.. laws are publicly justifiable when all members of the relevant ‘public’ have sufficient reason to accept them, whereby ‘having sufficient reason’ is taken to be relative to the individuals’ values and beliefs, not relative to some external standard
Why enact, or justify an existing, law if everybody already subscribes to values and beliefs such that they will abide by it?Consider my proposed law banning people from calling each other up in the middle of the night in order to recite the Sillapadikram backwards. Everybody already abides by its stipulation. It is a waste of resources to see it enacted though, no doubt, it is publicly justifiable and need not be repealed if it is already on the statute books.
It may be argued that there is some moral consideration which gives rise to a quite separate 'sufficient reason', for approving the Law I have proposed. It may be that 'respect for persons'- more especially Tambram retards like me- militates for the promulgation of this law.
On the other hand there may be a visceral moral objection to appeasing a repugnant imbecile seeking to validate his own gross superstitions and impious dreads.
In both cases, a new second order, albeit pro tanto, 'sufficient reason' has been created purely because of public justification of a proposed or established law.
In the interests of 'stability'- i.e. to prevent fractious discord- the best thing to do would be to exclude public justification of my law because nobody is breaking it anyway. Could there be a publicly justifiable general- that is 'constitutional'- law to this effect?
Fabian Wendt concludes his essay thus-
Let us for the moment imagine a comprehensive liberalism that does not include a principle of public justification. In that theory, we still have to accommodate different moral considerations that stand in tension with each other, since every plausible moral-political theory should acknowledge that there is a plurality of values to be considered. When assessing a law, we can ask how just it is, how effective it is, and so on. All these different considerations have to be taken into account before we can come to an all things considered judgment about the law. This makes moral thinking complicated, of course, and the issue of comparability of values is a serious one, but it does not lead to a split personality in any meaningful sense. Now the point is that public justifiability does not make moral thinking more difficult than it already is. It is just another consideration that is to be taken into account. The dichotomy between public justification and correctness-based justification stresses that there are two very different forms of justification, but this obscures the fact that public justifiability functions as one consideration among many other considerations within correctness-based justification, when it is integrated into a comprehensive liberalism. Here is the picture: on the first level in the evaluation of laws , we engage in correctness-based justification and evaluate laws in terms of their justice, fairness, efficiency etc., and we determine what the best law would be in light of these values. On the second level we take into account that others disagree about what the best law would be, and thus we consider moral values that become relevant under such circumstances of disagreement. Here, public justifiability comes into play as one such second-level moral value, and so public justifiability co-determines what the all things considered best law is within a correctness-based justification. Because public justifiability is just another moral consideration to be taken into account, it does not introduce any form of schizophrenia to our moral thinking. We can safely endorse a comprehensive liberalism and incorporate a principle of public justification.'
This means that even under the most favourable conditions- i.e. where there is an ubiquitous 'comprehensive liberalism' with a full theory of value- it would not be the case that 'constitutional laws'- i.e. laws about how laws are to be made or abrogated- could be publicly justifiable. This is because either there is no 'first level' efficiency filter- in which case my law has to be treated in the same manner as one which would filter it out- or else all second order moral considerations are effectually estopped unless they have no bearing on efficiency, justice, fairness etc and thus failed to be taken into account at the first level. But, in that case, they would have failed the first level test anyway.
For a truly Comprehensive Liberalism, Efficiency is all that matters. All rational agents would happily delegate determination of their 'sufficient reason' to an expert, if this could be done for free, and disintermediate themselves from the public justification process. This means that a Revelation principle obtains as does a Justice mechanism which needn't have a representation as a universal law code.
Either there is a 'mysterious economy' in which our Values and Beliefs cause us to affirm Faith or else nothing is, of its nature, secret or apophatic or too complex or computationally costly for utterance. In the former case, Public Justification is either foolish or otiose; in the latter, Values and Beliefs are either puerile or mischievous.