Legal Systems

Previous chapters argue that maintaining a system of social trust in the right way requires that our shared moral rules be publicly justified. This chapter argues that coercive laws are required in order to strengthen a system of social trust by properly incentivizing trustworthy behavior in cases where moral sentiments and moral ostracism alone cannot provide strong enough reason to be trustworthy. Legal coercion can often stabilize moral rules that might otherwise collapse and create new moral rules that would not have otherwise existed. So law can be an efficient means of maintaining a system of trust by providing persons with additional incentives to engage in trustworthy behavior. This is how law is publicly justified, and so how the law acquires its moral authority.

Public Justification

This chapter develops a conception of the public justification of the moral rules that are the object of social trust. The goal is to explain how complying with moral rules and abiding by our personal values and commitments are compatible. When this compatibility relation is established, a system of social trust can sustain itself in the right way by driving appropriately trusting and trustworthy behavior, and motivating holding the untrustworthy accountable. When moral rules are publicly justified, that is, justified for each person by her own lights, the compatibility relation obtains and moral rules can then form the basis for trust and trustworthiness and so sustain a social system with a high degree of justified social trust-moral peace. The chapter explains precisely what is to be justified, the kinds of reasons that constitute public justifications, and how public justification is rooted in moral peace and social trust.

Introduction

This introduction reviews the challenges posed by falling social and political trust and increasing political polarization, especially in the United States. In particular, falling trust and increasing political conflict raises the question of whether political life is invariably a struggle for victory between groups with incompatible goals and principles. The introduction frames the problem in terms of the need to determine which institutional structures can sustain social trust between persons with diverse viewpoints and values. It then outlines the general argument of the book, which is that liberal institutions, political systems marked by extensive, equal constitutional rights and liberties, have the unique capacity to sustain social trust in conflicted times.

Epilogue

THIS BOOK ASKS WHETHER politics under conditions of deep diversity must be institutionalized aggression—war—between opposing groups. As we have seen, a regime of liberal constitutional rights can be publicly justified. It can serve as the basis of social trust and so, over time, form moral peace between persons. In a liberal regime, politics will be a process of public negotiation among persons who profoundly disagree but who are still able to trust one another to act according to their shared moral and political constitutions....

Liberalism Justified

This chapter argues that only broadly liberal institutions can be publicly justified. Some citizens will have sufficient reason to reject nonliberal rights schemas, as well as the constitutional and legal rules that institutionalize those schemas. But because liberal constitutional rights can be publicly justified to a diverse public, these liberal rights can sustain social trust in the right way. Thus, a society that protects liberal rights establishes moral peace and a politics that is not war. This chapter uses a thin veil of ignorance to locate specific classes of publicly justified primary rights. These rights fall into five classes: rights of agency, associational rights, jurisdictional rights, procedural rights, and international rights. The chapter ends by developing an associated conception of social justice and explains how rights should be built into a publicly justified constitution.

Constitutional Choice

The previous chapter argued that a publicly justified legal system must identify and protect a scheme of publicly justified primary rights. But even a rights-protecting legal system needs help in realizing its social functions because we sometimes need to ratify, repeal, or reform the law. Toward this end, chapter 6 develops a three-stage model for how to choose constitutional rules that govern the shape of the law. Constitutional rules are publicly justified under three conditions. They must identify and protect a system of primary rights. They must then manage errors in the imposition of law, minimizing the passage of unjustified law and the failure to pass publicly justified law. Finally, constitutional rules must be self-stabilizing in the sense that they can both maintain themselves in existence despite external shocks from self-interested actors and provide assurance of cooperation to those who usually comply with the laws that constitutional rules produce.

Moral Peace and Social Trust

This chapter explains why moral and political disagreement is pervasive and why there is a need to cooperate with diverse others anyway. It then develops conceptions of trust, social trust, trustworthiness, and moral peace between persons that are required to explain how people who disagree with one another can cooperate. More specifically, the chapter develops an account of social trust as a social relationship that can maintain cooperation between diverse persons while respecting the dignity and worth of all. It also describes a moral peace between diverse persons as a society with a high degree of social trust. Determining which institutions properly sustain moral peace is the aim of the rest of the book.

Primary Rights

The ideas of moral peace, a system of trust, and public justification explain the need for a legal system that corrects and stabilizes moral rules that form the basis for social trust. Legal rules gain authority when they improve upon the system of moral rules. But some of society’s moral commitments merit protection over and above the law by constitutional rules that govern the ratification, reform, and repeal of laws. This chapter develops an account of the most fundamental constraints on justifiable constitutional rules—primary rights. Primary rights are rights that anyone with a rational plan of life would want for herself to pursue her conception of the good and justice, and ones she is willing to extend to others on reciprocal terms. These rights merit moral, legal, and constitutional protection, and begin the process of constitutional choice.

Trust and the Foundations of Public Justification

This chapter explains the great value found in a society where social trust is both high and grounded in the trustworthy behavior of all. It explains how social trust can be freely and respectfully sustained even under conditions of deep viewpoint diversity. Social trust has value in promoting social cooperation, economic development, and relations of love and friendship. But social trust cannot be grounded in recognizing these goods alone, as it must be based in observing the trustworthy behavior of others, and on respect for other persons within a system of trust. Toward this end, the chapter introduces two arguments, the argument from trustworthiness and the argument from accountability, which explain how social trust can be respectfully sustained and why the idea of public justification is essential for sustaining social trust in the right way.