Menachem Mautner has posted a new paper at SSRN:
"Religion in Politics: Rawls and Habermas on Deliberation and Justification"
John Rawls’s concept of public reason lumps together a selection of political activities (voting, deliberation, decision-making) and a set of political institutions (legislatures, courts), without sufficiently distinguishing between them or identifying the distinct normative considerations that are relevant to each. Moreover, Rawls’s concept of public reason is very ambiguous. This over-inclusiveness and ambiguity of the concept has spilled over to much of the lively discussion of Rawls’s political liberalism.
I elucidate Rawls’s concept of public reason by recasting it in terms of two major concepts that are relevant to our understanding of the political: deliberation and justification. I argue that Rawls’s public reason should be read as having to do with justification rather than deliberation, and that Jurgen Habermas’s position on public reason is superior to that of Rawls in that it is premised on a clear distinction between deliberation and justification. However, some of Habermas’s critiques of Rawls are unjustified, and there is a contradiction in Habermas’s position.
I also argue that Habermas’s and Rawls’s positions epitomize “the anthropologization of politics” that follows from the substitution of the nation-state paradigm by the multicultural paradigm of the state. The rise of the multicultural paradigm also occasions “the anthropologization of courts”: liberal courts intervening in the cultural practices of non-liberal groups need to support their rulings with justifications internal to those groups, including justifications borrowed from the human rights doctrine.
Menachem Mautner is Professor of Comparative Civil Law and Jurisprudence at the Tel Aviv University.