Michael vs. Michelman on Legitimate Political Authority

A Note on Foran's Equality Before the Law

The following remarks were delivered at a symposium hosted at the University of Glasgow on 26th January 2024 for Michael Foran’s new book ‘Equality Before the Law’ (Hart Publishing, 2023).

Foran on the Common Good

Michael’s final chapter concerns political authority, political discretion, and a reflection on the proper goals of political life; which, following the Aristotelian-Thomistic tradition he takes to be the common good.

Michael rejects any cynical picture of political life that portrays it as a Schmittian contest for power - that is about rewarding friends and punishing enemies. He also rejects a framing of political life that places the good of the individual and the good of the political community in which she is born, raised, and embedded in antagonistic opposition. Rather, in Aristotelian-Thomistic fashion Michael argues both stand or fall together.

An exclusive focus on the importance of constraining political authority to protect individual freedom or private goods is, for Michael, far too pessimistic a way to view the possibilities of political life. This kind of myopic focus on the harms a political community can inflict, and the tailoring of our legal institutions and doctrines to surmount that concern, can “result in a failure to take seriously the good that can be done by the well-ordered use of legal authority, directed towards the achievement of ends that advance the collective interests of the community as a whole.”

Michael’s picture of politics is ultimately one that is directed towards the “common interests of all, where each person is valued equally.” And he thinks this is only possible if we abandon any “pretence to neutrality as to either political morality or the good life. To be a good custodian is to take an interest in improving the lives of those under one’s charge” and have “some conception of what would constitute an improvement” in peoples lives.

Michael’s vision of the common good is one where the political community helps people to live flourishing lives, enjoying the goods and ways of life that are suitable for us as the kind of rational, political, dependent animals we are. Political authorities should make it commonplace and ordinary for individuals and families to enjoy those goods central to our thorough-going well-being.

Michael also usefully reminds us that the common good is the good of flesh and blood persons living in a community together, not an abstract end goal separate from them. It is a good that can only be maintained through a highly complex web of relationships, transactions, and undertakings, all underpinned not only by law, but also by custom, morality, virtue, and ultimately love.

Because the common good is all about the good of persons and families - not the good of the ‘collective’ or ‘the state’ - the means by which we seek to promote it are, in fact, ones of its constitutive facets. This is why it is incomprehensible in the classical tradition to ask about whether it is permissible to degrade the personhood or equal dignity of a subset of citizens in order to achieve a ‘greater good’ for the rest. The common good is practical reasonableness at full stretch; involving political authorities and citizens willing and acting with a view to integral human fulfillment and flourishing. The means and ends of the common good are equally set by the basic precepts of natural law.

Michael affirms this point again and again when he talks about how political authority should be exercised. He says:

·      Respect for the equal dignity of citizens entails acceptance of the legitimacy of moral disagreement and the need for a framework of constitutional principle which enshrines democratic processes to resolve these disagreements without undermining the commitment to moral equality that justifies those processes in the first place.

·      The obligation to obey the law does not derive from official consensus or the assertion of governmental power. Rather, it is grounded in our political obligations to one another to respect the legitimate processes of resolving these disagreements in a manner which pays due attention to the moral and political equality of persons.

·      Political power must be exercised in a manner which itself respects the moral equality of persons.

Michael vs. Michelman

When I was reading Michael’s book, I also thought about how its arguments both jelled and clashed with another book that I read recently and am currently reviewing, called Constitutional Essentials (Oxford University Press, 2022). The work, by the leading Rawlsian legal scholar Professor Frank Michelman of Harvard Law School, makes the case for operationalizing John Rawls’ framework for political life as set out in Political Liberalism through the means of constitutional law.

Michelman and Michael are motivated by very similar moral impulses in advocating their respective arguments. Both abhor moral relativism or a pessimistic vision of politics as a series of power plays. They want politics to aspire to a communal way of life suitable for free and equal citizens that are alike in dignity, and that want to live together under fair terms of social co-operation.

But trying to fulfill this aspiration takes them both down two very different prescriptive paths.

Following Rawls, Michelman thinks one of the biggest moral problems to be mediated today, is how political power can be legitimately exercised over a populace with wildly different views of the good and true. Why do I have reason to accept a law if it’s based on a view of the good I find abhorrent? For, through your insistence that I obey a law I disagree with for sincere moral reasons, are you not coercing me to live in a way inimical to my conscience and moral power to form and act on a conception of the good? And is this not a moral rational power we all share and which is part of what gives us our common human dignity?

Michelman and Rawls's solution for this problem - their path to making the exercise of political power against dissentients legitimate - is for officials and citizens to relinquish legislation based on a comprehensive view of the good life that is not reasonably acceptable to all reasonable citizens seeking fair terms of social cooperation. Instead, (as is well known) they argue for political argumentation to take place via the articulation of so-called ‘public reasons’, whose justifications for political action can be affirmed by people with different comprehensive views of the good in an overlapping consensus.

Michelman makes the case for ‘Justification-by-Constitution’, which involves citizens, and especially officials, presenting their explanations and justifications for contentious policies and laws to their fellow citizens in a “proceduralistic form”, a species of justification that appeals to interpretations of a constitution whose directives are framed in such a way to be seen as reasonably acceptable by all reasonable citizens. Instead of arguing for and justifying laws in the public sphere based on their compliance with comprehensive doctrines like natural law, Kantian liberalism, precepts of anarcho-capitalism, or the fact they advance the cause of socialism, citizens should argue in terms of the action or policy being compliant with a sincere interpretation of their country’s constitution - its text, principles, values, and precedents - they find compelling. Michelman ventures that this will ensure that political-moral argumentation will revolve around a stabilizing common stock of reasons and justifications, that will be far less divisive in resolving political disputes than appeals to comprehensive doctrines about the good life.

Michelman envisages citizens saying to their fellows who’ve lost in the democratic process – I am paraphrasing here - that “whether you think this particular law is good or bad, it is compliant with our shared Constitution whose terms are basically reasonable to all of us despite our disagreements. So, combined with the moral imperative we all have to maintain social stability and uphold a functioning legal system, this law’s compliance with our Constitution makes it legitimate and reasonable for me to expect you to obey it even if you continue to dislike it.”

This procedural approach to moral argumentation is not motivated by moral relativism but by a serious concern for civic friendship and social stability in conditions where there is deep pluralism about the good. Michelman thinks this strategy is the best way for political life to proceed if we want it to be respectful of free and equal citizens who disagree on the fundamentals of what is just.

Michael’s vision, in contrast, involves the state acting on a comprehensive vision of the good stemming from the natural law tradition, where “law qua law is properly ordered towards the best interests of the governed, duly respectful of their fundamental rights but not aloof to the quality of their lives”. Michael says elsewhere that as “the common good is…the proper end of any juridical order, this will manifest within legal officials a requirement to act as guardians or custodians for the interests of the governed.”

Michael concludes the book by saying: “A legitimate constitutional order is one which strives for the flourishing of all legal subjects, respecting their rights but also taking the flourishing of their lives as a constitutive aspect of its own success.”

In other words, a well-ordered political community will see its job as to work from what it thinks is a good and true account of what makes people genuinely flourish and to try and prudently achieve those conditions, even if that conception of the good is not as a descriptive matter considered reasonable by some, or many citizens. Disagreement over the good is something to be prudently managed on this account, but not something that forms the core strictures on what the state can do.

So, why choose one view over the other? Why prefer the Michaelian or the Michelmanian path? I want to suggest that one reason to prefer Michael’s view is that, unlike Rawls and Michelman’s project, Michael strikes the right balance of realism and utopianism in his picture of political life and its possibilities.

Why do I say this? As I alluded to just now, the constrained and abstracted form of political argumentation that scholars like Michelman want citizens to work from is based around deliberately deflecting debate in the political forum over fundamental questions of justice, away from fulsome moral argument about what is good and true/bad and unjust, and toward arguments embedded in reasonable interpretations of, and appeals, to constitutional law, text, principles, and precedents.

The fundamental problem with this approach is that political liberalism’s vision about what the proper and legitimate conduct of politics looks like will always struggle to satisfy the urge of human beings, as rational political animals, to live according to a picture of life in the polis they think is genuinely true and good. This observation emphatically applies to liberal agents as well – actors like political parties, bureaucracies, legislatures, and the like.

Because whatever the theory of political liberalism, liberal agents in concrete liberal democratic regimes are more likely to favor a comprehensive form of liberalism complete with a substantive theory of the good, one they are keen to instantiate in their community through law and partly using pervasive cultural, reputational, and economic coercion through norm-enforcement.

If you think of any divisive debate of our time, from abortion to euthanasia, to issues around gender identity, they are all conducted in an overwhelmingly comprehensive key, through appeals to intensely contestable claims like the moral centrality and primacy of autonomous choice and self-authorship of one’s life, and not through abstracted and deflected constitutional argumentation citizens think will be reasonable to all.

The most obvious way liberal agents attempt to promote their comprehensive vision of the good is, of course, through statutes, regulations, executive orders, and policy guidelines that strive to address fundamental questions of morality and justice based on deeply controversial values and ideals centered around the primacy of autonomy and individual freedom. But one can also think here of a range of sights now fairly common across liberal democracies: of public buildings and government agency websites decked in flags and adorned in imagery that endorse specific views about gender, human sexuality, and the nature of freedom (that many will find contestable) on nominated days, even weeks, of state endorsed celebration; or the kinds of training/information sessions civil servants or students in public universities are expected to attend, that can encompass the propagation of intensely controversial ideas about identity, race, and what promotes or degrades human dignity; public actors engaging in iconoclasm in respect of things like statues, images, or the names of buildings that are deemed to inflict dignitarian harms; or public lucre being distributed to groups like NGOs, research bodies, or arts councils based on criteria that reflect a very particular moral view of what is true and good.

As much as statutes passed by the legislature, these kinds of conspicuous and quasi-ritualistic activities all send a pedagogical message about what the goals and commitments of the polity should be, and what moral and cultural ideas officials, and by extension, citizens, ought to value and internalize and dislike and reject. The anthropological and metaphysical underpinnings of the moral and cultural ideas liberal agents promote through the force of imperium, dominium, and suasion are frequently hotly contested, disputed, and far from reasonably acceptable to all citizens.

There is little evidence to be found in the programs and practices of contemporary liberal agents (again, think here of actors like politicians and political parties that wield political power as opposed to Rawlsian law professors) that they subscribe to the late Rawlsian notion that raucous, deep-seated, political disagreement on fundamental questions is the major evil to be avoided and mediated by democratic society and its basic political structures.

They are, rather, more concerned with promoting their vision of the good life, irrespective of whether it is considered reasonable by all reasonable citizens. The lack of cognitive contact or practical traction that Michelman and Rawls’ project has with political life – its excess of utopianism – saps it of its capacity to serve as any kind of action guide.

In practice, if not in theory, our political communities still yearn for ways of living according to what their citizens and officials consider to be good and true, without any “pretense to neutrality” as Michael puts it.

Political liberalism’s Achilles heel, argues my friend Professor Vermeule, lies in its incompatibility with the “deepest desires and beliefs of its subjects” and their hunger as rational political animals for the “real as expressed in politics, the hunger to come to grips with the substance” of the good and common good. This hunger emphatically applies as much to liberals as it does to anyone else.

This hunger is an ineradicable facet of the human condition that I think Michael understands very well.

One subtle merit of Michael’s book, then, lies in its implicit realism about the idealism latent within us as rational political animals.