Wojciech Sadurski (European University Institute – Department of Law) has posted ‘Reasonableness’ and Value Pluralism in Law and Politics on SSRN. Here is the abstract:
In law, the category of reasonableness, when used in a "strong sense", is inherently lined up with proportionality, and also with the test of necessity, and thus is a guarantee of a minimal restriction of constitutional rights compatible with the attainment of a given purpose. This approach to the scrutiny of restrictions of constitutional rights carries certain disadvantages because of an unfortunate alignment of the judicial role with the role of legislator, but it also has some great advantages when compared with alternative approaches: it is more transparent when it comes to revealing to the public all the ingredients of the judicial calculus, and most importantly, it reduces the sense of defeat for the losing party. As such, it is consensus-oriented because it acknowledges explicitly that there are valid constitutional arguments on both sides. In turn in political philosophy the notion of reasonableness applies to the determination of the standards of justifications for authoritative decisions so that they can be considered legitimate, i.e. calling for respect even from those subjected to them who do not agree with them on merits. The attractiveness of this idea results from the fact that it combines two enormously popular traditions in democratic theory: those of social contract and of deliberative democracy. So it can be seen that both these conceptions: reasonableness in law and reasonableness in political theory have some obvious commonalities at the level of their deep justifications; both appeal to liberal, egalitarian and consensus-oriented values.
And a bit more from the paper:
Rawls distinguishes between two contiguous concepts: rationality and reasonableness, as two separate moral powers which jointly constitute a full moral physiognomy of a human self.18 To say it very briefly, Rawls’s “reasonableness”: is about those moral capacities which allow us it to “propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so”,19 “rationality” in contrast applies to a single agent and is about forming, shaping, modifying and following our conception of the good. So to put it very simplistically, rationality is about the moral good for an individual person while reasonableness is about the moral bases of collaboration of an individual with the others, on the grounds whish are acceptable to others.
This last statement leads to the central category in Rawls’s political philosophy, namely Public Reason (PR) which is tied up with the liberal principle of legitimacy which postulates that only laws that are based upon arguments and reasons to which no members of the society have a rational reason to object can boast political legitimacy, and as such be applied coercively even to those who actually disagree with them. In Rawls’s words: ‘Our exercise of political power is fully proper only when it is exercised in accordance with the constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason’.20 This is based on a simple point: a law cannot claim any legitimacy towards me if it is based upon arguments and reasons that I have no reason to accept. The denial of legitimacy to such a law is based on the view that there must be some connection between the law and myself qua subject of the law – a connection that establishes some rational reasons to identify the good for myself in the law. The connection must be between the substance of the law and the preferences, desires, convictions or interests of each individual subjected to it. If, under rational examination, no such connection can be detected, then I have no reasons to accept the law as legitimate. If, however, I disagree with the wisdom of a given law but would agree that it is based upon arguments that I can recognize as valid, then a necessary condition for its legitimacy has been met. This point has been expressed well by Jeremy Waldron: ‘If there is some individual to whom a justification cannot be given, then so far as he is concerned the social order had better be replaced by other arrangements, for the status quo has made out no claim to his allegiance’.21 As is clear, the category of PR serves to limit the range of rationales – of reasons – which can be invoked to justify (hence, legitimize) the proposed uses of coercion towards individuals.
A very promising line of inquiry & highly recommended!
For my take on these issues from a somewhat differn angle, see Public Legal Reason.