Before discussing further our main question—whether we should respect equally real and fictitious public reasoning—we shall have a closer look at Kant's concept of reflective judgment. I shall argue that the willingness to apply this capability is decisive for qualifying as real public reasoning, and thus worthy of being tolerated.
The Universal of Reflective Judgment1
In Kant's conceptual scheme judgments are of two different kinds: either they are determinant, as when something particular is subsumed under universal laws, or, by contrast, “[i]f only the particular is given and the universal has to be found for it, then the judgment is simply reflective” (Kant 1952, Introduction IV:18). The purpose of reflective judgment is not to determine anything; rather, it is to give itself a law. Hence, validity is gained through reflection of something particular as opposed to subsuming something under universal laws. This is partly because judgment, which is the topic of investigation in his Third Critique, is about empirical contingencies and not about universal laws of nature or final ends of freedom.
Judgment is one among three cognitive faculties, the other two being theoretical and speculative reason (along with sensibility and understanding) in the First Critique, and pure practical reason in the Second Critique. Kant's own focal point in his treatment of judgment is taste and the sublime, and applies first and foremost to art, as distinguished from nature (pure reason) and freedom (practical reason). As such, judgment primarily concerns the aesthetic domain of feelings of pleasure and displeasure, as opposed to the faculties of cognition and desire. As such, pleasure and displeasure can never make claims to objective necessity or a priori validity:
As with all empirical judgments, [pleasure or displeasure] is, consequently, unable to announce objective necessity or lay claim to a priori validity. … [J]udgement of taste in fact only lays claim … to be valid for every one. … [O]ne who feels pleasure in simple reflection on the form of an object … rightly lays claim to the agreement of everyone, although this judgment is empirical ….2
The ground of this pleasure is found in the universal, even if subjective, condition of reflective judgment, according to Kant. One essential point is to be noted here: the judgment receives its validity from the anticipated agreement with every judging person.
The validity of judgments depends on the judging, and it is not valid for those who do not judge. Hanna Arendt puts this point forth, in emphasising that the claim to validity presupposes communication between self and others. Hence, a judgment's claim to validity can never extend further than the public realm of those who are members of it (Arendt 1968, p. 221). There are in particular two aspects concerning validity that should be noted here. One concerns the relation between the particular and the universal, whereas the other has to do with the public aspect of judgment. Any particular judgment is based in contingent and finite appeals that nevertheless may transcend the subjective conditions of the particular judgment. The potential for transcending the purely subjective condition is due to the communicative aspect of all judgments. Hence, reflective judgment is deeply founded in communication. For Kant himself reflective judgment is supposed to lay outside the political domain, whereas both Arendt and later Sheila Benhabib rightfully have argued that it should be extended to the faculties of politics and morality as well (Arendt 1968; Benhabib 1992).
To answer this challenge, we shall first have a look at Kant's own account. He introduces the concept sensus communis, which is a public sense and a critical faculty that takes account of the mode of representation in everyone else. This faculty is the power to make judgments for the purpose of public appeal, thereby avoiding the illusion that private and personal conditions are taken for objective:
This is accomplished by weighing the judgment … with the … possible judgments of others, and by putting ourselves in the position of every one else … [abstracting] … from the limitations, which contingently affect our own estimate (Kant 1952, § 40, p. 294).
This way of thinking in the place of everyone else is called enlarged thinking. The power of judgment rests on a potential agreement with others. Judgments derive their validity from this potential agreement. According to Arendt:
This means, on the one hand, that such judgment must liberate itself from the “subjective private conditions”, that is, from the idiosyncrasies which naturally determine the outlook of each individual in his privacy and are legitimate as long as they are only privately held opinions, but are not fit to enter the market place, and lack all validity in the public realm (Arendt 1968, p. 220).
Sensus communis may thus be compared to the procedure of universalization in the categorical imperative, which in a similar way appeals to a public sense through universalization.
The potential agreement with others along with the liberation from private subjective conditions is what enables intersubjective validity of judgments. The kind of communication at work in judgment is a different kind of relation between the particular and the universal. In Sheila Benhabib's words: “Judgment is not the faculty of subsuming a particular under a universal but the faculty of contextualizing the universal such that it comes to bear upon the particular” (Benhabib 1992, p. 132). I understand the “contextualizing of the universal” that Benhabib talks about as a claim to demonstrate how the universal appeal works in each particular context. As an example, a claim directed towards the authorities to make exceptions for some particular group of citizens may contextualise the universal by demonstrating how the particular case relates to other similar cases. Otherwise, contextualising the universal might appeal to others' imagination of putting themselves in the particular circumstances of others. Both Arendt and Benhabib agree on Kant's account of reflective judgment as far as the validity procedure for particular judgments are concerned. However, the kind of intersubjective validity that is derived should not only be restricted to the aesthetic domain of taste, as we have seen. The main reason why is due to the intersubjective appeal in all judgment that anticipates communication with others. Even if a person is alone in making up her mind, there is an anticipated communication with others with whom one must finally come to some agreement (Arendt 1968, p. 220).
The extension of reflective judgment to the public domain of reason in general is vital to the argument of this paper. One reason why is because legitimating of opinions in the public domain requires approval of other participants in the discourses and disputes going on. This might be interpreted either as agreement that an opinion is reasonable, or as actual agreement with some other's opinion. The main point here is the kind of approval contained in Habermas' theory that public opinion is moving towards increasingly stronger validity of public opinion rather than claiming actual agreement of opinions (Habermas 1990). Validity is then conceived as an on-going legitimating process whose ultimate arbiter is public reason itself.
-  Parts of this paragraph was first developed in Thorseth (2008).