Liberalism and Catholicism in the Public Square

Robert P. George
Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions, Princeton University
12/01/2005

Introduction

A contest of worldviews in our time pits devout Catholics, Protestants, Jews, and other believers against secularists and those who, while remaining within the religious denominations, have adopted secularist ideas about personal and political morality.  The contest manifests itself above all in disputes over “life issues,” such as abortion and infanticide, cloning and embryo-destructive research, and physician-assisted suicide and euthanasia, as well as issues pertaining to sex, marriage, and family life.  Underlying these specific conflicts are profound differences regarding the source and nature of morality and the proper relationship of moral judgment to law and public policy.

I am hardly the first to recognize the existence of this conflict of worldviews.  People on both sides of the divide have noticed it, commented on it, and proposed ideas about how an essentially democratically constituted polity ought to come to terms with it.  The trouble, of course, is that the issues dividing the two camps are of such profound moral significance—on either side’s account—that merely procedural solutions are not good enough.  That is to say, neither side will be happy to agree on decision procedures for resolving the key differences of opinion at the level of public policy where the procedures do not guarantee victory for the substantive policies they favor.  This is not a matter of people being irrationally stubborn or hung up on a desire to win.  Rather, it reflects the considered judgment of people on both sides that fundamental and therefore non-negotiable issues of justice are at stake.

I propose to explore the work of two eminent political philosophers who have taken the measure of the problem and proposed terms of engagement which, they believe, can be affirmed by reasonable people across the spectrum of opinion in the great cultural struggle that I have described as the clash of orthodoxies.  Both single out Catholicism as an example of a non-liberal comprehensive doctrine that may nevertheless affirm essentially liberal terms of engagement with competing comprehensive doctrines—including liberalism, considered as a comprehensive doctrine—so long as those terms of engagement do not require anyone, including Catholics, to accept substantive liberal ideas about human nature, dignity, and destiny.  J?rgen Habermas, in Europe, and the late John Rawls, in the United States, have towered over academic political philosophy for several decades.  Both are self-consciously secular thinkers, working in a discipline dominated by self-consciously secular scholars, and significantly shaped by secularist assumptions.  Now, you will have noticed my shift in the previous sentence from describing Habermas, Rawls, and other political theorists as self-consciously “secular,” to describing the assumptions that shape their discipline as “secularist.”  Although some contemporary political theorists (Richard Rorty, for example) would be happy to accept the term “secularist” as describing their own views and the dominant assumptions of their discipline, many would not.  I suspect that Habermas and Rawls would be among those resisting the term.  They would insist that though their political theories are secular, inasmuch as they appeal to no theological principles or religious authority, and, indeed, reject such appeals as inappropriate to the discipline of political theory in the context of democratic pluralism, they are not secularist.  Indeed, they would argue that one needn’t be a secular person, much less a secularist, in order reasonably to endorse their teachings.  There is plenty of room, they would say, for religious people of various stripes to affirm the secular principles and norms that they argue should govern political life in contemporary pluralistic democratic societies.  Indeed, their goal is to identify principles and norms that can reasonably be accepted by believers and unbelievers alike, and affirmed by people irrespective of their convictions on “religious” questions pertaining to human nature, dignity, and destiny.

From a Catholic vantage point, there is nothing startling or troubling about the quest to identify moral and political principles that can reasonably be affirmed even without appeal to theological claims or religious authority.  That’s one description, accurate so far as it goes, of the enterprise Catholics (and others) know as “natural law theory.”  But there is something deeply alien to Catholic thought about separating inquiry into moral and political principles from questions pertaining to human nature, dignity, and destiny.  While Catholics can accept the description of such questions as “religious” in a certain sense, they cannot accept them as “religious” in any sense that suggests that they are in principle opaque to rational inquiry or off limits to moral and political philosophy as such.  On the contrary, moral and political philosophy is, in very significant measure, an inquiry into human nature, dignity, and destiny.[1]  It necessarily proceeds from an effort to understand the basic goods of human nature and the implications for matters of personal and political action of the integral directiveness of these basic human goods.  This effort, to the extent of its success, sheds profound light on the intrinsic worth or value—the dignity—of the human person and on what, in reason, men and women are called upon to do and to avoid doing in light of the dignity of the human person.  Of course, from the Catholic viewpoint, philosophy itself (“unaided reason”) cannot disclose all that men and women can and should know about the moral life and its meaning; but it can accomplish what secular writers such as Habermas and Rawls seek to accomplish.  It can provide an accurate understanding of the moral principles and norms that should govern political life in the concrete circumstances particular societies.[2]

Inasmuch as Habermas and Rawls propose theories of political morality that purport to prescind from basic questions of human nature, dignity, and destiny, there appears to be a fundamental incompatibility between their proposals and the Catholic approach to moral and political theory.  But this in itself is a problem for Habermas and Rawls.  Both men offer theories that reasonable people of diverse faiths, including Catholics, are supposed to be able to endorse without compromising their faith.  And for both, it is particularly important that Catholics in particular can endorse their theories.  It is not merely that Catholicism is the world’s (and particularly the western world’s) largest religion.  Even more important is the fact that modern Catholicism affirms and even promotes liberal democracy as a political ideal.  Pope John Paul II repeatedly praised democracy, describing it as the political system most consistent with both man’s as a rational creature and the principle of the equality in dignity of all human beings.  Since the Second Vatican Council, popes and other Catholic officials have regularly preached the obligation of governments to respect and protect human rights, including the freedom of religion.  While the Church does not rule out as in principle unacceptable state-established religions (such as exist in democratic nations such as Great Britain and Israel), it does not promote them, even where Catholicism is the dominant faith, and it strictly demands respect for religious liberty, even where they exist.  Given these “liberal” dimensions of Catholic social and political teaching, it would be particularly awkward for Rawls or Habermas if Catholics could not, in good conscience, affirm their political theories.  Indeed, the inability of these theories to accommodate Catholics, if proven, would invite the suspicion that there is something distinctly sectarian about them.  It would suggest that the theories are not merely secular, but in truth secularist.

Public Reason and Liberal Legitimacy

In his profoundly influential 1971 book A Theory of Justice, Rawls defended a “liberal” conception of justice, which he called "justice as fairness," whose basic principles for a well-ordered society were identified as those that would be chosen by free and equal persons in what he called "the original position."  Parties in "the original position" select principles of justice in a state of ignorance regarding their personal moral and religious convictions, social and economic status, and related factors that will distinguish them from many of their fellow citizens when they emerge from behind "the veil of ignorance" to live in a society governed in accordance with the principles they had selected.

In 1993, Rawls published a new book, Political Liberalism, which amends certain features of the theory he had advanced in 1971.  Most importantly, Rawls conceded that the argument for "justice as fairness" as adumbrated in A Theory of Justice relied on a premise which was inconsistent with the theory itself, namely, the belief that "in the well-ordered society of justice as fairness, citizens hold the same comprehensive doctrine, and this includes aspects of Kant's comprehensive liberalism, to which the principles of justice as fairness might belong."[3]  By a “comprehensive doctrine,” Rawls means something like a worldview—an integrated set of moral beliefs and commitments reflecting a still more fundamental understanding of human nature, dignity, and destiny.  Rawls’s self-identified problem with the position he had adopted in A Theory of Justice is that liberalism, considered a "comprehensive" (as opposed to a merely "political") doctrine, is not held by citizens generally in contemporary pluralistic societies.  Liberalism considered as such—plainly a secularist view—competes in such societies with Catholicism, as well as with various forms of Protestantism and Judaism, and with other religious and secular comprehensive doctrines.  Indeed, liberalism considered as a comprehensive doctrine is plainly a minority view in the United States.  Most Americans reject secularism of any type, including secularist liberalism.  In any event, Rawls’s revised understanding is that a plurality of comprehensive views, religious and secularist, is natural and unavoidable in the circumstances of political freedom that characterize constitutional democratic regimes.  Political theorizing that accepts the legitimacy of such regimes must begin, therefore, by acknowledging what Rawls calls "the fact of reasonable pluralism."    

Recognition of "the fact of reasonable pluralism," according to Rawls, rules out the possibility of legitimately defending principles of justice for constitutional democratic regimes by appealing to comprehensive doctrines—including comprehensive forms of liberalism.  To appeal to comprehensive liberalism, Rawls concedes, would be no less sectarian than to appeal to Catholicism or Judaism.  Some alternative must, therefore, be found.  Otherwise, the social stability of such regimes would be in constant jeopardy.  Everything would depend on the capacity and willingness of people with fundamentally different moral views—including radically different conceptions of justice and human rights—to reach and preserve a modus vivendi.  The alternative Rawls proposes is "political liberalism."  Its ideal is that "citizens are to conduct their public political discussions of constitutional essentials and matters of basic justice within the framework of what each sincerely regards as a reasonable political conception of justice, a conception that expresses political values that others as free and equal also might reasonably be expected to endorse."[4]

In such a framework, "deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime."[5]  Where constitutional essentials and matters of basic justice are at issue, public discussion and debate must be conducted—for moral reasons and not as a mere modus vivendi—in terms of a "strictly political conception of justice,"[6] and not in terms of moral doctrines of justice associated with the various comprehensive views about which reasonable people disagree.  The common affirmation of a "political conception" by adherents of competing comprehensive views enables them to participate in what Rawls refers to as "an overlapping consensus" on basic principles of justice.  It is this consensus that makes social stability in the face of moral pluralism not only possible, but possible "for the right reasons."[7]

The core of "political liberalism" is the idea that whenever constitutional essentials and matters of basic justice are at stake political actors, including citizens as voters and insofar as they engage in public advocacy of candidates and causes, must refrain from acting on the basis of principles drawn from their comprehensive views (as liberals, Catholics, communists, or whatever) except to the extent that "public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support."[8]  Thus, citizens are constrained from appealing to and acting upon beliefs drawn from their most fundamental moral understandings and commitments precisely at the most fundamental political level, viz., the level of constitutional essentials and matters of basic justice.  And they are so constrained on grounds entirely separate from the putative falsity, unreasonableness, or unsoundness of those understandings and commitments or the beliefs drawn therefrom.[9] 

Rawls insists that "political liberalism is not a form of Enlightenment liberalism, that is, a comprehensive liberal and often secular doctrine founded on reason and suitable for the modern age now that the religious authority of Christian ages is said to be no longer dominant."[10]  It is, rather,

a political conception of political justice for a constitutional democratic regime that a plurality of reasonable doctrines, both religious and nonreligious, liberal and nonliberal, may freely endorse, and so freely live by and come to understand its virtues.  Emphatically, it does not aim to replace comprehensive doctrines, religious or nonreligious, but intends to be equally distinct from both and, it hopes, acceptable to both.[11]

"Political liberalism" aspires, then, to be impartial with respect to the viewpoints represented by the various reasonable comprehensive doctrines that compete for the allegiance of citizens.  It "does not attack or criticize any reasonable [comprehensive] view."[12]  Rawls says that "rather than confronting religious and nonliberal doctrines with a comprehensive liberal philosophical doctrine, the thought is to formulate a liberal political conception that those nonliberal doctrines might be able to endorse."[13]  Hence, the crucial idea of an "overlapping consensus" among comprehensive views which, inasmuch as they accept the fundaments of constitutional democracy, are "reasonable."

So "political liberalism" is a doctrine that is not just for liberals.  If Rawls is correct, not only proponents of Kant's or Mill's liberalism, but also faithful Catholics, evangelical Protestants, and observant Jews—assuming the reasonableness of Catholicism, Protestantism, and Judaism (something Rawls suggests he is willing to assume)—ought to be able to join the "overlapping consensus" by reasonably embracing "political liberalism" without compromising their basic religious and moral convictions.[14]

Although Rawls observes that a mere political compromise or modus vivendi might, under propitious circumstances, develop into an "overlapping consensus," he carefully distinguishes an "overlapping consensus" from a mere modus vivendi.  Unlike a modus vivendi, an "overlapping consensus" is constituted by a certain level of moral agreement about what constitute fair terms of social cooperation among people who, being reasonable, view each other as free and equal citizens.  So, although Rawls presents the liberal "political conception" of justice as standing independent of any particular comprehensive doctrine (in that sense it is, he says, a "freestanding" conception), it is nevertheless a moral conception, containing "its own intrinsic normative and moral ideal."[15]

Rawls maintains that terms of cooperation offered by citizens to their fellow citizens are fair only insofar as "citizens offering them [] reasonably think that those citizens to whom such terms are offered might also reasonably accept them."[16]  This "criterion of reciprocity" is the core of what Rawls labels "the liberal principle of legitimacy," viz., that "our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may be expected to endorse in the light of principles and ideals acceptable to their common human reason."[17]  When, and only when, political power is exercised in accordance with such a constitution do political actors--including voters--maintain fidelity to the ideal of "public reason." 

Political Liberalism. Catholicism, and Natural Law

The "liberal principle of legitimacy" and ideal of "public reason" exclude as illegitimate in political discourse and in the exercise of public authority, at least insofar as basic matters of justice—including constitutional rights—are concerned, appeal to principles and propositions drawn from comprehensive doctrines even though they are, or may well be, true.  It would be one thing to argue that in certain circumstances prudence requires such an exclusion, at least temporarily, as part of a modus vivendi.  It is quite another thing, however, to claim, as Rawls does, that such an exclusion is morally required by virtue of "the fact of reasonable pluralism" even in circumstances in which people are not restrained by prudence from acting on principles they reasonably believe to be true, and which are not ruled out as reasons for political action by their reasonable comprehensive doctrines of justice and political morality].  So, we must examine the justification Rawls offers for this exclusion.  [To that end, let us consider what Rawls has in mind in demanding, as a matter of reciprocity, that citizens offer to their fellow citizens with whom they disagree about basic moral, metaphysical, and religious matters terms of social cooperation, which they reasonably think their fellow citizens may reasonably accept.

If Rawls's "criterion of reciprocity" and "liberal principle of legitimacy" are interpreted narrowly, then citizens offering terms of cooperation to their fellow citizens who happen to disagree with them about a matter in dispute must merely think that they are presenting to their fellow citizens sound reasons, accessible to them as reasonable people of goodwill, for changing their minds.  The scope of "public reason" under this narrow interpretation of reciprocity and legitimacy would be wide.  It would, to be sure, rule out as illegitimate claims based on the allegedly "secret knowledge" of a Gnostic elite or the putative truths revealed only to a select few and not accessible to reasonable persons as such, but it would not exclude any principle or proposition, however controversial, that is put forward for acceptance on the basis of rational argumentation.

Now, even on this narrow interpretation, some religious believers would object that their views would be unfairly excluded from public political discourse.  Others, however, would have no objection to a principle of reciprocity, which demands only that they offer "public reasons" in this very wide sense.  They would have no interest in restraining the liberty of their fellow citizens, or in disfavoring them or their preferred ways of life or modes of behavior, on the basis of claims they could not defend by rational argumentation.  They would accept the claim that do so would be unfair.  It seems clear, however, that Rawls himself cannot accept the narrow interpretation of reciprocity and the correspondingly very wide conception of public reason.  His goal, after all, is to limit the range of morally acceptable doctrines of political morality in circumstances of moral pluralism to a single doctrine:  viz., "political liberalism."  The very wide conception of public reason simply will not accomplish that goal.  It will not, for example, rule out appeals to principles and propositions drawn from comprehensive forms of liberalism.  More importantly, it will not exclude appeals to principles and propositions drawn from nonliberal comprehensive doctrines, which content themselves with appeals to "our common human reason."

Notable among such doctrines is the broad tradition of natural law thinking about morality, justice, and human rights.  This tradition poses an especially interesting problem for Rawls's theory of public reason because of its integration into Catholic teaching.  So it is, at once, a nonliberal comprehensive philosophical doctrine and part of a larger religious tradition which, in effect, proposes its own principle of public reason, viz., that questions of law and policy (including what Rawls has in mind when he refers to "constitutional essentials and matters of basic justice") ought to be decided in accordance with natural law, natural right, natural rights, and/or natural justice (where, as in Aquinas's natural law theory, something is good, or right or just "by nature" insofar as it is reasonable).[18]

If Rawls is to successfully defend a conception of "public reason" narrow enough to exclude appeals to natural law theory, he must show that there is something unfair about such appeals.  And he must, of course, demonstrate this unfairness without appeal to comprehensive liberalism or any other comprehensive conception of justice that competes with the natural law conception.  In other words, he must avoid smuggling into the defense of his claim that "only a political conception of justice ... can serve as a basis of public reason and justification"[19] principles or propositions which are themselves in dispute among adherents to reasonable comprehensive doctrines (including, of course, Catholicism and natural law theory).  This, it seems to me, he has not done and, I believe, cannot do.

Rawls does not explicitly address the claims of natural law theorists—Catholic or otherwise.  He seems, however, to have their beliefs in mind in his critique of what he calls "rationalist believers who contend that [their] beliefs are open to and can be fully established by reason."[20]  Rawls's argument against the so-called "rationalist believers" rests entirely on the claim that they unreasonably deny "the fact of reasonable pluralism."  But do they?  I am myself something of a "rationalist believer," at least according to Rawls's definition, and I certainly do not deny the fact that people in our culture, including reasonable people, disagree about fundamental moral questions, including questions pertaining to homosexuality, abortion, physician assisted suicide, and the recreational use of drugs.  Nor do I deny that some measure of moral disagreement—though not necessarily moral disagreement on the scale of what we find today in the United States, for example—is inevitable under circumstances of political and religious liberty.  So I do not see how Rawls can justify his claim that "rationalist believers" deny "the fact of reasonable pluralism."

Rawls own methodological and moral commitments require him to avoid denying the soundness, reasonableness, or truth of the reasonable, if controversial, moral, metaphysical, and religious claims that his "political" conception of justice would exclude from political discourse and as grounds for political action.  So he cannot rule out the views of natural law theorists or "rationalist believers" on issues such as homosexuality, abortion, euthanasia, and drugs on the grounds that their views are unsound, unreasonable, or false.  If he is reduced to arguing for the unsoundness, unreasonableness, or falsity of these views, then his "political liberalism" will have collapsed into "comprehensive liberalism."  And we are left with the conflict of comprehensive views to which "political liberalism" is meant to provide an alternative.

Understandably, then, Rawls seeks to avoid engaging the specific claims and arguments of the "rationalist believers."  He limits himself to a simple denial that their claims "can be publicly and fully established by reason."[21]  But how can this denial be sustained independently of some engagement "on the merits" with the specific arguments they advance in their public political advocacy—arguments which Rawls's idea of "public reason" is meant to exclude in advance without the need to address their soundness and reasonableness or the truth or falsity of the principles and propositions in support of which they are offered?

It will not do for Rawls to claim that he is not denying the truth of "rationalist believer's" claims but merely their assertion that these claims can be publicly and fully established by reason.  What makes a "rationalist believer" a "rationalist" is precisely his belief that his principles can be justified by rational argument and his willingness to provide just such rational argumentation.  The arguments he offers by way of justifying his principles and their applications to specific political issues will either be sound or unsound.  If they are sound, then Rawls can give no reason for excluding the principles they vindicate on the ground that they are illegitimate reasons for political action; if they are unsound, then they ought to be rejected precisely on that basis, and not because the principles in support of which they are offered are, in Rawls's sense, "nonpublic.”

Let us return, though, to Rawls's claim that "rationalist believers" deny "the fact of reasonable pluralism."  He states that "[i]t is unrealistic—or worse, it arouses mutual suspicion and hostility—to suppose that all our differences are rooted in ignorance and perversity, or else in the rivalries for power, status, and economic gain."[22]  Catholics and other natural law theorists do not deny this.  Indeed, they recognize that differences of opinion and commitment often arise from factors which reason does not control, matters of taste and sentiment, for example.  Moreover, matters can sometimes be rationally underdetermined even where reason guides reflection by excluding as unreasonable certain possibilities, but leaving more than one possibility open and, in that sense, rationally available.  On some issues, there are a variety of unreasonable opinions, but no uniquely reasonable or correct one.

Catholics and other natural law theorists maintain, however, that on certain other issues, including certain fundamental moral and political issues, there are uniquely correct answers.  The question whether there is a human right against being enslaved, for example, or being punished for one's religious beliefs, admits of a uniquely correct answer that is available in principle to every rational person.  Pro-life advocates assert that there is similarly a human right against deliberate feticide and other forms of direct killing of innocent human beings, irrespective of raze, ethnicity, and sex, but also irrespective of disability, age, size, location, stage of development, or condition of dependency.  Differences over such issues as slavery, religious freedom, abortion, and euthanasia may be "reasonable" in the sense that reasonable persons can err in their judgments and arrive at morally incorrect positions.  But, assuming there is a truth of these matters—something Rawls cannot deny and, one would think, has no desire to deny—errors of reason must be responsible for anyone's failure to arrive at the morally correct positions.  There are many possible roots of such errors, not all of which involve culpability or subjective guilt on the part of individuals who make them.  Ignorance of, or inattention to, certain relevant facts or values may be the source of a particular error.  Prejudice or other subrational influences—which may be pervasive in a culture or subculture making it difficult for any of its individual members to reason well about certain issues—may block insights that are critical to sound moral judgments.  And, of course, logical failures or other errors in the reasoning process can deflect judgment in the moral field as they can in all other fields of inquiry.  Nothing in the position of natural law theorists (or "rationalist believers") entails the proposition that we can always easily arrive at correct moral positions or that we will not sometimes (perhaps often) get things wrong.

Is anything in their view unreasonable?  Rawls certainly cannot declare their view unreasonable because they maintain that on certain morally-charged and highly disputed political questions—including questions of human rights—there are uniquely morally correct answers.  The fact that "reasonable people" can be found on competing sides of such questions in no way implies that the competing views are equally reasonable.  Reasonable people can be wrong—as Rawls himself implicitly acknowledges in his claims against the "rationalist believers" who are, after all, reasonable people even if their claim that their beliefs can be fully and publicly justified by reason is unreasonable.  There is simply no unreasonableness in maintaining that otherwise reasonable people can be less than fully reasonable (sometimes culpably, other times not) in their judgments of particular issues.[23]

In A Theory of Justice, Rawls identified the two basic principles of "justice as fairness" by the method of "political constructivism" which asked what substantive principles would be chosen by parties in the "original position" behind the "veil of ignorance" which hides from them (among other things) what Rawls now calls their "comprehensive views."  In a key passage of Political Liberalism, he says that the "liberal principle of legitimacy" and the ideal of "public reason" have "the same basis as the substantive principles of justice."[24]  It seems to me, however, that this basis was, and remains, insecure.  Over more than thirty years, Rawls and his followers have failed to provide any reason to suppose that "perfectionist" principles—principles of justice or political morality more generally drawn from "comprehensive views" about what is humanly valuable and morally upright—which would not be selected under conditions of artificial ignorance by the unnaturally risk-averse parties in the "original position" are unjust (or cannot be valid principles or justice).  Rawlsians seem to suppose that from the proposition that principles which would be selected by such parties under such conditions are just (i.e., involve no injustice), it follows that perfectionist principles—which might very well be chosen by reasonable and well-informed persons outside the original position—are unjust.  Non sequitur.

The “Ethics of Discourse,” Public Reason, and Abortion

Central to Habermas’s political thought is a distinction between “morality” and “ethics.”  As John Finnis has observed, in Habermas’s work, this distinction “has much the same role as Rawls’s untenable distinction between ‘comprehensive doctrines’ and ‘public reasons.’”[25]  The distinction, in Habermas’s case, is part of what he calls an “ethics of discourse” which “adopts the intersubjective approach of pragmatism and conceives of practical discourse as a public practice of shared reciprocal perspective taking:  each individual finds himself compelled to adopt the perspective of everyone else in order to test whether a proposed regulation is also acceptable from the perspective of every other person’s understanding of himself and the world.”[26]  “Ethics,” on this account, has to do with “how one sees oneself and who one would like to become,” while “morality” has to do with the proper concern for “the interests of all.”[27]  Political theory is fundamentally concerned, then, with “morality,” not “ethics.”  And fundamental questions of the nature, dignity, and destiny of the human person are putatively excluded from the realm of political theory precisely because they are “ethical,” not “moral.”

According to Habermas,

Ethical questions point in a different direction from moral questions:  the regulation of interpersonal conflicts of action resulting from opposed interests in not yet an issue.  Whether I would like to be someone who in case of acute need would be willing to defraud an anonymous insurance company just this one time is not a moral question, for it concerns my self-respect and possibly the respect that others show me, but not equal respect for all, and hence not the symmetrical respect that everyone should accord the integrity of all other persons.[28]

Finnis has put his finger on the problem here.  “The compatibility of self-respect with this dealing with the insurance company cannot . . . be rationally assessed without making ‘moral’ judgments about the conditions on which property rights are justly respected and justly overridden, and about the injustice of fraud, and so forth.”[29]  But if that is true, the distinction itself begins to collapse.

Worse still, Habermas employs the distinction in a way that implicitly answers the question much disputed in our culture of who is to count as within the “all” whose interests must be taken into account in making “moral” judgments, while purporting lay aside the evaluation of certain types of homicide as merely “ethical.”  Writing in a law review symposium devoted to his work in legal and political theory, Habermas raised the questions of abortion and euthanasia as cases involving “ethical” judgment and not “morality.”[30]  Of course, the claim of faithful Catholics and other pro-life citizens is that just law will protect the lives of the unborn and physically and mentally frail or disabled precisely because justice requires respect for the fundamental interests of “all.”  No human being may be excluded from the community of the commonly protected on the basis of age, size, stage of development, disability, condition of dependency, or any other of the grounds upon which supporters of abortion and euthanasia seek to exclude some human beings in order to justify these practices.  The “discourse” into which Catholics and other pro-life people invite their fellow citizens is precisely a discourse about the reasonableness or unreasonableness of such exclusion.  People on the pro-life side offer rational grounds—public reasons—for protecting the unborn and the disabled from being killed.  They offer to show that the exclusion of the unborn and the disabled from the protections of the law is arbitrary and, as such, unjust.

Habermas, however, expressly speaking of “Catholics, for instance,” suggests that pro-life citizens are bound as a matter of morality to accept legal abortion and euthanasia precisely because these are “ethical” questions—concerned with what is the best way to live, and, presumably, not “moral” questions—concerned with the interests of all.  Indeed, he implies that “morality” requires this abstention by pro-life citizens from acting on the basis of their “ethical” judgments, not because these judgments are in any way unsound, untrue, or unreasonable, but because they are “ethical.”  The abstention is required, in other words, by a due regard for “the interests of all.”  Yet, on what ground are the interests of the unborn or the severely disabled to be excluded from consideration?  If the question of who is to count as within the “all” whose interests must be taken into consideration is an “ethical” question, then it is clear that “moral” questions depend on “ethical” judgments—judgments regarding the nature and dignity of the human person—that cannot be avoided or relegated to the domain of the private.

As it happens, there is in Rawls’s later work an almost exact parallel to Habermas’s error on this point.  In Political Liberalism, Rawls raises the issue of abortion in a now famous footnote.  Indeed, it is the one concrete contemporary political issue Rawls uses to illustrate application of his doctrine of “public reason.”  He asserted, “as an illustration,” that “any reasonable balancing” of the “political” values of (1) respect for human life, (2) “the ordered reproduction of political society over time,” and (3) women’s equality, would “give a woman a duly qualified right to decide whether or not to end her pregnancy during the first trimester,” and perhaps beyond.[31]  For the law to protect the life of the human being in the early stages of development would be to impose, according to Rawls, a “comprehensive doctrine” in defiance of the strictures of political liberalism.  Like Habermas, Rawls offers no argument as to why the developing human being should or even may be excluded from the laws protection on the basis of age, size, stage of development, or condition of dependency.  He does not offer reasons to rebut those “secular” (i.e., scientific and philosophical) arguments and fully “public” reasons offered in defense of the rights of the unborn by pro-life citizens—Catholic and non-Catholic alike.  (In the end, as Rawls himself later acknowledged, he merely expressed an opinion, not an argument.[32])  Also like Habermas, he eventually gets round to addressing “Catholics” as such on the issue.  There is, however, an ambiguity in what he says.  It is unclear whether he is insisting, as he seemed to be in the original footnote, that a sound application of the doctrine of public reason excludes laws prohibiting abortion early (and perhaps even later) in pregnancy, and, thus, excludes advocacy of such laws as contrary to public reason, or merely requires that those who advocate such laws abide by a democratic resolution of the issue, even if it goes against them.  Here is what he says:

Some may, of course, reject a decision, as Catholics may reject a decision to grant a right to abortion.  They may present an argument in public reason for denying it and fail to win a majority.  But they need not exercise the right of abortion in their own case.  They can recognize the right as belonging to legitimate law and therefore do not resist it with force.  To do that would be unreasonable:  it would mean their attempting to impose their own comprehensive doctrine, which a majority of their fellow citizens who follow public reason do not accept.  Certainly Catholics may, in line with public reason, continue to argue against the right of abortion.  That the Church’s nonpublic reason requires its members to follow its doctrine is perfectly consistent with their honoring public reason.[33]

Even if interpreted generously as granting that advocacy of the strict prohibition of abortion can be consistent with public reason, Rawls’s admonition to Catholics here is problematic.  Plenty of American Catholics and others, most of whom reject resort to violence to protect the unborn from the injustice of abortion, reasonably refuse to recognize the right to abortion as “belonging to legitimate law.”  Rather, they believe that any law recognizing a right to abortion is so gravely unjust as to be illegitimate in principle.  As such, any law of this type should be opposed resolutely by people who understand its grave injustice.[34]  As Finnis observes,

the argument of [pro-life] citizens is that the killings whose legalization Rawls and Habermas defend are a radical basic injustice imposed on people deprived or to be deprived of the protections of citizenship.  The responses(s) suggested by the argumentation of Rawls and Habermas would run something like:  “You free citizens need not exercise the right to [own slaves] [abort your children] in your own case, so you can and must recognize our law as legitimate as it applies to the rest of us (and as we will enforce it against you if you interfere).”  “You people need not do any of this [killing] [slave owning] yourselves, so your integrity is undamaged and so you ought (and will be compelled) to stand aside to allow us, in the exercise of our prior right of coexistence with you, to [‘coexist’ with our slaves] [terminate our coexistence with these unborn children/fetuses and with people whose lives are not worth living.”[35]