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The Idea of Public Reason and the Reason of State: Schmitt and Rawls on the Political

Author(s): Miguel Vatter


Source: Political Theory, Vol. 36, No. 2 (Apr., 2008), pp. 239-271
Published by: Sage Publications, Inc.
Stable URL: http://www.jstor.org/stable/20452626
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Schmitt and Rawls on the Politica


Miguel Vatter
Pontificia Universidad Cat6lica, Chile

Rawls and Schmitt are often discussed in the literature as if their conceptions
of the political had nothing in common, or even referred to entirely different
phenomena. In this essay, I show how these conceptions share a common space
of reasons, traceable back to the idea of public reason and its development
since the Middle Ages. By analysing the idea of public reason in Rawls and
in Schmitt, as well as its relation to their theories of political representation,
I show in what way Schmitt's concept of the political cannot be divorced from
an idea of justice, while, conversely, Rawls' conception of justice cannot be
divorced from a theory of the political. In that way this paper thematizes the
intemal 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

T he later Rawls argues that liberalism needs to be reconceived as "polit


1 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

Author's Note: Previous drafts of this essay were presented at American Political Science
Association (APSA) (Philadelphia, September 2006), and in the political theory workshops at
Yale University, Hawaii University, and Flensburg University. A preliminary version of this essay
was read at the international conference "Filosoffa de la Democracia," Universidad de los Andes,
Bogota, Colombia (October 2006) and appears now in the conference proceedings as "El con
cepto de la polftica y la raz6n pdblica en Schmitt y Rawls," Filosofta de la Democracia, ed.
Rodolfo Arango (Bogota: 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 from
the American Council of Learned Societies helped support the research into Schmitt and
medieval 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 for
their editorial suggestions.

239

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240 Political Theory

the conditions of democratic pluralism. Rawls's "political" liberalism has


been frequently criticized for suggesting a normative idea of politics, which
considers only the possibility of deep-seated consensus instead of radical
antagonism, rational deliberation instead of political decision, and justice
instead of power.' Relying on the "concept of the political" as famously the
orized by Carl Schmitt, some critics of the later Rawls have questioned
whether his use of the term "political" for his liberalism is justified since,
on their reading of the Schmittian conception, the political refers to a level
of social conflict that is irreducible to the project of establishing a stable
political order.2 Likewise, the defenders of Rawls' turn towards the politi
cal see in his conception something completely opposed to Schmitt's. They
understand the term as a synonym for "the reasonable," that is, as a univer
sally shared faculty or moral sense of justice aimed at seeking "neutral"
normative conditions around which everyone could come to stand in agree
ment, thereby reaching not only a peaceful cohabitation but also a just
society.3 In this way, critics and defenders of Rawls and Schmitt both deny
that the other's theory is "political" or that it has anything important to say
about "the political."
The above way of framing the disagreement between Rawls and Schmitt,
curiously enough, appears not to take into account the surprising coincidence
in the terminology employed by the two philosophers. By speaking about the
"concept of the political" and the "category of the political," they both grant
central importance to this concept or category in their theories concerning the
creation of a stable social order.4 This begs the question: Is the use of the term
"the political" on the part of such different thinkers merely a case of
homonymy, such that in reality, Schmitt and Rawls would be referring to
completely 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 concept"5?
In this essay I propose a third possibility on how to think of the difference
between 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 presupposes
a shared space of reasons, a common discourse, within which they stake out
opposing positions. In particular, their common space of reasons is populated
by 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 Rawls's and Schmitt's theo
rizations of public reason in the 20th century. Without wishing to deny that
Schmitt is an anti-liberal thinker6 or that Rawls identifies himself as a liberal
philosopher, I shall argue that the fundamental disagreement between them

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Vatter / Public Reason and the Reason of State 241

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 in
the public political culture of a democratic society."7 Thus, he argues that the
public use of reason should draw its terms and arguments from this kind
of political culture. However, Schmitt argues that the political is unavoidable
precisely because the "public political culture" of Western democracies is
traversed by an irreconcilable conflict between the ideas of democracy and
liberalism, of equality and liberty. For him, the public use of reason should
always consider the polemical nature of these fundamental ideas and decide
which side to take.8 Rawls, for his part, writes Political Liberalism partially
to create a standpoint from which this conflict need not be understood as
unavoidable and irreconcilable, paving a way for the public use of reason to
have the power to reconcile the fundamental tensions running through modern
democratic 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, may
explicate the fundamental reasons for this kind of dispute.10
Until now, much of the English literature on Schmitt has presented his
discourse on the political without giving due consideration to how it fits
together with his conception of justice and jurisprudence.11 In contrast,
much of the literature on the later Rawls has downplayed the significance
of 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 Schmitt
and in the later Rawls indicate that neither thinker believes in an abstract
opposition of justice and power, deliberation and decision, or consensus
and disagreement when it comes to theorizing the foundations of legitimate
political order.'3

The Problem of Stability as a


Problem of Application

In an influential critical essay on the development of Rawls' thought after


A 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 his
first book's treatment of "the problem of stability" than by a reaction against
communitarian critiques of his theory.'4 Barry argues that if Rawls is correct

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242 Political Theory

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 Rawls
in A Theory of Justice, then it follows that reasonable people will choose to
apply the principles of justice for their own sake, not because they suppos
edly "overlap" with the reasonable "comprehensive views" of what others
hold to be good or moral.'5 According to Barry, this way of looking at
Rawls's conception of justice resolves the "problem of stability" without
having 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 be
"legitimately" coerced into doing so.'6
Barry is surely right to point out that in Political Liberalism, Rawls is
trying to address a perceived failure with the last two chapters of A Theory
of Justice, which deal with the motivation to apply principles of justice.'7 I
disagree with Barry on his understanding of what is ultimately at stake with
the problem of stability. As Rawls says, the principles of justice apply to the
"basic structure" of a society.'8 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, then
this 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 different
matter of the legitimacy of the institutions that apply these principles, on
the other. Evidently, the problem of stability or legitimacy, cannot be
answered by "applying the principles of justice" without raising several
questions. This is because the stability or legitimacy of political and social
order is the condition of possibility of such an application.
The common reference to a category or concept of "the political" in the
later Rawls and in Schmitt is not coincidental: both give a "political" frame
work to their concepts of justice (in the sense of jus or principle of justice, not
in the sense of lex or legal norm) to resolve the problem of stability or legiti
macy. The latter becomes problematic for them, in the first place, because
they both presuppose that what is politically right or just (contrary to what is
ethically good) necessarily denotes a relation between the self and its other,
as opposed to a self-relation.'9 So conceived, the other is not a priori some
one who is "on one's side," and therefore is someone who could indeed
become an enemy, or, at the very least, an opponent. This possibility will
depend on whether the relation between self and other can be considered by
either to be in accordance with right or justice. That is why Rawls and

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Vatter / Public Reason and the Reason of State 243

Schmitt both think that, if principles of justice are to be realized in basic


social 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 to
the 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 problem
of application, put the matter as follows: it is one thing to be aware of the
laws of nature (equivalent to principles of justice) and want to follow them
(equivalent to having the right subjective motivation), but it is an entirely
different matter to constitute a sovereign power that makes their application
possible 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 by
examining the subjective "motivation" for doing "what is right" (for all
such matters occur inforo interno, and remain inscrutable to the other). The
answer to the question "why should I obey these institutions and their
authority?" is not "because I am reasonable" but rather "because they are
legitimate." But what makes them legitimate cannot be seen by further ana
lyzing my subjective motivation. Rather, institutions are legitimate in so far
as they manage to apply justice; in so far as they make up a political order
that realizes justice. How such political order is possible cannot be
accounted for by the same arguments that ground the derivation of the prin
ciples of justice themselves.2'
For a theory of justice to be "political," as Rawls and Schmitt understand
the term, the principles of justice must be applied in such a way as to allow
for the establishment of a stable political unity in a society characterized by
a plurality of interests (economical, social, etc.) and comprehensive belief
systems (religious doctrines, ethics, philosophies, etc.) that conflict with
one another. Schmitt assumes pluralism as a "fact," as something given, as
much as Rawls.22 Both propose to find a basis for a political association that
will 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 many
associations strung together without an overarching, supreme unity.23 In
this sense, although both assume the centrality and unavoidable nature of
the "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 to
mean the support that a people gives to the state and other basic structures

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244 Political Theory

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 radically
public character.26 In other words, legitimacy presupposes an idea of public
reason that has in sight what is just or right (justum, gerecht). For both
Schmitt and Rawls, legitimacy presupposes a people, and for that reason
the dimension of the political also refers to a relation among citizens that is
prior to the state but is not natural, and thus, must be constructed.
Therefore, the political concerns the constitution of a people and of its
power.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 brings
a 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 the
sense of being "not metaphysical."28 This autonomy of the political signals
a 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 is
impossible 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 society
will remain unified only to the extent that "the sanctions of state power" are
employed, leading to instability in either the short or long run. Therefore,
that state's foundation would be merely ideological.29 The metaphysical or
religious foundation of justice, for Rawls, runs afoul when it meets with
"the fact of oppression."30 Analogously, Schmitt thinks that the autonomy
of the political, with respect to metaphysical or religious conceptions of the
good life, is the sole alternative to handing over supreme coercive power to
whomever feels more convinced (on metaphysical or religious grounds) of
the truth of their beliefs, to whomever feels that such conviction not only
makes them right (gerecht) but also self-righteous (selbstgerecht) about
being in the right, to employ a play on words he uses.3'
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 category
addresses the problem of who can judge what is just or who has the right to
apply (the principles of) justice (juris-dicere) given the existence of reason
able disagreement on the truth of comprehensive doctrines of the good. The
question of who is judge (of what counts as just) has two sides to it: on one
hand is the question of the deliberation on what is just; on the other is the
question of the publicity of what is just. My claim is that Rawls and Schmitt
both articulate their answers to this question through a combination of ideas

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Vatter / Public Reason and the Reason of State 245

of public reason and political representation. Public reason is the organ of


juris-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 basis
of which a people constitute themselves, and thus the very idea of a public
reason, relies on principles of political representation. Reasons cannot be
public 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 (and
Popes), who desired to consolidate their kingly estate (status regis) in a
contest 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 reason
of the utility of what is public." This term means the reason (ratio) that
gives a superior right (jus) to an office or estate (status), in this case the
status 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 exists
for 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 internally
connected 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 no
abstract opposition between justice (reason) and power (sovereignty). From
its 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 the
superiority 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 king's court
and council to argue for their rights in a deliberative process, leading to a

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246 Political Theory

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 of quod omnes tangit to the sphere of public right, stating
that any affair that could potentially affect everyone thereby became every
one's concern and must be consented by everyone. This generated a need
for the interests of all affected parties to be adequately represented.36 At the
origin of modern theories of political representation there is no abstract
opposition between deliberation and decision or between procedural and
substantive justice.
In this medieval jurisprudence, the reason for why an estate qualifies as
something of public utility is called ratio necessitatis. The public reason
determines the extraordinary measures (including laws) that need to be taken
in cases of necessity or emergency to save the political community. "It was
the king's right to deal with an emergency: for the common good he claimed
a superior jurisdiction, in order to suppress disturbers of the peace within the
kingdom, made a new law for a new situation with the counsel and consent
of his council, and of all whom the matter touched."37 Schmitt's attempt to
develop 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 late
medieval tradition of jurisprudence.38 If Post's historical reconstruction is
more or less correct, then this is the same tradition that gave birth to the
modern concept of due process, and an embryonic form of the procedural
concept of justice that arguably reaches its highest formulation in Rawls's
theory of justice.39
Basing my argument on Post's historical analysis, I identify two differ
ent but co-originary senses in the concept of public reason (ratio publicae
utilitatis). On one hand, the concept refers to a reasonfor an estate (status)
with a superior right orjus. The public reason in question is that this estate
serves the good of the entire community and that community "has a public
right that is superior to and embraces all private rights of kings and
subjects."40 On the other, the concept of public reason refers to a reason of
the estate which is charged with interpreting or deciding, case by case, what
the good of the community requires.41 One can say that the first sense of
public reason (ratio status rei publicae, "by reason of the government of
public 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 the
state, whereas the second sense of public reason (ratio status magistratus,
"by reason of the ruling office or power") denotes the superiority of the
power of an estate over the rights of private persons, and thus I shall refer
to it as a reason of the state (in fact, Post identifies it as a precursor of abso
lutist raison d'e'tat). 42

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Vatter / Public Reason and the Reason of State 247

I argue that in their interpretations of the idea of public reason, Rawls


privileges and radicalizes the first sense of the term, while Schmitt does the
same for the second sense. But, in essence, both occupy contrary standpoints
within the same space of reasons opened up by the emergence of the idea of
public reason in the late medieval context. In Schmitt, the public reason of
the state (for Schmitt, sovereign is he who detains such reason) absorbs the
public reason for the state: the decision of the sovereign constitutes the
people. Schmitt's theory of the political requires that the good of the people,
that is, the reason for the state, be determined by the sovereign decision as
to 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 political
society (not identical with the state) is superior to the public reason of the
state, and the application of justice is what permits the constitution of power
for such a people. For this constitution, justice is the scheme of the equal
rights 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 Schmitt's theory of the political con
siders the state of emergency or state of exception to be the permanent and
necessary condition of possibility for the political unity of a society.4' The
rights of private persons, including the rights of persons as citizens, are
always 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 peace
through 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 and
unhesitatingly to kill enemies. The endeavour of a normal state consists above
all 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 the


medieval doctrine of the state of emergency is that the primary political
enemy becomes the "internal" enemy, because the fundamental decision that
constitutes political unity is whether or not there exists a state of civil peace.46

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248 Political Theory

What I would like to emphasize in this context is that Schmitt's theory of


the political cannot be understood apart from the reference to a concept of
justice found at the heart of his jurisprudence. Schmitt considers that justice
is always a regulative idea of "what is just for everyone" and what lies "in
the equal interest of everyone."47 Wherever Schmitt speaks about justice, he
always mentions justice in connection to reason.48 For him, Jus or Recht is
an 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 Schmitt's infamous
"decisionism," with its necessary reference to an unquestionable source of
authority, which, relative to the standards of modem political rationalism,
gives his jurisprudence its unmistakeable aura of "irrationality"?50 As Carlo
Galli has demonstrated, for Schmitt the ideas or principles of justice, pre
cisely because they are abstract ideals, need to be applied to reality.5'
Schmitt does not consider reality to be constituted a priori by such ideas or
principles of justice. From the beginning of his production, he rejects the
idealist conception of reality, and he does not have a dialectical conception
of the relation between idea and reality.52 Schmitt's 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 the
principles of justice.53
Schmitt's attacks on parliamentarism are normatively grounded on his
claim that "the pre-existing and presumed congruence and harmony of right
and statute, justice and legality, substance and procedure," characteristic of
a parliamentary regime, remains unproven.54 In fact, such congruence for
Schmitt is ultimately undemonstrable because, on his account, every par
liamentary legal system necessarily contains other sources of right apart
from statutory lawmaking that are embodied by the "extraordinary law
givers" envisaged by their constitutions.
The key to understanding Schmitt's jurisprudence lies in making out the
reasons for the superiority of "extraordinary" over "ordinary" legislative
authority. A good example of such reasoning is found in the discussion of
the extraordinary lawmakers, particularly the executive endowed with
decree 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 component
of its 'validity.' However, the lawmaker under normal circumstances is some
thing different than the special commissioner of the abnormal situation who
re-establishes normalcy ('security and order').55

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Vatter / Public Reason and the Reason of State 249

In emergency situations, or in the case of necessity, the "race" to legislate


between legislative and executive "reveals the very clear superiority [of the
extraordinary lawmaker] ... which prompts his introduction."56 Schmitt's
argument for the superiority of the extraordinary lawmakers with respect to
parliament does not rely merely on the superior speed with which the exec
utive can make law in emergency situations compared with the slowness of
the parliamentary legislature, for that is not a normative ground for superi
ority.57 Rather, the superiority of extraordinary lawmaking is grounded on
three kinds of reasons (rationes): rationes materiae, adduced to justify the
superiority of substantive legal restrictions (for instance, a bill of rights)
within a formal-legal constitution; rationes supremitatis, adduced to justify
the priority of the people's 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 reason
that gives more might to the right of the executive over that of parliament
to 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 superiority
based on reasons. This does not mean that authoritative decisions are, as
such, the conclusion of rational syllogisms: they remain acts of the will of
a public person, where, for Schmitt, the will is not identifiable with practi
cal reason. In the terms I introduced above, such authority based on reasons
would be the public reason for having the state.
However, in Schmitt it is the theory of application that determines the
sense of his discourse on legitimacy. This theory of application has three
essential components, all of which are traceable to Schmitt's appropriation
of the idea of public reason found in Hobbes. First, the state is always and
only a function of the application of justice. For Schmitt, there is no legiti
mate state that is not, in the above sense, a Rechtsstaat.59 Second, the polit
ical turns on the sovereign's decision as to who is a friend and who is an
enemy.' The political is a matter of deciding about the safety of the entire
society in a state of emergency.6' 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 the
terms introduced above, this aspect would correspond to the public reason
of the state, i.e., the reason of the public person who decides in the last
instance. 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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250 Political Theory

Schmitt says that the concept of the political is more primordial than the
concept of the state;6' even though he does not thereby mean that the polit
ical could have an existence that is separate from the state, for the political
in Schmitt is always oriented towards the determination of what in a society
can 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!
Legalitdt), which needs to be distinguished from "legitimacy" (Legitimitdt ).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 fundamental
formula of his jurisprudence Hobbes's dictum: "authority, not truth, makes
law" (auctoritas, non veritas, facit legem).66 He contends that legitimacy
always 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 or
there is not a state of war counts as the primordial application of justice, in
the sense of jus belli.69 This application of justice on the part of the state
"as the decisive political entity" is intended to protect the subjects for "the
right to demand from its members the readiness to die and unhesitatingly to
kill enemies" is but part and parcel of "the endeavour of a normal state ... in
assuring total peace within the state and its territory." That is why the sov
ereign can legitimately claim from them their obedience to the norms and
measures of the state.
Now, if it is rather easy to trace a direct line from the late medieval
jurists of the superiority of the status regis, through the theories of absolute
sovereignty 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 as
the reason for the state. This is an idea which makes only fleeting appear
ances in Schmitt's writings. Since the decision on who is an enemy refers
to an "existential threat to one's way of life,"70 this decision must be taken
by the state, but it must also meet with the consent of the people as a whole
for "as long as a people exists in the political sphere, this people must, even
if only in extreme cases-and whether this point has been reached has to be
decided by it-determine by itself the distinction of friend and enemy."7' To
give a democratic edge to his conception of the political, Schmitt here
applies the quod omnes tangit principle, given that the decision to engage
in war affects all of society, and therefore must be consented to by the entire
people 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 sovereign's decision to apply the

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Vatter / Public Reason and the Reason of State 251

jus belli, is congruent with Schmitt's concept of democracy, which is


defined 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 entire
people to "determine by itself the distinction between friend and enemy"
with the required univocity. Schmitt's basic idea is that the unified will of a
people corresponds to the decision of the singular will of the sovereign or
of the extraordinary legislator.74 For Schmitt, the distinction between internal
friends and enemies is always connected to a "substantive" concept of a
homogeneous 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 people's constituent
power (pouvoir constituant).77 Such power stands in contrast to the produc
tion and application of legal norms, which he calls ordinary legislation and
associates with the constituted power (pouvoir constitue) 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
Schmitt's texts need to be taken with a grain of salt. In reality, the purported
contradiction between liberalism, with its atomistic principle of representa
tion, and democracy, with its corporativist principle of representation, that
structures Schmitt's entire polemical writings during the Weimar period,
misses completely the tertium datur of modern republicanism and its own
principle of representation, which is irreducible to the above mentioned
possibilities. Rawls certainly did not forget that in "The First Definitive
Article to Perpetual Peace," Kant distinguishes a democracy from a repub
lic precisely because the latter is centered on a principle of representation
that separates the power of the people from the exercise of state sover
eignty. Schmitt's idea of democracy, by way of contrast, ultimately relies on
a "principle of representation" that he finds in the political tradition of
Roman Catholicism.78 The idea that the omnipotent sovereign "represents"
an entire people as well as every individual member of this people relies on
two characteristic features of this Catholic idea of political representation.79
The first of these is that political unity comes to society or to the people
"from above."80 Political unity is attained when a personal representative of
justice applies this jus through rulings.8" The second feature of Schmitt's
device of representation is that (worldly) life must be sacrificed for (eter
nal) life: citizens must be capable of "giving up" their physical life to the
state on demand for the sake of receiving a "redeemed" life, namely, an ulti
mate meaning to one's existence.82 That is why the "original position" in

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252 Political Theory

Schmitt, where the principle of jus (belli) is decided upon, coincides with a
state of emergency, where the application of justice is inseparable from the
decision between friend and enemy, and thus from "the readiness to die and
unhesitatingly to kill enemies." Schmitt's principle of representation stands
at the antipode of Kant's republican principle of representation. Whether
Schmitt's political Catholicism is more "democratic," in any sense of the
term, than the republican principle, remains a dubious proposition.

The Idea of Public Reason in Rawls

In Political Liberalism, Rawls reverses Schmitt's order of priority with


respect to the two senses of the idea of public reason. In Rawls, the public
reason for the state (that is, the good of the political society) is superior to
the public reason of the state. The public reason for the state is modelled by
the "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 with
the (constituent) power to give itself a political constitution, that is, the con
struction of a people as an extraordinary legislator.84 In contrast, the public
reason of the state is composed of the kinds of justifications that the state
must 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, this
power of the people.85 The most basic sense of public reason in Rawls does
not refer to a reason that renders the sovereign "necessary," as with
Schmitt's ratio necessitatis. On the contrary, it is a reason that frees the
people not from the state itself, but from the sovereignty of the state over
the political life of a free society.
A public use of reason is already at play in the original position. This is
the case not only because each representative of a citizen must choose the
principles of justice in as rational a manner as possible, but also because
these principles must be able to be such that the other representatives may
consent to them. This means that the principles of justice must be such that
every citizen not only knows him- or herself to be adequately represented in
the selection of these principles, but also that all other citizens recognize
this, in the sense that the decision for these principles is representative of the
political unity of all citizens into a people. This condition for the principles
of justice corresponds to the condition of reciprocity that Rawls considers
fundamental to a reasonable, and not merely rational, idea of public reason.86

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Vatter / Public Reason and the Reason of State 253

According to the terms I introduced above, the Rawlsian condition of


reciprocity 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 original
position 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 of
which public affairs are governed in Rawls is neither the "common good"
nor the "security" of the community, as it was in the medieval theories of
ratio publicae utilitatis that sought to establish princely regimes. It is the
status 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 status
of being politically or "fully" autonomous. To have sui juris status means
two things in the vocabulary of the later Rawls: first, to be considered by
all 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 the
last judge of the goodness of anything for oneself.88
Through its political, constituent power, a people recognizes the suijuris
status 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 their
political association.89 This simply means that sui juris status is made good
through the application on the part of the "basic structure" of the political
society 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 must
favour the least advantaged).90 From the point of view of public reason, the
rights and honors that are recognized and applied by the basic structure
exist to empower the citizens in such a way that each can see in the other
an equal source of right or justice (in Rawls, jus is always a question of sui
juris).91 In Rawls's political liberalism, the state exists by reason of a
society that is thoroughly political-a society whose "basic structure" is
intended to allow individuals to achieve the "full autonomy" of citizens. In
the 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 political
unity on a society based on the consensus of a majority of citizens to one
reasonable comprehensive doctrine.
In my reading of Rawls's political liberalism, the principles of justice are
a "common good" in the sense that they grant a form of liberty-the status
of being sui juris-which is possible to enjoy only in a politicized society.
Such a society is politicized not because the state can interfere in everyone's
life whenever it so desires, but precisely for the opposite reason: because the

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254 Political Theory

state must confront and justify itself before the power of the people. The
"equal 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 with


the public conception of justice; therefore all are capable of honoring the
principles of justice and of being full participants in social cooperation
throughout their lives. On this basis, all view themselves as equally worthy
of 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 conception
of social cooperation.92

Because the political or public reason for a political society is the exercise
of the capacity or power that each citizen has of being sui juris, an equal
source of right, justice can exist neither in the isolated individual (for
example, in the form of negative liberty) nor in the public person (for
example, in the form of legitimate state authority). Justice exists in the pro
cedure itself which publicly represents all individuals as citizens in an equal
manner, as equal members of a people, that is, of an association based on
fair terms of cooperation.93 The proper response to Barry's objection that a
"political" conception of justice is unnecessary once justice is tied to the
reasonableness of individuals is that, for Rawls, such reasonableness is
inseparable from the recognition by others of the individual's status of par
taking equally in the government of public affairs. Either reasonableness is
political, 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 as
fairness is that of the good of political society."94 In other words, it is not
only as an instrument of justice that political society, and eventually the
duly 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 aim
of justice is completely political. Thus, citizens form a political society that
is a good for them not only because such a society is instrumental to the
pursuit of their individual interests (their conceptions of the good), but
more importantly, because the political society applies justice even when
this 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 of
that society; and the good of being citizens is the good of being recognized

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Vatter / Public Reason and the Reason of State 255

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 state
without mutual recognition between citizens. Here, political society tran
scends the reason for the state, the political is separate from the state, and
the political does not have the state as its immanent telos. Through this
mutual or public recognition, the "basic needs" of the people are taken into
account 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 nothing
less than the good of constituting a political society understood as a people
composed of sui 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 is
correct, then what is the public reason of the state according to his account?
The state, and all citizens who participate in politics by seeking office or
supporting 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 an
institution, 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 measures
of the state.98 In Rawls, just as in Schmitt, one finds the tacit use of the
Hobbesian formula protego ergo obligo to understand the legitimacy of the
state. Some interpreters have remarked on the possible affinity between
Rawls's understanding of the political and Hobbes's 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 (that
is, the content of public reason) in a neutral manner with respect to the reli
gious convictions at war with each other. Hobbes's solution postulates an
identity between the will of the sovereign and public reason. This allows
him to situate liberty of conscience as a purely private matter, of indifferent
value to the state.
I understand Rawls's idea of public reason as a critique of Hobbes's 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 the
state. But this move, on Rawls's account, deprives the state of the source of
its 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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256 Political Theory

manner, defends the public discussion of revolutionary intentions,'" his


point seems to be that the stability of a political society requires that the
legitimacy of the state be considered by all citizens as secondary with
respect 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.'0'
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 the
state an incentive to make its reasons less than completely public. Following
what Kant postulates in Towards Perpetual Peace with regard to the inverse
relation 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 public
would 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 the
application of the principles of justice may go against the "best interests"
of 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 choose
principles of justice for their constituents and these must also be such that
other representatives can consent to them, but because the original position,
as the later Rawls models it, constitutes the "power" of the people in the
sense 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 good
of having citizens endowed with the right to be superior to the state. In this
sense, Rawls's original position as a "device of representation" corresponds
to Kant's republican principle of representation, intended to separate the
power of the people from the sovereignty of the state, assigning to the for
mer superiority over the latter.'02
Likewise, the original position and its public use of reason corresponds to
Kant's famous advocacy for a "public use of reason" in An Answer to the
Question: What is Enlightenment? In relation to the original, medieval idea
of ratio publicae utilitatis, Kant maintains the first sense of the term-the
reason for the utility of an office to society as a whole-but uncouples it from
the reason of the public official. He thereby denies that the public official's
use of reason has a public character, and allows the reading public at large to
participate in the discussion of what is of public utility.'03 This understanding
of public reason in Kant corresponds to the first maxim of reflective judgment
in section 40 of the Critique of Judgment: to think for oneself (rather than rely

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Vatter / Public Reason and the Reason of State 257

on the opinion of an authority). Kant's subversive move, compared with the


medieval tradition of public reason, consists of questioning the sovereign
state as the embodiment of the public, thus questioning the state's claim that
it is the highest representative of society's good.104
Several features of the medieval model of full powers (plena potestas)
can be identified in Rawls's idea of the original position as a device of rep
resentation. In Rawls, for instance, the goal is to make a final, substantive
decision or judgment on the fair terms of political association: procedure
aims at just decisions to which participants in the process have given their
consent 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 the
people, and not the people itself, who could argue on matters of ultimate
jurisdiction. 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 her
constituent. In the Rawlsian original position, just like in the medieval
kingly court, what is at stake are the principles of justice that will govern
the "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 of
the 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 to
Kant's subversion of the medieval idea of public reason. Public reason here,
at the most primordial level, stands for the outcome of a decision procedure
whereby rational representatives are placed in a situation that constrains
them to be reasonable. This constrains them to adopt what Kant calls, in the
Critique of Judgment, the second maxim of reflective judgment: the
"enlarged mentality" that comes by putting oneself in thought in the place of
the other.
The idea of a veil of ignorance in Rawls's device of representation is dia
metrically opposed to Schmitt's device of representation. For Rawls, the
rational representatives are not, taken by themselves, reasonable, and there
is 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. Rawls's original
position communicates to all citizens equally that no public office and, a for
tiori, no public official represents justice because justice consists in those
fair terms of their association whose application, by the basic structure of the
association, generates at once their power and their right. Thus, in a first

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258 Political Theory

moment, the representation achieved through the original position gives the
"superior right" to the "public reason" that is constitutive of citizens.
In a second moment, this power of the citizens as sui juris becomes the
constituent power of a people, which is intended to give these citizens their
political constitution through another device of representation, namely, that
of a constitutional convention.106 The constituent power of a people decides
the kind of state and its powers that are most likely to apply the principles
of 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 for
discussion 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 fully
autonomous citizens and "that of ourselves-of 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 of
autonomous 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 worth
of a political conception of justice depends on the possibility of its stand
ing in reflective equilibrium with our "more firm considered convictions of
political justice."''07 This possibility corresponds to the adoption of Kant's
third maxim of reflective judgment in the Critique of Judgment: to stand in
agreement with oneself. Once again, Rawls' employment of the original
concepts composing the idea of due process, namely, full powers and quod
omnes tangit, occurs in a context that is determined by Kant's subversion
of the medieval idea of public reason: the third maxim of reflective judg
ment standing for the possibility of a referendum as an essential component
of political representation. Originally, the idea of giving full powers to the
representatives was designed to avoid the need for referenda, or at least
keep it under control as much as possible, in the interest of preserving the
integrity of the sovereign's final judgment.
In a third moment of Rawls's 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 to
stand as an "exemplar" of public reason in the sense that such a court must
communicate 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 of
their "duty of civility,"'09 should check whether the laws and measures of
the 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 an
ordinary, but in an extraordinary situation), and ratified in the form of a

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Vatter / Public Reason and the Reason of State 259

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 between
an extraordinary legislation that corresponds to the first two moments of
representation, and an ordinary legislation that corresponds to the third
moment of representation. Similarly, as in Schmitt, Rawls asserts that the
extraordinary is always superior to the ordinary. But what is extraordinary
in Rawls is not the authority of the sovereign's judgment, as much as the
power of every ordinary citizen's 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.
Rawls's idea of public reason has been criticized for allegedly being
insufficiently open or tolerant with respect to public or democratic deliber
ation and for falling short of the kind of communicative rationality that one
can find in the wider sense of the public sphere.'10 In recent times, the
debate about public reason has focused on the degree to which it should or
should not be open to "religious" reasons; whether letting such reasons into
public political deliberation encourages or discourages oppression."'1 Without
wishing to engage this debate here, it is undeniable that these discussions
are symptomatic of the worry that the idea of public reason is compromised
with the reasons of sovereignty, and thus with the imposition of silence on
religious voices in the sphere of public right.
In spite of the fact that neither Rawls nor Schmitt are Platonists when it
comes to political philosophy, their use of the idea of public reason remains
within the domain of an identity between the "strongest reason" and the
"reason of the strongest" which, as Derrida has recently argued, is estab
lished in the Western philosophical tradition through Plato's arguments for
the necessity of having philosophers as kings." 2 This identity can be found
at work in both Rawls and Schmitt in the sense that for both public reason
needs to be a reason that will meet with the reflected (not aggregate) agree
ment or support of the most citizens (thereby generating more knowledge
and more power for the people). Furthermore, in both of their conceptions
this public reason grants the state, as representative of political society, the
superior 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 appear
in 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 not
only because they are the reasons of the powerless, but also because they

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260 Political Theory

are viewed as minoritarian or immature reasons, reasons not sufficiently


"enlightened" to obtain the assent of a possible majority. There is a sense
in which the very idea of public reason, rather than providing the essential
response 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 of
order against anarchy, and of homogeneity against singularity. Conversely,
from the beginning of his work, Rawls takes seriously the problem posed by
the repression or exclusion of minoritarian reasons for the stability of a polit
ical association, as shown by his frequent discussions of civil disobedience
and the right to voice extreme forms of dissent to government policies. His
last attempt at a response to this problem is contained within the "proviso"
that 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 that
public 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 in
terms that can be adopted by public right."3 In other words, the reasons of
the 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 can
be seen, in the present, as applications of the principles of justice of citizens
and, 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 acknowledge
that its single-minded adherence to "the strongest reasons" may be its tragic
weakness. The single-minded pursuit of the strongest reasons, and their
achieving a superior right, signals an absolutization of the dimension of
legitimacy within the political which may, in the long run, be a source of
instability for the political association. The "proviso" of the later Rawls can
be interpreted as an application to a "wider" conception of the public sphere
of his notion that public reason is the form taken by the principle of tolera
tion when this is applied to philosophy itself."4 But I suspect that if Rawls'
proviso is only taken to express the application of the principle of toleration

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Vatter / Public Reason and the Reason of State 261

back on to the idea of public reason itself, then this kind of reading of the
proviso will not suffice to provide the idea of public reason with the kind
of self-reflexivity it needs to acknowledge the paradoxical weakness of the
strongest 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, Rawls
associates his idea of public reason with Kant's discussion of the public use
of reason in What is Enlightenment? Kant reassigns the use of reason from
its 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 must
not only be composed of the reasons that the state gives to legitimate its
"good" for political society in general, but must legitimate before the
people the good "of' the state. The public use of reason should also be a
use 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 a
political judgment that interrupts the functioning of relations of legitimate
rule. Thus, the question of how to conceive of a public reason that would
bring together the strongest reasons (the political) and the reasons of the
weak (the anarchical), can now be rephrased as follows: Is there a critical
and public use of reason other than its "sovereign" use, the latter being a
use 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 of
reason other than that which is intended to motivate the obedience of
subjects to their legitimate political order?
In the Kantian corpus there seems to be a public use of reason whose goal
is the critique of obedience (and which, therefore, goes beyond the famous
exhortation to "argue all you like, but obey!" of What is Enlightenment?).
However, such a public use of reason is in reality the use of reason made by
the faculty of reflective judgment, which is significantly opposed, in Kant,
to the use of reason on the part of determinant judgment in the faculties of
pure 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 if
this 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 model
itself on the Kantian idea of a critique of judgment.115 In the former sense
of critique, all metaphysical claims stand in judgment before a tribunal of

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262 Political Theory

reason established on the basis of a partition between the sensible and the
intelligible that is intended to filter through the strongest reasons and place
the principle of reason itself on a secure footing."16 But the use of reason
on the part of the power of judgment, when employed reflectively, func
tions without finality and makes possible something like a critique of the
critique (of pure and practical reason), that is, a partition of the sensible
that does not find in the principles of pure or practical reason its definitive
criterion.
Whenever reflective judgment makes use of the ideas of reason, it makes
possible 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 faculties
of pure and practical reason turn on their capacity to interrupt just this kind
of application. They are judgments, in short, that question the sovereignty of
reason, and thereby undermine the identity between the strongest reasons
and the reasons of the strongest. Such an interruption of sovereignty is the
condition of possibility for the emergence of an order without law, a space
of no-rule, where a public can constitute itself through agreement on judg
ments which-because they are radically disinterested-can never be fully
translatable into the terms of a state's public reason. Thereby, they are judg
ments which preserve the critical disjunction (krinein) between a people
and its government that characterizes Kant's 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 stage
afforded by the sovereign tribunal of reason, but on a different stage, one that
permits the recollection of the claims of justice of those members of society
whose modality of participation in that society as a collaborative endeavour
has been imposed on them, i.e., of those members of society who are unrep
resentable according to the devices of representation offered by the basic
structures of society. This new idea of public reason would allow us to address
the 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 and
Disagreement (New York: Oxford University Press, 1999); Jeremy Valentine and Benjamin
Arditi, Polemicization: The Contingency of the Commonplace (New York: New York University
Press, 1999); William Connolly, Why I Am Not a Secularist (Minneapolis: University of
Minnesota Press, 2000) and Sheldon Wolin, Politics and Vision: Continuity and Innovation in
Western Political Thought (Princeton: Princeton University Press, 2004), 538-50.

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Vatter / Public Reason and the Reason of State 263

2. Cf. Chantal Mouffe, "Deliberative Democracy or Agonistic Pluralism," Social Research


66, 3 (1999):745-58, and Chantai 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 Rawls's idea
of public reason, cf. Rainer Forst, "The Rule of Reasons. Three Models of Deliberative
Democracy," Ratio Juris 14, 4 (2001):345-78.
4. Carl Schmitt, Der Begriff des Politischen (Berlin: Duncker & Humblot, 2002), 20 and
John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 374. For a
detailed analysis of the senses in which Rawls distinguishes "the political" from "politics," and
for a critical discussion of the readings of Rawls as anti-political thinker, cf. Roberto
Alejandro, "What is Political About Rawls's 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 Schmitt's relation to liberalism, with all of its ambiguities, cf. John McCormick,
Carl Schmitt's 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 Schmitt's Antiliberalism: Its
Theoretical 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 the
analysis of political concepts.
11. For recent treatments of Schmitt's 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: Conceptions
of Politics and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann
(Oxford: Oxford University Press, 2003). On Schmitt's reception in the English-speaking
world, cf. Peter Caldwell, "Controversies over Carl Schmitt: A Review of Recent Literature,"
The Journal of Modern History 11 (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 made A Theory of Justice worthwhile. I have no interest in defend
ing anything Rawls has written since about 1975, including his subsequent interpretations of
A Theory of Justice or his revisions of its text. Rawls's current position, embodied in The Law
of Peoples, amounts to a rather muddled version of Michael Walzer's anti-Enlightenment par
ticularism." But even Larmore, in his presentation and defence of "political liberalism," hardly
touches on the idea of the political in Rawls. He chooses to present political liberalism starting
from the idea of neutrality; giving to the idea of neutrality a "moral" rather than a "political"

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264 Political Theory

meaning (Larmore, The Morals of Modernity, 125-32). For a view defending the importance
and novelty of Political Liberalism in comparison to A Theory of Justice, cf. Burton Dreben,
"On Rawls and Political Liberalism," in The Cambridge Companion to Rawls, ed. Samuel
Freeman (Cambridge: Cambridge University Press, 2003), who argues that Rawls thereby
intended to address the question of whether "the notion of a constitutional liberal democracy
is 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 Rousseau
and to decisionism. Cf. Bonnie Honig, "Between Decision and Deliberation: Political Paradox
in Democratic Theory," American Political Science Review 101, 1 (2007): 1-18 for another
return 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 the
point 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. Carl
Schmitt, Ex Captivitate Salus. Esperienze degli anni 1945-1947 (Milan: Adelphi, 1993), 92 on
the Hegelian theme of "Der Feind ist unsre eigene Frage als Gestalt," commented upon at
length 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 problem
of application in Hobbes and for Hobbes's reliance on the idea of public reason to resolve it.
21. For another discussion of this crucial point, cf. Jody S. Kraus, "Political Liberalism and
Truth," 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 be
pluralist, is of course different in both authors. Schmitt has no equivalent theory to Rawls's
"burdens 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, 392.1 discuss in
what 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 of
Parliamentary Democracy (Cambridge: MIT Press, 2001), 56; Rawls, Collected Papers, 324-25.

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Vatter / Public Reason and the Reason of State 265

27. On the people, cf. Schmitt, The Crisis of Parliamentary Democracy, 16; Schmitt, The
Concept 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 Leviathan
in 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 means
that "a well-ordered society does not require an ideology in order to achieve stability, under
standing 'ideology' (in Marx's sense) as some form of false consciousness or delusory scheme
of 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 the
equivalent rejection of a metaphysical foundation of justice is expressed in various ways. For
instance, when he claims that "the absence of commitment to these ideals [of autonomy and
individuality], and indeed to any particular comprehensive ideal, is essential to liberalism as a
political doctrine" (Rawls, Collected Papers, 409). But also: "Those who reject constitutional
democracy 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 or
secular community or those who are not; or it may be a relentless struggle to win the world
for the whole truth. Political liberalism does not engage those who think this way. The zeal to
embody 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, Schmitt
would not have disagreed with this citation, to the contrary. This is, in fact, the meaning of the
motto that he appropriates in Ex Captivitate Salus: silete, theologi, in mu?ere alieno! (Schmitt,
Ex Captivitate Salus. Esperienze degli anni 1945-1947, 72). The "theologians" who have to
keep silent in the domain of public right or political justice are, to employ Rawls's 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 the
idea 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 of
public reason I shall rely on the results of two decades of research into late medieval political
thought conducted by Gaines Post during the 1940s and 1950s and republished in book form
in 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 political
theory and jurisprudence in medieval thought and its significance for modernity. In the Anglo
American world, this debate begins with the reception of Gierke's work starting with Figgis,
through Mcllwain, Kantorowicz, and Post, and reaching all the way to the recent work of
Tierney, Pennington, Oakley, and Skinner. In my opinion, Post's results seem not to have been
refuted by subsequent historical research, although one has to admit that his work has received
minimal attention on the part of political theorists, apart from specialised literature, as exem
plified in Donald E. Queller and Joseph R. Strayer (ed.), Post Scripta. Essays on Medieval Law
and the Emergence of the European State in Honor of Gaines Post (Rome: 1972). The entry
on "Law, legislation and government, 1150-1300" by Pennington in J. H. Burns (ed.), The
Cambridge History of Medieval Political Thought c.350-c.l450 (Cambridge: Cambridge
University Press, 1988), 424-53 still makes ample use of Post's discoveries. The historiography

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266 Political Theory

of the modern concept of the state, after Quentin Skinner's seminal The Foundations of Modern
Political Thought, took a different course than the one traced by Post (and Kantorowicz) in their
times. On the French literature concerning the origins of the modern idea of the state and its
medieval roots, cf. Michel Senellart, Les arts de gouverner (Paris: Seuil, 1998); on the Spanish
literature, cf. Bartolom? Clavero, Raz?n de estado, raz?n de individuo, raz?n de historia (Madrid:
Centro de Estudios Constitucionales, 1991); on the Italian literature, cf. Paolo Grossi, L'ordine
giuridico m?di?vale (Bari: Laterza, 2004).
34. Post, 241-309.
35. Ibid., 116.
36. Ibid., 91-240.
37. Ibid., 113.
38. "In the legal theory, however, the king and his court and council had the power of deci
sion; and if they judged that their case of national defence was proved, they could decide
against the pleas of the representatives. To this final decision the representatives must consent
in accordance with their full powers" (ibid., 157).
39. "There can be no due process unless courts can compel consent to their judicial power"
(ibid., 123).
40. Ibid., 453.
41. Ibid., 290-300.
42. Status in medieval political theory does not have the same meaning as the modern con
cept of the "state," as Skinner correctly points out (Quentin Skinner, The Foundations of
Modern Political Thought. Vol. II. The Age of Reformation [Cambridge: Cambridge University
Press, 1978], 352-53). On the other hand, Post never claims that it does. His point, as I under
stand it, is more modestly to show how the late medieval idea according to which the status of
the king is inherently superior with respect to other parts of the society played a crucial role
in the development, during the Renaissance, of the modern concept of the state. For a useful
review of the meanings of the term status and rei publicae status since Cicero, cf. Alejandro
Guzman Brito, "El Vocavulario Hist?rico para la Idea de Constituci?n Pol?tica," Rev. estud.
hist, jurid. [online] 2002, n.24 [accessed 28 Sept. 2007], 267-313, http://www.scielo.cl/
scielo.php?script:sci_arttext&pid=s0716-5455200024000009&lng=es&num=iso. Guzman suggests
that status may carry both the sense of "stability" as of "government."
43. Some of the jurists working for the new princes, notably the King of Sicily Frederick
II, did argue for the permanent character of the state of exception (Post, 308). However, the
norm seems to have been closer to the position of Aquinas, who does refer to the state of
necessity and the princely capacity to "change" the law in such cases (Summa Theologiae
la2ae Treatise on Law, q. 96, a.5), but, in general, maintains that law is the ordering of a
people (constitutio populi), and the institution of law belongs to the people as a whole, or to
whomever represents the people as a whole (ibid., q.90, a.3).
44. As first argued in Carl Schmitt, Political Theology. Four Chapters on the Concept of
Sovereignty (Cambridge: MIT Press, 1988). Here my interpretation coincides with the thesis
argued in John McCormick, "Identifying or Exploiting the Paradoxes of Constitutional
Democracy? An Introduction to Carl Schmitt's Legality and Legitimacy',' in Carl Schmitt.
Legality and Legitimacy (Durham, NC: Duke University Press, 2004) and in Giorgio
Agamben, ?tat d'exception (Paris: Seuil, 2003), who argue that for Schmitt the state of excep
tion is necessary.
45. Schmitt, The Concept of the Political, 46.
46. Ibid., 48.
47. Carl Schmitt, Legality and Legitimacy (Durham, NC: Duke University Press, 2004), 20-22.

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Vatter / Public Reason and the Reason of State 267

48. For the positive relation between justice and reason, in reference to medieval jurispru
dence, cf. ibid., 5-7, and Carl Schmitt, Roemischer Katholizismus und politische Form (Stuttgart:
Klett-Cotta, 1984), 23. For the negative relation between justice and reason, in reference to
modern, liberal jurisprudence, cf. Schmitt, The Crisis of Parliamentary Democracy, 42-43.
49. A point excellently captured by Hugo Ball's essay on "Carl Schmitts Politische
Theologie" now reprinted in Jacob Taubes (ed.), Religionstheorie und Politische Theologie.
Band 1: Der Fuerst dieser Welt. Carl Schmitt und die Folgen (Muenchen: Wilhelm Fink Verlag,
1983), 106-8.
50. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 31-33; Schmitt,
The Concept of the Political, 38; Schmitt, The Crisis of Parliamentary Democracy, 68.
51. Cf. Carl Schmitt, Der Wert des Staates und die Bedeutung des Einzelnen (Berlin: Duncker
& Humblot, 2004), where the problem of application is the central theme. For an extended
treatment of the problem of application in Schmitt, cf. Carlo Galli, Genealog?a della pol?tica.
Carl Schmitt e la crisi del pensiero politico moderno (Bologna: II Mulino, 1996), 313-459.
52. On Schmitt's ambivalent relation to Hegel and Hegelianism, and in general for his
awareness of the crisis of dialectical thought and its consequences in the formation of his polit
ical and juridical thought, see, apart from ibid., 3-175, also the important works by Gopal
Balakrishnan, The Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2002); and
Jean-Francois Kerv?gan, Hegel, Carl Schmitt: la politique entre sp?culation et positivit?
(Paris: PUF, 2005).
53. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 13, 31; and
Agamben, ?tat d'exception, 68-70.
54. Schmitt, Legality and Legitimacy, 18.
55. Ibid., 69.
56. Ibid.
57. On the theme of speed of legislation and its relation to Schmitt's critique of parlia
mentarism, cf. William E. Scheuerman, Liberal Democracy and the Social Acceleration of
Time (Baltimore: The Johns Hopkins University Press, 2004).
58. Schmitt, Legality and Legitimacy, 41-83.
59. Ibid., 3-13. "Denn jede Ordnung ist eine Rechtsordnung und jeder Staat ein Rechtsstaat"
(Schmitt, Roemischer Katholizismus und politische Form, 41). This is not to deny, of course,
that the Schmittian conception of a Rechtsstaat is very different from its conception in the the
ories of legal positivism from Laband to Kelsen; just as it is different from the idea of the
republican-Kantian Rechtsstaat; or from the idea of a Rechtsstaat in Gierke. Part of the prob
lem is the intrinsic and irreducible polysemy of the word Recht, which can mean justice (jus)
or law (lex) or legal order or legal rights (Rechte). For a discussion of Schmitt in the context
of the history of the idea of Rechtsstaat, cf. Ernst-Wolfgang B?ckenf?rde, Recht, Staat,
Freiheit (Frankfurt: Suhrkamp, 2006), 143-70 and 344-66.
60. Schmitt, The Concept of the Political, 45-46.
61. Schmitt, Legality and Legitimacy, 69; Schmitt, Political Theology. Four Chapters on
the Concept of Sovereignty, 5-7.
62. Cf. Schmitt, Legality and Legitimacy, 6, where he speaks of the "deciding will" that
judges the applicability of right or justice: "the normative fiction of a closed system of legal
ity emerges in a striking and undeniable opposition to the legitimacy of an instance of will that
is actually present and in conformity with right."
63. Ibid., 4,71; Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 31-33.
64. Schmitt, The Concept of the Political, 19.

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268 Political Theory

65. Schmitt, Legality and Legitimacy, 9; Schmitt, Political Theology. Four Chapters on the
Concept of Sovereignty, 12-13.
66. Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty, 33.
67. For an overview of these ideas of legitimacy and order in their historical context, cf.
David Bates, "Political Unity and the Spirit of the Law: Juridical Concepts of the State in the
Late Third Republic," French Historical Studies 28, 1 (2005):69-101.
68. Schmitt, The Concept of the Political, 52-53.
69. Ibid., 46. In a major departure from medieval legal theory, Schmitt, citing Grotius,
rejects the connection between the application of jus belli and the "metaphysical" idea of a just
war (Schmitt, The Concept of the Political, 49).
70. Schmitt, The Concept of the Political, 49.
71. Ibid.
72. "Each participant is in a position to judge whether the adversary intends to negate
whether his opponent's way of life and therefore must be repulsed or fought in order to pre
serve one's own form of existence" (ibid., 27).
73. Schmitt, The Crisis of Parliamentary Democracy, 9ff.
74. Ibid., 26-28.
75. Schmitt, Legality and Legitimacy, 93.
76. Carl Schmitt, Die Diktatur (Berlin: Duncker & Humblot, 1994); Schmitt, The Crisis of
Parliamentary Democracy.
77. Schmitt, Die Diktatur, 142; Carl Schmitt, Verfassungslehre (Muenchen: Duncker &
Humblot, 1928), 77-87. On the use and misuse of "constituent power" in Schmitt cf. Renato
Cristi, "The Metaphysics of Constituent Power: Carl Schmitt and the Genesis of Chile's 1980
Constitution," Cardozo Law Review 21 (2000): 1749-75. For a defence of Schmitt as theorist
of democracy, cf. Andreas Kalyvas, "Carl Schmitt and the three moments of democracy,"
Cardozo Law Review 21 (2000): 1525-65.
78. "Diese formale Eigenart des r?mischen Katholizismus beruht auf der strengen Durchf?hrung
des Prinzips der Repr?sentation" (Schmitt, Roemischer Katholizismus und politische Form, 14).
One should note that Post, among others, dates the application to public law of Roman private
law principles to the time of Innocent III, when Roman Catholicism went through a particularly
acute "political" phase. For reasons of space, I cannot here discuss the complex history of the
relation between Roman Catholicism and what Schmitt calls "political form," nor the relation
between Schmitt's interpretation of the Catholic principle of representation and the conciliar the
ories of representation that many have seen fit, since Figgis, to identify with the origins of modern
parliamentarism.
79. On the defence of the state's might in political Catholicism, cf. Schmitt, Roemischer
Katholizismus und politische Form, 53-56, in particular his adoption of the standpoint of the
"Grand Inquisitor." On this reading of Dostoyevsky in Schmitt, cf. Th?odore Pal?logue, Sous
l'oeil du Grand Inquisiteur. Carl Schmitt et l'h?ritage de la th?ologie politique (Paris: Les
?ditions du Cerf, 2004).
80. Schmitt, Roemischer Katholizismus und politische Form, 43.
81. Ibid., 36.
82. This is why Schmitt says that the political form of Roman Catholicism represents
something "more than worldly jurisprudence, not only the idea of justice, but also the Person
of Christ" (ibid., 50). Cf. Ernst H. Kantorowicz, The King's Two Bodies. A Study in Medieval
Political Theology (Princeton: Princeton University Press, 1997), 232-72; and Post, Studies in
Medieval Legal Thought: Public Law and the State 1100-1322,434-53, on the motif pro patria
mori. Both coincide on the point that this motif originates with late medieval doctrines found

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Vatter / Public Reason and the Reason of State 269

in Roman Catholicism. The formula first appears in the context of the idea of a "just war"
when "the supreme necessity of defending the fatherland . . . makes lawful many things that
are otherwise unlawful" (Post, Studies in Medieval Legal Thought: Public Law and the State
1100-1322, 437). On the Catholic principle of representation in Schmitt, cf. now Raphael
Gross, Carl Schmitt und die Juden (Frankfurt: Suhrkamp, 2005); Samuel Weber, Targets of
Opportunity. On the Militarization of Thinking (New York: Fordham University Press, 2005);
and Miguel Vatter, "Strauss and Schmitt as Readers of Hobbes and Spinoza. On the Relation
between Liberalism and Political Theology," The New Centennial Review 3 (2004): 161-214.
83. Rawls, Political Liberalism, 50.
84. "In a democratic society, public reason is the reason of equal citizens who, as a col
lective body, exercise final and coercive power over one another in enacting laws and in
amending their constitution" (ibid., 214). For a critical analysis of the theory of recognition
presupposed by Rawls's idea of the original position, cf. now Christian Lazzeri, "Th?orie de
la justice et sentiments moraux," in L'action en philosophie contemporaine, ed. St?phane
Haber (Paris: Ellipses, 2004, 208-234).
85. Rawls, Political Liberalism, 233-35.
86.'Ibid., 49-50. On public reason as present in the original position, cf. Charles Larmore,
"Public Reason," in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge:
Cambridge University Press, 2003).
87. Cf. Rawls, Collected Papers, 316-17 on full autonomy versus rational autonomy; and
Rawls, Political Liberalism, 77ff.
88. Cf. Rawls, Collected Papers, 330-31 on citizens "as self-originating sources of valid
claims." For obvious reasons of space, I cannot here argue why this idea of freedom as sui juris
corresponds to the republican ideal of freedom as absence of domination, rather than to the lib
eral ideal of freedom as non-interference. For the latest formulation of this debate, and a dis
cussion of republican freedom as sui juris, cf. Quentin Skinner, "A Third Concept of Liberty,"
Proceedings of the British Academy 117 (2001):237-68.
89. Hence the importance of the condition of publicity for resolving the problem of sta
bility: "citizens affirm their existing institutions in part because they reasonably believe them
to satisfy their public and effective conception of justice. Now the notion of publicity has three
levels.... [The first...] means that society is effectively regulated by public principles of jus
tice; that is, everyone accepts and knows that others likewise accept the same principles, and
this knowledge in turn is publicly recognized" (Rawls, Collected Papers, 324).
90. Rawls, Political Liberalism, 5-6.
91. "[T]he scheme of basic liberties is not drawn up so as to maximize anything, and, in
particular, not the development and exercise of moral powers. Rather, these liberties and their
priority are to guarantee equally for all citizens the social conditions essential for the adequate
development and the full and informed exercise of these powers in what I shall call 'the two
fundamental cases'" (ibid., 332). These cases have to do with the application of the principles
of justice to the basic structure of society and to the application of the principles of delibera
tive reason to guide conduct (Cf. Rawls, Collected Papers, 320).
92. Rawls, Collected Papers, 333.
93. Rawls, Political Liberalism, 16-17, 40-43.
94. Ibid., 201.
95. Ibid., viii, 203. On the status of citizens in Rawls, see also Joshua Cohen, "For a
Democratic Society," in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge:
Cambridge University Press, 2003), 108.

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270 Political Theory

96. Cf. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1999),
176, for the intention to "bypass the dispute about the meaning of liberty." Perhaps because of
this intention, that book contains an ambiguity with respect to whether Rawls's conception of
liberty is exclusively that of liberty as non-interference. In any case, by Political Liberalism
his conception of liberty is no longer simply liberal. I hope to return to this complicated ques
tion at greater length in another article. My interpretation is compatible with the more repub
lican reading of Rawls that has lately been suggested by Philip Pettit, "Rawls's political
ontology," Politics, Philosophy and Economics 4, 2 (2005): 157-74.
97. Rawls, Political Liberalism, 231-39.
98. Ibid., 217ff.
99. For another discussion of Rawls's idea of public reason in relation to Hobbes, cf.
Duncan Ivison, "The Secret History of Public Reason: Hobbes to Rawls," History of Political
Thought 18, 1 (1997): 125-47. But Rawls distinguishes his idea of the political from the kind
of neutrality proposed by politique thinkers, where justice is oriented towards finding a modus
vivendi between opposed religious sects (Rawls, Collected Papers, 432-34,458-61), as well as
from the neutrality achieved in the manner of Hobbes (ibid., 422).
100. Rawls, Political Liberalism, 347-56.
101. "Thus constitutional democracy is dualist: it distinguishes constituent power from
ordinary power as well as the higher law of the people from the ordinary law of legislative bod
ies. Parliamentary supremacy is rejected. A supreme court fits into this idea of dualist consti
tutional democracy as one of the institutional devices to protect the higher law" (Rawls,
Political Liberalism, 233). "The constitution is not what the Court says it is. Rather, it is what
the people acting constitutionally through the other branches eventually allow the Court to say
it is" (ibid., 237). For an argument rejecting the idea that Rawls defends a "judicial guardian
ship over the people," cf. Cohen, "For a Democratic Society," 115-20.
102. Cf. Immanuel Kant, "Toward Perpetual Peace" in Practical Philosophy, ed. Mary
Gregor (Cambridge: Cambridge University Press, 1996), 324-25, where Kant distinguishes the
people's fullness of power (Machtvollkommenheit), which, in a republic, must be represented
by the government, from the sovereignty of the state (oberste Staatsgewalt).
103. Cf. Immanuel Kant, Political Writings, ed. Hans Reiss (Cambridge: Cambridge University
Press, 1991), 55: "But by the public use of one's own reason I mean that use which anyone
may make of it as a man of learning addressing the entire reading public. What I term the pri
vate use of reason is that which a person may make of it in a particular civil post or office with
which he is entrusted."
104. On Kant's subversion of the traditional idea of public reason, cf. John Christian Laursen,
"The Subversive Kant. The Vocabulary of 'Public' and 'Publicity,'" Political Theory 14, 4
(1986):584-603, and now Ciaran Cronin, "Kant's Politics of Enlightenment," Journal of the
History of Philosophy 41, 1 (2003):51-80.
105. Rawls, Political Liberalism, 428-32.
106. Ibid., 402-6.
107. Ibid., 28.
108. On citizens as "sovereign judges" in Rawls, cf. Cohen, "For a Democratic Society," 111.
109. Rawls, Political Liberalism, 217.
110. Cf. J?rgen Habermas, "Reconciliation Through the Public Use of Reason: Remarks
on John Rawls's Political Liberalism," Journal of Philosophy 92 (1995):109-31. For Rawls's
response, cf. Rawls, Political Liberalism, 372-434; on their exchange, cf. Forst, "The Rule of
Reasons. Three Models of Deliberative Democracy," 369-75.

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Vatter / Public Reason and the Reason of State 271

111. For the state of the debate as it concerns Rawls and Habermas in particular, cf.
Cristina Lafont, "Religion in the Public Sphere. Remarks on Habermas's Conception of Post
Secular Societies," Constellations 14, 2 (2007): 236-56.
112. Cf. Jacques Derrida, Voyous. Deux essais sur la raison (Paris: Galil?e, 2003).
113. "[Reasonable comprehensive doctrines, religious or nonreligious, may be introduced
in public political discussion at any time, provided that in due course proper political
reasons?and not reasons given solely by comprehensive doctrines?are presented that are
sufficient to support whatever the comprehensive doctrines introduced are said to support"
(Rawls, Collected Papers, 591).
114. Cf. Rawls, Political Liberalism, 10, 154 for the principle of toleration. For a general
ization of Rawls's use of the principle of toleration to philosophy, cf. now Rainer Forst,
Toleranz im Konflikt (Frankfurt: Suhrkamp, 2003).
115. Cf. Onora O'Neill, "The Public Use of Reason," Political Theory 14, 4 (1986):523-51,
who does not distinguish between a public use of reason according to reflective, rather than
determinant, judgment and conflates both uses. O'Neill seems to understand the practice of
critique as having the sole goal of securing the "authority of reason" over against other sources
of authority. Arendt's attempt to work something like an idea of public reason based on reflec
tive judgment remains incomplete and fragmentary, tributary to a problematic reading of
Kant's Third Critique. Other recent attempts to rephrase Rawlsian intuitions in the vocabulary
of Kant's theory of judgment are found in Seyla Benhabib, "Judgment and the Moral
Foundation of Politics in Arendt's Thought," Political Theory 16,1 (1988): 29-51 and Alessandro
Ferrara, Justice and Judgment (London: Sage, 1999).
116.1 refer here to the vocabulary used by Jacques Ranci?re, La M?sentente. Politique et
Philosophie (Paris: Galil?e, 1995) in an attempt to work out the political implications of
Kantian reflective judgment.

Miguel Vatter is an associate professor in the Institute of Political Science at the Pontificia
Universidad Cat6lica, Chile. He is author of Between Form and Event: Machiavelli's Theory
of Political Freedom (Dordrecht: Kluwer, 2000) and is currently working on a book-length
manuscript on Leo Strauss and political theology.

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