasons for rational agents in ideal states of affairs can adequately ground the justificatory standards for non-idealized agents. Wolterstorff argues that this is patronizing and fails to show due respect for persons.

A second, and more unique, criticism is that public reason liberals arbitrarily give more weight to secular reasons over religious reasons. Recall that a Christian’s reasons to worship God are by definition non-public reasons, so the Christian cannot invoke such reasons in public discourse. Wolterstorff remains unconvinced that the Christian must set aside their Christian reasons and instead only appeal to public reasons. This seems to privilege some conception of the good (or compressive doctrine) over another – namely, a secular conception of the good. What is striking here is that what is being purported as state neutrality is really an arbitrary favoring of a particular way of life. 

In a society containing a plurality of views, liberal neutrality[17] goes hand in hand with non-arbitrariness. Den Otter[18] investigates this by exploring the topic through a sustained analysis of polygamy (or “plural marriage”) with respect to (American) constitutional rights. Behind all this, there is a general notion of liberal neutrality which, in the face of pluralism, does not privilege one conception of the good over another (this is one of the facets of public justification).[19] From this, we can derive a right – that is publicly justified on terms others can reasonably accept – to choose our own conception of the good.[20]

In a pluralistic society, it might be easy to see how same-sex marriage can be justified as a right on constitutional grounds, and, according to Den Otter, the same justifications must also apply to polygamy.[21] American history had similar socio-political motivations for antipolygamy sentiments, particularly against Mormon groups and specious justifications of harm to families (e.g. failing to parse polygyny from polyamory, failing to account for the empirical data of alleged harms, presupposing as deviant or unacceptable, etc.).[22] All things equal, given current views on marriage, it would be arbitrary to exclude polygamous marriage.

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[1] J Quong, Liberalism without Perfection (Oxford: Oxford University Press, 2011).

[2] J Rawls, A Theory of Justice, 2nd ed (Massachusetts: Harvard University Press, 1971).

[3] Charles Taylor, “Hegel’s Ambiguous Legacy for Modern Liberalism” (1989) 10: 5-6 Cardozo L Rev 857.

[4] J Rawls, Political Liberalism (New York City: Columbia University Press, 1993).

[5] Charles Larmore, “The Moral Basis of Political Liberalism” (1999) 96: 12 The Journal of Philosophy 599.

[6] “Reasons” are simply consideration for favoring something. See T Scanlon, What We Owe to Each Other, (Massachusetts: Harvard University Press, 1998).

[7] R Den Otter, Judicial Review in an Age of Moral Pluralism (Cambridge: Cambridge University Press, 2012).

[8] T Christiano, The Constitution of Equality: Democratic Authority and Its Limits (Oxford: Oxford University Press, 2010).

[9] Ibid at 132-190.

[10] Ibid at 1.

[11] Ibid at 2.

[12] Ibid at 5.

[13] For an account of political authority, see ibid at 232-260.

[14] Ibid at 89.

[15] B Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995).

[16] N Wolterstorff, Understanding Liberal Democracy: Essays in Political Philosophy (Oxford: Oxford University Press, 2016).

[17] Will Kymlicka, “Liberal Individualism and Liberal Neutrality” (1989) 99:4 Ethics 883.

[18] R Den Otter, In Defense of Plural Marriage (Cambridge: Cambridge University Press, 2015).

[19] Ibid at 281-284.

[20] For an analysis of fundamental rights relating to polygamy, see ibid at 176-205.

[21] For an equality-based analysis, see ibid at 244-272.

[22] For an analysis on the argument from gender inequality, see ibid at 65-122; and, for further arguments from child welfare, administrative considerations, and appeals to tradition/nature, see ibid at 123-174.