Academic

Bybee & Ghosh on Public Reason & Same-Sex Marriage

By Lawrence Solum

Keith J. Bybee and Cyril Ghosh (Syracuse University College of Law and Maxwell School and Syracuse University) hav eposted Managing Radical Disputes: Public Reason, the American Dream, and the Case of Same-Sex Marriage on SSRN.  Here is the abstract:

This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers possibilities for democratic deliberation that are different from those presented in the discourse on public reason. Ordinary people have strong opinions but their arguments are, more often than not, incompletely theorized - a fact that by no means indicates that such arguments are failures. We illustrate our argument by examining the ambiguous, fragmented use of American Dream talk in the debate over same-sex marriage.

As frequent readers of LTB know, public reason is one of my core interests.  For a quick introduction to public reason, see Legal Theory Lexicon 009: Public Reason.  Bybee & Ghosh argue that "the American Dream" could constitute an appropriate source of public reasons--but this seems doubtful to me.  First, it is not clear that "the American Dream" has well-formed content, as opposed understanding this notion as a rhetorical trope that takes on quite different meanings in different contexts.  Second, the notion of an "American Dream," insofar as it does have well-defined content seems to refer to a comprehensive conception of the good--a particular form of life that is distinctively American, but comprehensive conceptions of the good cannot be sources of public political values (and hence of public reasons), precisely because of the fact of reasonable pluralism.

Interesting paper.  Recommended.

Full post as published by Legal Theory Blog on August 25, 2008 (boomark / email).