¹ Feinberg, Joel, Harm to Others (New York: Oxford University Press, 1984), 9.Google Scholar

² Rawls, Justice as Fairness: A Restatement, Kelly, Erin, ed. (Cambridge, MA: Harvard University Press, 2001), 44Google Scholar.

³ John Stuart Mill, The Subjection of Women [1869] in The Collected Works of John Stuart Mill, J. M. Robson, ed. (Toronto: University of Toronto Press, 1965), vol. XXI, p. 262. See also John Stuart Mill, On Liberty [1859] in ibid., vol. XVIII, p. 299. In The Principles of Political Economy [1848] (ibid., vol. III, p. 938) Mill presents a formulation focused on law.

⁴ Locke, John, Second Treatise of Government in Two Treatises of Government [1689], Laslett, Peter, ed. (Cambridge: Cambridge University Press, 1960), sect. 4, p. 287Google Scholar.

⁵ Benn, Stanley I., A Theory of Freedom (Cambridge: Cambridge University Press, 1988), 87.CrossRefGoogle Scholar

⁶ See, for example, Baier, Kurt, The Moral Point of View: A Rational Basis of Ethics (Ithaca: Cornell University Press, 1965)Google Scholar, chap. 10; Baier, The Rational and the Moral Order (La Salle, IL: Open Court, 1995), 157; Strawson, Peter, “Social Morality and Individual Ideal,” Philosophy 36 (1961): 1–17;CrossRefGoogle Scholar David Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986), 269; Gerald Gaus, The Order of Public Reason (Cambridge: Cambridge University Press, 2011), chap. I; David Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986), 269.

⁷ See Nichols, Shaun, Sentimental Rules (Oxford: Oxford University Press, 2004)CrossRefGoogle Scholar. For other ways to distinguish moral from other social norms, see Bicchieri, Cristina, Norms in the Wild (New York: Oxford University Press, 2017)CrossRefGoogle Scholar, chap. 3; Geoffrey Brennan, Lina Eriksson, Robert E. Goodin, and Nicholas Southwood, Explaining Norms (Oxford: Oxford University Press, 2013), Part I; Gaus, The Order of Public Reason, chap. IV.

⁸ Baier, The Moral Point of View, 195–96.

⁹ On the relation of challenge to justification, see the enlightening analysis of Wellman, Carl, Challenge and Response: Justification in Ethics (Carbondale and Edwardsville: Southern Illinois University Press, 1971)Google Scholar.

¹⁰ See Bicchieri, Cristina, The Grammar of Society: The Nature and Dynamics of Social Norms (New York: Cambridge University Press, 2006), 20–21Google Scholar; Nichols, Shaun, “Emotions, Norms, and the Genealogy of Fairness,” Politics, Philosophy and Economics 9 (2010): 275–96.CrossRefGoogle Scholar

¹¹ Forst, Rainier, ”Political Liberty” in Autonomy and the Challenges to Liberalism, ed. Christman, John and Anderson, Joel (Cambridge: Cambridge University Press, 2005), 226–42, at 230CrossRefGoogle Scholar. Reference deleted; emphasis in original.

¹² Forst, “Political Liberty,” 242. Emphasis in original. Stephen Macedo appears to have similar qualms, maintaining that “[a]n account of basic liberties is itself a product of the justificatory enterprise . . . . No general presumption of liberty as non-interference forms a prior baseline.” (“Why Public Reason? Citizens’ Reasons and the Constitution of the Public Sphere,” 13. Available at: http://ssrn.com/abstract=1664085). Macedo’s reference to “basic” liberties makes it more difficult to interpret his complaint. A system of morality that accepts a principle of natural liberty (including the Full-fledged Liberal Principle) can insist that important, basic, liberties such as freedom of speech are specially justified, and that is why they are morally protected (a view that, indeed, Rawls seems to take). In relation to, say, freedom of speech, one not only possesses a blameless liberty to speak in public, but a claim right to do so. Macedo’s deep worry, like Forst’s, seems to be that the Minimal Principle of Natural Liberty attributes to Alan a blameless liberty to ϕ that is itself exempt from the need to be morally justified, and that unacceptably biases the moral system toward liberty rather than, say, equality or claims of justice, which do face the burdens of justification. Jonathan Quong has similar worries. See his “Three Disputes about Public Reason: Commentary on Gaus and Vallier,” www.publicreason.net/wp-content/PPPS/Fall2008/JQuong1.pdf.

¹³ See Wesley N. Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” (1917). Yale University, Faculty Scholarship Series, Paper 4378.

¹⁴ For his overall Kantian-inspired theory see Forst, , The Right to Justification: Elements of a Constructivist Theory of Justice, trans. Flynn, Jeffrey (New York: Columbia University Press, 2011)Google Scholar.

¹⁵ Another, less common, route may be via a communal egalitarianism, according to which membership in a “justificatory community” commits one to advancing a justification when pressed. See G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008), 44.

¹⁶ Hillinger, Claude and Lapham, Victoria, “The Impossibility of a Paretian Liberal: Comment by Two Who Are Unreconstructed,” Journal of Political Economy 79 (1971): 1403–1405, at 1403–4.CrossRefGoogle Scholar See also Rowley, C. K. and Peacock, A. T., Welfare Economics: A Liberal Restatement (London: Martin Robertson, 1975), 82–83Google Scholar. Both of these criticism are based on a type of utilitarianism. Hillinger and Lapham, as well as Rowley and Peacock, are responding to Amartya Sen’s Principle of Minimal Liberalism. Sen objects to these responses on the grounds that “Everyone’s right to do anything whatsoever is made conditional on non-opposition by others . . . .” “Liberty, Unanimity and Rights,” Economica, New Series, vol. 43 (1976): 217–45, at 227. In our case, we might say “No one can do anything whatsoever unless they first have moral approval.”

¹⁷ There are special complications here concerning purely consequentialist theories of blame. The core of the distinction between objective and subjective rightness/wrongness is that between actions that objectively do maximize utility and those which, given the person’s beliefs and information, could be rationally expected to promote utility. See Smart, J. J. C., “An Outline of a System of Utilitarian Ethics” in Smart, J. J. C. and Williams, Bernard, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973), 3–74, at 30ffCrossRefGoogle Scholar.

¹⁸ Rawls, John, “Justice as Fairness” in John Rawls: Collected Papers, ed. Freeman, Samuel (Cambridge, MA: Harvard University Press, 1999 [1958]): 47–72Google Scholar.

¹⁹ Baier, The Moral Point of View, 195.

²⁰ See Rawls, John, “The Independence of Moral Theory,” in John Rawls: Collected Papers, ed. Freeman, Samuel (Cambridge, MA: Harvard University Press, 1999), 286–302, at 286Google Scholar.

²¹ See May, Kenneth O., “A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision,” Econometrica 20 (1952): 680–84, at 681.CrossRefGoogle Scholar

²² For a discussion, see Sen, Amartya, On Ethics and Economics (Oxford: Blackwell, 1986), 66ffGoogle Scholar.

²³ See Bicchieri, Cristina and Chavez, Alex, “Norm Manipulation, Norm Evasion: Experimental Evidence,” Economics and Philosophy vol. 29, special issue 2 (2013): 175–98;CrossRefGoogle Scholar Bicchieri, Cristina and Mercier, Hugo, “Self-serving Biases and Public Justifications in Trust Games,” Synthese 190 (2013): 909–922.CrossRefGoogle Scholar

²⁴ Rawls, John, A Theory of Justice, rev. ed. (Cambridge, MA: Harvard University Press, 1999), 115–16CrossRefGoogle Scholar. In specifying the desiderata for a social morality, Rawls accepts a version of Baier’s teachability requirement (113n).

²⁵ This supposes that it makes sense to talk of the function of morality. For a defense of this claim, See Gaus, “On Dissing Public Reason,” Ethics 125 (2015).

²⁶ See Gaus, , The Tyranny of the Ideal: Justice in a Diverse Society (Princeton, NJ: Princeton University Press, 2016) chap. IGoogle Scholar.

²⁷ As Agatha Christie’s Hercule Poirot says in a teleplay “Cricket. The English enigma. I know not of any other game where even the players are unsure of the rules.” In February 1981, Australia was playing a one-day match against New Zealand. With one ball (for Americans, “pitch”) left, New Zealand was six runs behind. Only if the New Zealand batsman hit a six (out of the boundary on a fly) could New Zealand tie; they could not win. Australian captain Greg Chappell instructed his brother Trevor to bowl under-armed, essentially rolling the ball to the New Zealand batsman, making it impossible for him to hit a six. At the time this was held officially deemed permitted by the rules, but caused a furor that eventually involved the Australian prime minister, and was a major blemish on Chappell’s career. He had violated an unwritten rule that clashed with the written rules. It was permitted by the rules but was not cricket.

²⁸ It is not generally the case that a rational person will be paralyzed by undercomplete preferences, as Sen’s analysis of Buridan’s ass illustrates: it is often rational to select from a maximal set of undominated options. Even if the ass cannot rank the relative attractions of eating the hay to the right or left, it can know that either is better than starving so it ought to select one. But that is not the case when one seeks to conform to a deontic system: here one really would be unable to choose what act is consistent the rules. This case also should be distinguished from a social choice problem where we are trying to choose what set of rules to follow among a maximal set of alternative systems of rules. See Sen, “Maximization and the Act of Choice,” in his Rationality and Freedom (Cambridge, MA: Harvard University Press, 2002), 158–205, at 181ff; GausGoogle Scholar, The Order of Public Reason, 303ff.

²⁹ Rawls, A Theory of Justice, 300–301.

³⁰ As Gilbert Harman argues, the ideal of a belief system that is deductively closed, or complete under logical implication, is neither required by rationality nor realistic for humans (Reasoning, Meaning and Mind (Oxford: Clarendon, 1999), 21–23).

³¹ Mikhail, John, The Elements of Moral Cognition: Rawls’ Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge: Cambridge University Press, 2010)Google Scholar, sect. 6.3.1. We are thus translating a requirement to ϕ as a prohibition on failing to ϕ.

³² See, for example, Shafto, Patrick, Goodman, Noah, and Griffiths, Tom, “A Rational Account of Pedagogical Reasoning: Teaching By, and Learning from, Example,” Cognitive Psychology 71 (2014): 55–89.CrossRefGoogle Scholar

³³ Ibid., 65.

³⁴ Responses in the permission-training condition did not differ significantly from chance, but responses in the prohibition-training condition did (one sample t-test t(59)=3.65, p<.001). All subjects were recruited through Amazon’s mechanical turk. There were 114 subjects in the first study, 45 female.

³⁵ Responses in the permission-training condition did not differ significantly from chance, but responses in the prohibition-training condition did (one sample t-test t(28)=2.53, p=.017). There were 49 subjects, 26 female.

³⁶ This experiment draws on Cummins, Denise Dellarosa, “Evidence for the Innateness of Deontic Reasoning,” Mind and Language 11 (1996): 160–90;CrossRefGoogle Scholar “Evidence of Deontic Reasoning in 3- and 4-year-olds,” Memory and Cognition 24 (1996): 823–29.

³⁷ There were 188 subjects, 82 female.

³⁸ On the tendency of normative life to reconceive continuous categories into dichotomous ones that induce the agent to make a choice, see Benn, S. I. and Gaus, G. F., “The Liberal Conception of the Public and Private,” in Benn and Gaus, eds., Public and Private in Social Life (New York: St. Martin’s Press, 1983), 31–65Google Scholar.

³⁹ Permission versus prohibition: t(53)=10.2, p<.0001; permission versus mixed: t(67)=6.98, p<.0001; prohibition versus mixed: t(68)=2.05, p<.05. There were 93 subjects, 39 female.

⁴⁰ At least some of the participants explained their answers in ways that conform to pedagogical sampling. Here are a few examples:

⁴¹ Mill, On Liberty, 261. See also Muldoon, Ryan, “Expanding the Justificatory Framework of Mill’s Experiments in Living,” Utilitas, available on CJO2015. doi:10.1017/S095382081400034XCrossRefGoogle Scholar.

⁴² Hardin, Russell, “From Bodo Ethics to Distributive Justice,” Ethical Theory and Moral Practice 2 (1999): 399–413, at 401–2CrossRefGoogle Scholar. See also Hardin, “The Priority of Social Order,” Rationality and Society 25 (2014): 407–421, at 411ff.

⁴³ Hardin, Russell, Indeterminacy and Society (Princeton, NJ: Princeton University Press, 2003), 98Google Scholar.

⁴⁴ Hardin, Indeterminacy and Society, 98. In “The Priority of Social Order” Hardin is more hospitable to norm-based ordering.

⁴⁵ Hardin, Indeterminacy and Society, 98.

⁴⁶ Federal Communications Commission, Report and Order on Remand, Declaratory Ruling, and Order http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0312/FCC-15-24A1.pdf

⁴⁷ See Benn, A Theory of Freedom, 289–91.

⁴⁸ Mill, On Liberty, vol. XVII, 267.

⁴⁹ See The Discovery and Development of Penicillin, 1928–1945 (Royal Society of Chemistry and American Chemical Society, 1999).

⁵⁰ “Reforming Cuba,” The Economist, May 16, 2015.

⁵¹ Hayek, F. A., The Constitution of Liberty (London: Routledge, 1960), 31Google Scholar.