Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy

Rawls and Habermas

Rawls and Habermas reason, pluralism, and the claims of political philosophy

Todd Hedrick

stanford university press Stanford, California 2010

Stanford University Press Stanford, California © 2010 by the Board of Trustees of the Leland Stanford Junior University All rights reserved Chapter 7, Section 3 and Chapter 8, Sections 1, 2, and 4 were originally published in Philosophy and Social Criticism 36, no. 2 (2010): 183–208. ©SAGE Publications 2010. Reprinted with permission. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Library of Congress Cataloging-in-Publication Data Hedrick, Todd. Rawls and Habermas : reason, pluralism, and the claims of political philosophy / Todd Hedrick. p.  cm. Includes bibliographical references and index. isbn 978-0-8047-7076-7 (cloth : alk. paper)— isbn 978-0-8047-7077-4 (pbk. : alk. paper) 1.  Political science—Philosophy.  2.  Rawls, John, 1921– 2002.  3.  Habermas, Jürgen.  I.  Title. ja71.h3499    2010 320.01—dc22 Printed in the United States of America on acid-free, archival-quality paper Typeset at Stanford University Press in 10/13 Galliard

2009044480

Acknowledgments

This book would have never been possible without the generous assistance of a great many colleagues and teachers over the years. I owe the most oversized debt to Thomas McCarthy. Tom has read every version of this manuscript, and his relentless attention to detail, professional savvy, good humor, and support were invaluable. I only hope this work reflects to some degree the quality of his advice. I would also like to thank Cristina Lafont and Terry Pinkard: both repeat readers, excellent critics, and stimulating conversation partners, from whom I learned a great deal. It was an honor and a pleasure to work with Charles Taylor and Jürgen Habermas, who were very helpful and encouraging, and whose friendliness and approachability belied their stature. For helping to shape my thought over the years on the issues discussed in the following pages, through conversation and correspondence, thanks to (in no particular order) Bradford Cokelet, Jeffrey Flynn, Melissa Yates, Jonathan Garthoff, Matthew Steilen, Sebastian Rand, Jason Leddington, Laura Reagan, Torrey Shanks, Amy Allen, Chad Belfor, Crina Archer, and Ben Rutter. I am no doubt omitting some people, for which I apologize. Thanks to my editor at Stanford, Emily-Jane Cohen, for all of the considerable effort she devoted to shepherding this book into the light of day. I am especially grateful to Kenneth Baynes and Simone Chambers for reviewing the entire manuscript and forcing me to make it better through their challenging and insightful commentaries. Earlier versions of sections of Chapters 7 and 8 appeared as “Coping with Constitutional Indeterminacy: Rawls and Habermas,” Philosophy and Social Criticism 36, no. 2 (2010): 183–208, reprinted with permission from SAGE Publications.

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Acknowledgments

For helping me, with care and counsel, to sustain confidence that my path was a worthwhile one, I owe the deepest debt to my family: my brother Tyson Hedrick and my grandmother, Ellen Sax. I dedicate this book, with love and gratitude, to my parents, Nancy and Mike Hedrick, for reasons too numerous to mention.

Contents

Abbreviations  ix Introduction  1

1. Freestanding Political Philosophy and the Descriptivist Critique of Rawls  17



2. The Rawlsian Apparatus of Justification  34



3. Rawls between Metaphysics and Proceduralism  61



4. Procedure and Substance, Construction and Reconstruction   81



5. Discourse Theory and the Constitutional Democratic State   103



6. Proceduralism and Functionalism in Habermas’s Theory of Law and Democracy   125



7. Rawls and the Critique of Constitutional Contractarianism  149



8. Habermasian Constitutional Theory  166



9. Conclusion: Idealizations and Power  184

Notes  197

Works Cited  225



Index  237

Abbreviations

The following abbreviations have been used in the text for frequently cited works.

works by rawls TJ

PL R CP JF

A Theory of Justice. 1st edition. Cambridge, MA: Harvard University Press, 1971. Revised edition. Cambridge, MA: Harvard University Press, 1999. I cite the first edition, followed by the revised edition where it is different. Political Liberalism. 2nd edition. New York: Columbia University Press, 1996. “Reply to Habermas.” In Political Liberalism, 372–434. Collected Papers. Edited by Samuel Freeman. Cambridge, MA: Harvard University Press, 1999. Justice as Fairness: A Restatement. Edited by Erin Kelly. Cambridge, MA: Harvard University Press, 2001.

works by habermas CES

Communication and the Evolution of Society. Translated by Thomas McCarthy. Boston: Beacon Press, 1979. TCA 1 Theory of Communicative Action, volume 1: Reason and the Rationalization of Society. Translated by Thomas McCarthy. Boston: Beacon Press, 1984.



Abbreviations

TCA 2

Theory of Communicative Action, volume 2: Lifeworld and System: A Critique of Functionalist Reason. Translated by Thomas McCarthy. Boston: Beacon Press, 1987. MCCA Moral Consciousness and Communicative Action. Translated by Christian Lenhardt and Shierry Weber Nicholsen. Cambridge, MA: MIT Press, 1990. PT Postmetaphysical Thinking: Philosophical Essays. Translated by William Mark Hohengarten. Cambridge, MA: MIT Press, 1992. BFN Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Translated by William Rehg. Cambridge, MA: MIT Press, 1996. RS “Reply to Symposium Participants.” In Habermas on Law and Democracy: Critical Exchanges, 381–452. Edited by Michel Rosenfeld and Andrew Arato. Berkeley: University of California Press, 1998. IO Inclusion of the Other: Studies in Political Theory. Edited by Ciaran Cronin and Pablo de Greiff. Cambridge, MA: MIT Press, 1998. LM “Law and Morality.” In The Tanner Lectures on Human Values, volume 8. Edited by S. M. McMurrin. Salt Lake City: University of Utah Press, 1988.

Rawls and Habermas

Introduction

The hopeful intuition that the realization of political ideals like freedom or justice is deeply connected to the rational organization of society, such that the rational society would also be the just society, has been a touchstone in much of the history of Western political thought, at least among philosophers of a more high-minded sort. So long as philosophers retain trust in the soundness of this linkage, inquiry into the nature of the just society could be conceived of as a fundamentally rational enterprise, with a normatively desirable goal shared by rational beings. However tantalizing, such lines of thought have for some time now been in disrepute. Whether in the form of deconstruction, skepticism about “metanarratives,” concerns about Eurocentrism, scientistic reductions, or positivistic attacks on “metaphysics,” for well over a century Western philosophy has been pervaded by doubts about reason: its universality, its impartiality, its ability to guide human practice authoritatively. Given the centrality of the concept of reason to philosophy throughout its long existence, this could not help but transform its various subfields, and political philosophy has been no exception. On both sides of the Atlantic, as a result, much of the twentieth century has often been seen as a fallow period for political philosophy. While admirers of Louis Althusser, Isaiah Berlin, Leo Strauss, Hannah Arendt, and Michael Oakshott no doubt consider this a crude or misleading generalization, what is less contestable is that systematic projects like those of classical social contract theories or the sweeping philosophies of history of the nineteenth century lost much of their plausibility, and were replaced by an agenda dominated by more local projects, preoccupied not only with the waning force of universal reason but also with the moral and (eventual)



Introduction

geopolitical failure of the Soviet Union, and the apparent lack of viable alternative models of political organization to liberalism and capitalism.1 This work is a study of two giant figures in recent political thought— John Rawls and Jürgen Habermas—who have resisted and, in some important respects, reversed these trends. It addresses the merits and limitations of their contributions to the field of political philosophy: its proper scope and object, its method, its point, and the conditions of its very possibility as a rational enterprise. By way of introduction, then, I ought to say something about why these two philosophers—and these two in particular—deserve to be singled out for shaping our understanding of such matters in a way that is not only important and influential in some generic sense but also unique, original, and path breaking. Rawls’s and Habermas’s significance as political philosophers may, I would argue, be characterized in the following manner:

• Both are self-consciously post-Kantian thinkers in the sense that they ad• •

here to the maxim that in order to make critical use of reason, one must have a theoretically grounded sense of its capabilities and limitations. They both hold that reason in the modern era is somehow less authoritative and prescriptive than philosophers in earlier eras have often taken it to be. They both nevertheless undertake projects in political philosophy comparable in scope and aims with the systematic projects of the eighteenth and nineteenth centuries—projects that employ more or less universalistic conceptions of reason in order to articulate an impartial perspective for the normative evaluation of political orders considered as wholes— but with appreciably deflated conceptions of reason.

Of course, this is not the only perspective from which one might launch a study of Rawls and Habermas: one might focus instead on their shared neo-Kantianism, or view them as deliberative democracy theorists.2 Although reading them as deliberative democracy theorists is certainly plausible and in many ways instructive, it does not, I would contend, fully account for their unique stature in contemporary political thought, or their connection to each other. As for their neo-Kantianism, my interpretation of both Rawls and Habermas is one that, for different reasons, de-emphasizes the role of Kant. In fact, although I will make the point only obliquely, the interpretations of Rawls and Habermas on offer here underline their Hegelianism: in Rawls’s case, this is because of the importance he places on using public reason to reconcile opposed private worldviews at the higher



Introduction

level of political justice.3 With regard to Habermas, I see him essentially siding with Hegel against Kant by maintaining that reason cannot be realized monologically, and in order to be actual, must be mediated by social activity; this lies at the center of Habermas’s insistence that validity requires the execution of actual discourses, and hence his proceduralism, which features prominently in my interpretation of him. Rather than viewing them, in the first instance, as neo-Kantian moralists or deliberative democrats, I propose to read Rawls and Habermas as philosophers—that is, as figures that have given a great deal of thought to the concept of reason, its powers and limits, the kind of justification of political power and principles it can offer, its ability to connect and reconcile, to criticize existing social and political conditions, and to structure and guide political practice. The lasting influence of Rawls and Habermas (if it is not presumptuous to think that they will have one) lies in the fact that they are advancing conceptions of political philosophy that genuinely do recall the systematic, reason-based aspirations of political theory in the Western tradition, while acknowledging that objective, substantive conceptions of reason are no longer available for such purposes. The largest question at stake in this work, therefore, is whether this form of theory is possible (or even desirable) under changed conditions. While it is true that, in my judgment, the Rawlsian and Habermasian projects are not equally successful, they are both plausible and powerful, and I aim to answer this question in the affirmative. In the remainder of this introduction, I will provide a brief primer on the respective intellectual contexts out of which Rawls and Habermas emerge, and the sense in which they have both been credited with “revitalizing” political philosophy (1). I will then discuss the three intertwined aspects of Rawls’s and Habermas’s methodological innovations in political philosophy mentioned above: their continuity with the Kantian critique of reason (2), their employment of relatively modest or deflated conceptions of reason (3), and their efforts to recapture the systematic aims of modern political philosophy (4). I close with an overview of the book’s argument (5).

1. narratives of revitalization In discussions of Rawls’s and Habermas’s work that describe their place in the history of political thought, one often encounters words and





Introduction

phrases like “revitalized” or “revived interest in the field,” “charted a new course,” “led out of a dead end,” and the like. Given their vastly different backgrounds, they cannot jointly, of course, be said to “revitalize” political philosophy as such, but rather to do so within their respective milieus: Rawls within Anglo-American political thought and Habermas within the Frankfurt School’s Left Hegelian brand of critical social theory. There is, however, a significant and quite suggestive overlap in the manner in which they reformulated both the aims and methods of political thought. These reformulations mirror each other in important ways, as I detail in the next section, and have made conversations between Anglo-American liberalism and European critical theory much more feasible than it has been in decades past, as evidenced by the celebrated 1995 exchange between Rawls and Habermas in The Journal of Philosophy (one of the only substantive public exchanges that Rawls ever engaged in), in which Habermas characterizes the issues between himself and Rawls as “a family quarrel” (IO, 50). And if it is true that Habermas has done more to accommodate his thought to Rawlsianism over the years than vice versa, the meeting of minds between the two would not have been possible in the first place had not Rawls, like Habermas, been preoccupied with the task of pursuing a justificatory project in political philosophy with a modest conception of reason at his disposal, manifested in his concern—the overriding concern of his postTheory work—to render the content and conclusions of A Theory of Justice in a “non-metaphysical manner.”4 Why were the Anglo-American and critical theory traditions in political thought both thought to be in need of such a transformation? Rawls, according to a dominant narrative, arrived on a philosophical scene in which consequentialist analyses of political, legal, and moral issues were often seen as the only credible normative perspective available. The utilitarian tradition, with its stripped down metaphysics, emphasis on calculability and allegedly tangible human goods such as pleasure or happiness, as opposed to otherworldly ones such as purity or salvation, adherence to principle or duty, and the like, has appeared to many to be better suited for the modern, scientific world. In contrast, Platonic, Aristotelian, Stoic, Thomist, and Kantian ethical systems seem much more dependent upon some kind of suspicious metaphysics of the cosmos or the subject. In short, Rawls emerged in a philosophical climate leery of morally loaded perspectives on complex entities like societies as a whole. For his part, though, Rawls contends that the utilitarian tradition is subject to intractable difficulties, and he remains one of its most trenchant critics.5 He is subsequently credited



Introduction

with articulating a plausible Kantian, contractualist alternative to the dominant utilitarian paradigm, thereby putting big questions about obligation and the justice of the social order back on the table, without leaning on metaphysically laden conceptions of the subject and social order.6 Habermas, according to a similarly dominant narrative, is the successor to a first generation of Frankfurt School critical theory whose culminating statement is normally identified with Max Horkheimer’s and Theodor Adorno’s Dialectic of Enlightenment—a work that, on Habermas’s view, is enigmatic and problematic, insofar as Horkheimer and Adorno argue that reason in the modern era has become essentially calculative or instrumental in nature, oriented toward the manipulation of objects.7 Hence, the application of reason to human life (through science, technology, markets, and bureaucracies—the various manifestations of the general phenomenon that Max Weber calls “rationalization”) is ultimately synonymous with domination, reification, and control. Given this, it becomes difficult to see how reason could be employed as a critical standard for identifying normative deficits in society, if those alleged deficits are, in fact, engendered by reason, not to mention how those who subscribed to Horkheimer’s and Adorno’s systematic conclusions could rationally justify their own critical standpoint, and how they could condemn this domination and reification, if reason is just instrumental reason, and its sway over human life is as complete as the authors suggest.8 Habermas, by arguing that rationality is located in the purportedly universal structures of human communication, and not merely in ongoing efforts by human beings to use reason to extend their mastery over nature9, is able to maintain that the possibilities of achieving mutual understanding between persons made possible by communicative reason continues to have emancipatory potential, and he ultimately extends this theory into a discursive conception of democracy by linking the democratic process to a legally mediated process of communication among citizens.10 It should be noted that neither the Rawlsian nor the Habermasian “revitalization” narrative is universally accepted: there are certainly those who argue that pre-Rawlsian Anglo-American political thought was not as moribund as Rawlsians often assume and, for that matter, that the Rawlsian sway over political philosophy’s agenda for the last several decades (which is undeniable) has not been healthy.11 And the dialectical and “disclosive” form of critique employed by Horkheimer and Adorno continues to have its share of practitioners, many of whom tend to be suspicious of Habermas’s “communicative turn” in critical theory (along with the friendly relations it establishes with analytic philosophy of language and political lib-





Introduction

eralism).12 Nevertheless, these narratives have exercised considerable sway over the theoretical imaginations of political philosophers and commentators on both sides of the Atlantic over the past several decades. But these thumbnail sketches of Rawls’s and Habermas’s respective paths to prominence beg the questions: why did systematic ambitions in political thought seem to be in trouble? And what did Rawls and Habermas do to revive them?

2. political philosophy and the critique of reason Much of the reason that Rawls’s and Habermas’s attempts to engage in systematic justificatory projects have been so impressive and well received is that the conception of reason thought to be available nowadays for engaging in philosophical analysis and justification has diminished in scope and power. Since Kant’s time, modern reason has been understood as reason that puts itself on trial, by reflecting on its own ability to answer the questions it raises. In order to make valid, normatively binding claims, we must be aware of the nature and extent of reason’s authority, lest we overstep its bounds and end up in contradictions. One of the lessons that Rawls and Habermas absorb from this is that a foundationalist model of justification is unfeasible. On a foundational model, the justification of a particular claim (whether an action’s rightness, a law’s worthiness to be obeyed, a proposition’s truth, and so forth) adduces the grounds that lend that claim its authority. Eventually, the foundationalist contends, the chain of justification must terminate on some ground that is self-satisfying by virtue of being intrinsic to our reason, indisputable, or unrenounceable (for example, the ultimate moral worth of human beings or the incorrigibility of certain sensory experiences). Otherwise, the foundationalist argues, justification is subject to infinite regress, and not a justification at all. A foundationalist project in political philosophy is, then, one that claims to identify an ultimate normative source for the legitimacy of law and state power, and/or particular forms of social organization—for example, a fundamental contractual agreement, natural law, utility, God’s will, and the like. During the continuing critique of reason in the nineteenth and twentieth centuries, the belief that reason is capable of unearthing or discovering within itself such universal, a priori knowable foundations in ethics or epistemology has declined, and “foundationalism” has become a term of abuse. Rawls’s and Habermas’s reasons for concluding that a foundationalist



Introduction

project in political philosophy is no longer viable are not identical, though they have similar implications. Habermas’s reasons are theoretical: he is in broad agreement with the critique of philosophical foundationalism and metaphysics, and holds that reason is essentially procedural—that is, reason authoritatively prescribes processes for determining the validity of beliefs and action norms, but cannot anticipate the outcomes of those processes.13 Rawls’s reasons for rejecting foundationalism are more practical: if, as Rawls forcefully argues, the point of political philosophy is to articulate a framework for legitimate politics that all reasonable persons can subscribe to, then foundational claims about the nature and status of such a framework are self-destructive, because an unforced agreement about the ultimate foundations of political morality is unattainable in a free and pluralistic society (PL, 36–37, 134–45). Rawls and Habermas agree that reason does not contain within itself, nor does it have access to, a concrete blueprint or picture of the good or just society. For Habermas, there simply is no such thing as a blueprint; for Rawls, if there were, it would not be the kind of thing that citizens could agree on and therefore not the kind of thing they may use in public justification.

3. reason and systematic political philosophy How were Rawls and Habermas able to renew political philosophy as a systematic, rational enterprise with critical potential, at a time when such a thing was (and still is) for the most part thought to be impossible, or, if not impossible, at least implausible or old fashioned? Those that admire Rawls’s or Habermas’s body of work tend to share the sense that they make possible a form of theory consonant with the systematic aspirations of the modern Western tradition of political philosophy, spanning roughly from Grotius and Hobbes, and the subsequent giants of natural right and social contract theory, through Hegel, Marx, and Mill in the nineteenth century—aspirations that have often more recently been thought no longer to be achievable given the antimetaphysical bent of so much twentiethcentury thought, and the deflated conceptions of reason (or the rejection of reason’s authority) associated with that broad movement. Of course, it would be specious to contend that there is much in the way of a shared aspiration or methodology among approaches as diverse as social contract theory, modern natural law, Millian utilitarianism, and the various versions of Hegelian, Marxist, and Western Marxist social theory and philosophy





Introduction

of history. With that rather large caveat in mind, we might nevertheless venture that these various approaches do make universalistic, or at least fairly sweeping, normative assessments about societies as a whole, or even modernity as a whole, while conceptualizing societies as political, legal, cultural, and/or economic wholes. That is, reason is thought to offer a perspective that impartially comprehends social totalities or historical epochs and assesses them in terms of their justice, legitimacy, or normative trajectory. At the risk of flattening the gamut of very real differences between these various models of political thought, the point I would like to make here is that these kinds of “big questions” have been increasingly difficult to engage in the contemporary period. Early in Between Facts and Norms, Habermas declares that philosophy is faced with a pair of handicaps as it attempts to gain critical purchase on contemporary political society. The first is a problem of reason failing to grasp the complexity of its object: The practical philosophy of modernity continued to assume that individuals belong to a society like members to a collectivity or parts to a whole. . . . However, modern societies have since become so complex that these two conceptual motifs—that of a society concentrated in the state and that of a society made up of individuals—can no longer be applied unproblematically. (BFN, 1–2)

Put another way, from a sociologically enlightened perspective, it is rather benighted to suggest that there is some basic normative relationship between persons that serves to stitch modern societies together; what Rawls calls the legally mediated “political relation” between citizens cannot be considered the central integrating mechanism of modern societies. Here, the postmodern image of society as decentered and porous rears its head, suggesting that there is no object for political philosophy to grasp and judge.14 The second handicap that Habermas perceives concerns reason itself: “[Practical reason] no longer provides a direct blueprint for a normative theory of law and morality” (BFN, 5). Reason, Habermas asserts, does not possess in itself content that can be translated into a concrete vision of the just society; if reason is still prescriptive (and Habermas thinks that it is), it can be so only in an attenuated manner: “In the classical modern tradition of thought, the link between practical reason and social practice was too direct” (BFN, 3). In Rawls’s work, these sorts of metalevel reflections on the fate of reason in the modern age are largely absent. Nevertheless, one finds in Rawls the same sort of disillusionment with pretensions of what Habermas calls “the practical philosophy of modernity,” in particular in Rawls’s distinctions between the “comprehensive” and the “political,” on the one hand,



Introduction

and between “the rational” and “the reasonable” on the other. Comprehensive reason—reason that outlines a worldview, that reveals truth, that links what we should believe, what we should do, and how we should live to a privileged source of normative authority—still has its adherents, and Rawls does not go so far as to say (as Habermas sometimes does) that it is discredited. Indeed, Rawls expects that most of us do individually possess some “comprehensive doctrine,” incompletely and inconsistently worked out as it might be (PL, 165). But, in pluralistic modernity, comprehensive reason has lost its power to persuade the public and, along the way, loses its ability to convincingly articulate the normative basis of citizens’ political relations to one another: “In such a society, a reasonable comprehensive doctrine cannot secure the basis of social unity, nor can it provide the content of public reason on fundamental political questions” (PL, 134). Indeed, Rawls suggests that the power of comprehensive reason to provide such an account can only be based on just that—power—and not on any intrinsic capacity of reason to persuade: citizens can rally around a comprehensive account of political justice only in a relatively closed society that is not exposed to or does not tolerate pluralism, where, as Habermas puts it, consensus is not “achieved” but “normatively ascribed.” Seriously addressing the “big questions” from the tradition of modern political philosophy concerning the justice or injustice of basic social structures, and the basis of political obligation and legitimacy, appears to require theoretical machinery that is increasingly hard to come by—namely, a conception of reason that is at once universalistic, substantive or contentful, and practice orienting. That is, reason that (a) can claim binding normative authority over all rational beings and that transcends all particular contexts, (b) designates certain outcomes (for example, action norms, principles of justice, forms of social organization) as more rationally desirable than others, and (c) is capable of translating its content into a program for political action, be it in terms of revolutionary praxis, a blueprint for the good or just society, a constitutional design, or a reform agenda. Combining all three of these elements in single, comprehensive account of reason is an exceedingly tall order in the present context. Given this, it is unsurprising that the post–World War II period has witnessed a proliferation of projects that, while not less ambitious, nevertheless have a decidedly local, perspectival, contextual, or relativistic flavor to them, not to mention the emergence of approaches that simply eschew deep justificatory questions altogether. We might think here of genealogical approaches (Nietzsche, Foucault, Butler) that abjure universalism, while



10

Introduction

retaining critical, but not prescriptive, intent; the moody politics of withdrawal offered by Adorno or Alasdair MacIntyre, which view reason as having no panacea to offer a fallen present; and contextualist (Rorty, Walzer) or “common sense” approaches, which address normative political issues without feeling compelled to support their claims by justifying a more abstract normative framework.

4. nonmetaphysical and procedural conceptions of reason One of the central tasks of this work is to argue that Rawls and Habermas are advancing conceptions of political philosophy that genuinely do recall the systematic, reason-based aspirations of political theory in the Western tradition, while acknowledging that objective, substantive conceptions of reason are no longer available to us. This implies that they have broken with these contemporary trends toward local, nonuniversalistic models of criticism. Not everyone, however, would agree that Rawls and Habermas ought to be interpreted in this way. Both have been variously suspected of smuggling in or tacitly assuming metaphysical premises in order to support their normative claims, of devolving into a kind of contextualism, or simply failing to coherently articulate a rationally justified critical standpoint. According to some readings, especially of his later work, Rawls’s approach is ultimately just another kind of contextualism: an account of what a certain group of liberally minded North Atlantic people who fancy themselves to be “reasonable” happen to be able to agree upon. While some (such as Rorty) intend this characterization of Rawls’s work as praise, many others see Rawls either as not actually providing a normative account of politics at all, or as unjustifiably valorizing his own North Atlantic, liberal political culture. While it is true that Rawls attempts to operate with a conception of reason (or rather, “the reasonable”) that is not avowedly universalistic, these impressions of the contextual character of Rawls’s work are belied by the fact that it retains a strong normative, prescriptive, critical bent. I argue that, although there is some serious tension between the more Kantian aspects of Rawls’s theory (in particular, his claims about the “constructivist” status of his two principles of justice) and the “political, not metaphysical” account that he gives of his methodology, Rawls is neither a closet natural rights theorist nor a simple contextualist content to articulate local moral-political intuitions. The major question that I raise with regard to Rawls’s work is whether his theory can be prescriptive and ac-



Introduction

tion-orienting, while abandoning universalism, and the major critique that I offer of Rawls amounts to the claim that he cannot. His work represents an inspired effort to produce authoritative principles of political justice and social criticism without assuming a “context transcending” perspective.15 It is an effort that I argue, in the end, fails to negotiate this tension. This critique is not intended, however, to take away from the instructive, indeed revolutionary, aspects of Rawls’s theory, in particular his challenging ideas about method and justification in political theory. The fact that the most intriguing portions of Rawls’s work are focused on these methodological and justificatory concerns shows, in my view, that the way that the Rawlsian aftermath is often interpreted is mistaken: for many, a major lesson to be drawn from Rawls is that political philosophers simply do not need to engage with more abstract philosophical issues—such as epistemic issues concerning rationality and justification, and metaphysical questions concerning the nature of rights and the human subject—that it is sufficient to begin with a consistent reconstruction of “our” moral intuitions and directly address moral and political problems. This interpretation of Rawls’s methodological contribution underlies much philosophy done in the philosophy-and-public-affairs mode.16 But there is a danger here. Certainly, a major thrust of modern political theory that Rawls represents, in a way, a culmination of, is the effort to show that reasonable and civil political relations, public argument and justification, can take place using a political vocabulary (of rights, civic duties, democratic values, and the like) that people with very different ethical and religious worldviews may make use of. But if we simply refuse to interrogate the meaning and validity of these concepts, they threaten, as Jeremy Waldron puts it, “to degenerate into a sort of lingua franca in which moral and political values of all or any kinds may be expressed.”17 Rawls invites us to think of justification in political philosophy in new ways, not simply to disregard it. He does intend the principles of justice as fairness to serve as the public language that citizens of different backgrounds and faiths use to address one another, but it is important that it not be just a kind of empty shorthand meaning whatever its various users and addressees want it to. He writes: Justice as fairness aims at uncovering a public basis of justification on questions of political justice, given the fact of reasonable pluralism. Since justification is addressed to other, it proceeds from what is, or can be, held in common; and so we begin from shared fundamental ideas implicit in the public political culture in hope of developing from them a political conception that can gain the free and reasoned agreement in judgment. (PL, 100–101).18

11

12

Introduction

While this quotation might be called on to support the view that “methodological Rawlsians eschew the idea of justification simpliciter in favor of justification to,”19 it does not imply that justification is simply a case-by-case matter of persuading a unique addressee, and that there is nothing methodological and normative that philosophy can say about the process. I do not see it as a favorable interpretation of Rawls to hold that, at the end of the day, his concept of “the reasonable” is arbitrarily defined as whatever those that we choose to regard as reasonable believe. The reasonable must serve to constrain the uses to which the public vocabulary of political liberalism may be put. Although I argue that Rawls ultimately has a difficult time making this point, I do think that it is one that he would like to be able to make. As for Habermas, few will dispute that he is defending an ambitious, universalistic theory of rationality. But there are serious doubts about its plausibility, or whether it has any practice orienting implications. Habermas is attempting to lay out a systematic and normative account of the democratic constitutional state with a conception of reason that largely abandons substance—that is, that abandons the notion that reason possesses content which can be ascertained via reflection alone. This lack of substantiality will prove to be the major sticking point in our evaluation of Habermas, as critics frequently inveigh against the allegedly “empty formalism” of his thought: if communicative reason essentially prescribes a process for the evaluation of actions and norms but lacks substance, and if the same is true of the conceptions of morality and democracy that Habermas links to it, then his theory is vulnerable to the charge of being free of content, of indiscriminately placing its normative stamp of approval on any outcome whatsoever, just so long as it emerges from some discursive process.20 The main question for Habermas in this work is whether his theory can be practical and action-orienting without being substantive; the defense of an interpretation of Habermas’s theory that I offer herein amounts to the claim that it can. This interpretation of Habermas’s program runs counter to the legion of critics who fault him for the abstract formality of his theories. It is also contrary to a group of Habermasians, as well as deliberative democratic theorists, who are generally sympathetic to Habermas’s approach but deny that his theory is committed to a thoroughgoing proceduralism. It is possible, I concede, to pick up on certain threads in Habermas’s writings to argue that he presupposes a substantive, basically Kantian account of autonomy, which subsequently serves as the telos of reason, morality, and democracy. Against this I argue that Habermas’s theory indeed is a highly procedural account of democracy, and legal and



Introduction

political legitimacy, and not surreptitiously based on a substantive conception of moral autonomy, as some of his defenders contend. A superior alternative to this Kantian interpretation is one that is not apologetic about the procedural character, based on Hegelian insights concerning the need for social activity (discourse, in Habermas’s case) in order to make the universal concrete.

5. overview This work is not intended as a general overview of either Rawls’s or Habermas’s philosophy.21 I am assuming of an English-speaking audience some familiarity with Rawls’s basic concepts (for example, the two principles of justice, the veil of ignorance, the original position). I offer more exposition on Habermas, especially in Chapters 4 and 5, but do not delve into his theory of universal pragmatics, upon which much of his approach is ultimately based,22 and I tread lightly over his social theory (for example, the system/lifeworld distinction). Also, I focus more on Rawls’s Political Liberalism (along with some of the earlier papers announcing the “political turn” and his later writings on public reason) than A Theory of Justice. The latter work, however, is the one most often canonized as Rawls’s masterpiece; whatever one thinks of Political Liberalism, it is rarely referred to as reverentially. And, of course, the relationship between these two books— for example, how much tension there is between them, how much of the political turn is latent in Theory, how much of Theory’s content Political Liberalism repudiates, and so forth—is a huge issue in Rawls scholarship. In general I try not to take a position on these questions, although that is not always possible—as, for example, when I consider the role of the original position argument in Rawls’s later work. Suffice it to say that my own view is that although there are, as Rawls himself readily admits, methodological differences between Theory and Political Liberalism, it is not altogether implausible to see the political turn as making explicit some of Rawls’s ideas in Theory concerning justification, and that Political Liberalism is as interesting and original as Theory, though in a different way, being more focused on the methodological question of how the content of justice as fairness should be represented. I have also already indicated that I am not a neutral mediator of the issues between Rawls and Habermas. Although I defend Rawls against a number of objections to his approach, in the end, I do regard it as flawed. And although Habermas’s theory has its share of problems and needs to be

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Introduction

interpreted in a certain way (perhaps not the most obvious one, and one that does make certain concessions to the Rawlsian position), I consider it to be superior. On balance this is more of a Habermasian than a Rawlsian work, and I do not know how many Rawlsians will be convinced by what I have to say. But, of course, the objective is not simply to show that Habermas is right, and Rawls is wrong, but to see what can be learned by looking at how two extraordinarily impressive thinkers have confronted the prospect of conducting a certain kind of ambitiously systematic philosophical project in a philosophical climate that is in many ways ill disposed toward it. Since I eventually argue that Habermas’s theory may fruitfully be read as overcoming some of the deficits that I locate within the Rawlsian approach, I begin, in the first three chapters, with an examination and critique of Rawls. Chapter 1 outlines Rawls’s political turn and his view that justice as fairness should be thought of as a “freestanding” theory, and considers a set of objections to this conception of theory, which I call the descriptivist critique. The next two chapters are to a large extent devoted to evaluating the seriousness of this critique and the degree to which Rawls’s theory is vulnerable to it. Chapter 2 offers the most detailed exposition on Rawls; it lays out his main justificatory concepts: overlapping consensus, public reason, reflective equilibrium, and political constructivism. I argue that the relationship between this constellation of concepts is complicated, but that it is difficult to see why Rawls’s constructivist procedure (the original position), or its results (the conception of justice as fairness), would be normatively binding. Chapter 3 develops this further by arguing that, ultimately, there is an unresolved tension between the Kantian and “political, not metaphysical” elements in Rawls’s mature thought; the essentially factical, or descriptive, underpinnings of his theory prove insufficient to support the role of a shared, critical standpoint that Rawls would like to claim for his conception of justice. I then turn to interpretations of Rawls’s project, by Ronald Dworkin and Charles Larmore, that try to resolve this tension by shoring up the moral foundations of his theory. I argue that such a move, although enticing, is ultimately incompatible with Rawls’s very clear commitment to pluralism, and nonfoundational, nonmetaphysical political philosophy. The normative impetus of Rawls’s thought might be preserved (albeit in a modified form), I suggest, by offering it a basis in procedural rationality. This, of course, moves one to turn to Habermas. Chapter 4 introduces Habermas’s method, contrasting his reconstructive, postmetaphysical approach to Rawls’s nonmetaphysical constructivism in a way that alerts us to the fact that the methodological differences be-



Introduction

tween Rawls and Habermas are significant enough to make direct comparisons problematic. I also discuss here Habermas’s account of “the discourse principle,” and his conception of philosophy as an enterprise that takes up the dual task of rationally reconstructing communicative structures and developmental processes, and interpreting the perspective of participants in human social practices. Chapter 5 deals with the reconstructive end of Habermas’s political theory: the daunting argument, laid out primarily in chapter 3 of Between Facts and Norms, in which Habermas attempts to arrive at a normative account of individual rights and democracy by combining the discourse principle with “the legal form.” After addressing some preliminary concerns about the cogency of this argument, I turn, in Chapter 6, to a very serious worry—namely, the objection raised from a number of perspectives to the effect that the heavily formal and procedural character of Habermas’s account of the democratic constitutional state’s infrastructure is objectionable, and objectionable on Habermas’s own terms, since it is at odds with the self-understanding of participants in democratic practices. I defend Habermas with an interpretation that incorporates some Rawlsian elements into his theory, and that links it tightly to a particular conception of legal constitutionalism which emphasizes the democracy-enabling aspects of constitutionalism over its constraining aspects. I dub accounts of constitutionalism that stress the latter container theories, and in Chapter 7, I argue (a) that Rawls endorses a container theory of the relationship between constitutionalism and democratic legitimacy, and (b) that container theories are problematic and replicate many of the problems with Rawls’s approach discussed in Chapter 3. Chapter 8 gives a fuller interpretation of what I take to be the rejection of container theories of constitutionalism implicit in the best interpretation of Habermas’s theory of law and democracy. This interpretation finally allows him to calm the serious doubts about the normative credibility of non- and postmetaphysical approaches to systematic political philosophy. In a brief, concluding Chapter 9, I offer some thoughts on how the interpretations of Rawls and Habermas on display here allow them to overcome the common, and more global, objection that their attempts to reanimate systematic political philosophy involve an idealized, otherworldly conception of politics that has little to do with the realities of power in actual political communities.

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chapter one

Freestanding Political Philosophy and the Descriptivist Critique of Rawls

In this chapter, I begin by outlining the basic methodological difference between Rawls and Habermas that Rawls draws our attention to in their exchange: the difference between “freestanding” and “comprehensive” theories. Rawls charges Habermas with being a comprehensive theorist, which implies that he is vulnerable to the same objection that Rawls levels against predecessors like Kant and Mill. Habermas bases his theory of constitutional democracy on a “deep” account of the sources of normativity, using his theory of communicative rationality to locate it in the idealizations that he argues are presupposed and tacitly accepted by all participants in linguistically mediated communication aimed at mutual understanding. This “comprehensive” theoretical edifice, Rawls contends, puts Habermas in the company of Kant and Mill, who base their accounts of liberalism on the values of autonomy and individualism, respectively. All three represent ways of justifying liberalism or constitutional democracy that are inherently controversial. It is possible that one of these accounts is true, and all three represent ways in which reasonable individuals might, for their own part, understand liberal principles to be justified. But a liberal society cannot expect a consensus on basic values, and so Habermas’s theory cannot form a public basis for social cooperation and reciprocal justification—the task that Rawls insists is the central task for political philosophy—any more than Kant or Mill can. After laying out this argument, I turn to explore some of the possible negative consequences of this “political turn,” elaborating a broad critique of Rawls that I will be calling the descriptivist critique. The next two chapters are, then, largely concerned with trying to understand the extent to which the descriptivist critique is true.

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Freestanding Political Philosophy

1. freestanding and comprehensive theories Rawls and Habermas follow the social contract tradition in Western political thought in their focus on issues of justification. And a cursory glance at the content of the 1995 Rawls-Habermas exchange shows that the really pivotal differences between them circle around questions of justification. Both philosophers can be read as articulating what I will be calling frameworks of justification. Frameworks of justification are sets of principles, norms, criteria, or values that have a dual function: (a) they may be used to assess the legitimacy of the products of the lawmaking process, and (b) citizens may use the framework to offer justifications to their fellow citizens for their proposed uses of political power. There is, then, an active and a passive sense in which justification takes place through a framework of justification. On the one hand, Rawls and Habermas hold that a framework ought potentially to enable citizens to understand the laws whose coercive power they are subject to as legitimate (passive)—that is, if our laws are somehow made within the recommended normative framework, we should be able to see ourselves as having good reason to follow them.1 This point is clearly captured by Rawls’s “principle of liberal legitimacy”: [O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in light of principles and ideals acceptable to their common human reason. (PL, 137)

On the other hand, a framework of justification should be something that citizens can use (active) in order to justify themselves—their votes, policy preferences, exercises of political power, and so forth—to their fellow citizens, in terms that their fellow citizens can (or, at any rate, ought to) accept, so that their politically mediated relations to one another are transparent and mutual. This, for Rawls, is what the practice of public reason promises to do. In this context, the most obvious difference between Rawls and Habermas is that they propose different kinds of frameworks of justification: for Rawls, a framework of justification consists in the political conception of justice. He argues that a well-ordered society would be one in which citizens understand that the basic terms of social cooperation are set by a conception of justice that they all accept. The conception of justice that Rawls proposes for this purpose is “justice as fairness,” which, of course, consists in a first principle guarantying a maximal scheme of equal basic liberties for



Freestanding Political Philosophy

all, and a second principle securing fair equality of opportunity, and that regulates inequalities such that they are justified only to the extent that they are to the advantage of society’s least advantaged (the difference principle) (JF, 42–50). Habermas’s framework of justification, on the other hand, is what he calls “the system of rights,” which will be discussed in later chapters. We need to examine the issue of how Rawls and Habermas conceive of a framework of justification being justified to those that are to use them (that is, us) and be subject to political power exercised through them, and this returns us to questions about the conception of reason most appropriate to political philosophy. In his reply to Habermas, Rawls clearly delineates these two issues (which type of framework? how do we justify a framework?) and makes it clear that, in his view, the latter is of greater significance. He draws two pivotal distinctions between Habermas’s theory and his own (R, 373). First, and most important, he says that Habermas’s theory is a “comprehensive doctrine,” whereas his is “freestanding” or merely “political.”2 So, Habermas’s theory is alleged to depend on a comprehensive doctrine, along with all of the baggage that such a thing entails, whereas Rawls claims that his theory depends only upon a conception of the reasonable, which can be embedded in a variety of comprehensive doctrines. Secondly, and derivatively, the “device of representation” that Habermas uses to identify valid norms is an “ideal speech situation” developed out of the theory of communicative action, whereas Rawls uses the original position, which can, on his account, be articulated independently of any comprehensive theory of morality and validity. So, each generates his framework of justification using a different device. Rawls is correct that the first difference is more fundamental, because, if we accept his distinction between comprehensive and freestanding theories, along with his arguments about what each kind of theory is capable of doing, it would defuse the issues between Rawls and Habermas, making Rawls the victor by default. On Rawls’s view, the validity of a conception of justice ultimately depends on its reflective acceptance by reasonable citizens—a theory of justice is valid only if, at the end of the day, it meshes with their considered moral-political intuitions. Since we currently lack such a consensus in our political culture, our job as philosophers is to characterize “the reasonable,” using this concept to determine the conception of justice that would be most appropriate and mutually agreeable for persons like us. According to Rawls, whatever kind of theory Habermas’s is, it cannot be authoritative, inasmuch as people need not accept the theory that

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supports it in order to qualify as reasonable: reasonable people with convictions different than Habermas’s may reject the rather open ended and procedural conception of rationality associated with Habermas’s theory of communicative action.3 For Rawls, philosophy ought not to take issue with the moral intuitions of persons who are prepared to abide by fair terms of social cooperation, as this unwarranted scrutiny undermines political philosophy’s practical task of articulating a reasonable consensus. Thus, if one hopes to marshal any support for Habermas’s position, one would have to take issue with Rawls’s presentation of the first basic difference. For as much as he found it useful to work through major thinkers of the past, Rawls’s distinction between “freestanding” and “comprehensive” political theories, and his abandonment of the latter in favor of the former, is a radical one that seems to mark a break with the main enterprise of Western political philosophy, if we understand that as a full account of the best, the true, or otherwise most correct principles and institutional arrangements that ought to govern our social and political lives. Although Rawls rejects this project, he does so not because he regards the task of providing a philosophical answer to the question of what “the best” society is to be impossible in principle—to decide even this metatheoretical question one way or another would not be to stay “on the surface, philosophically speaking” (CP, 395). His motive is the practical one of seeking a transparent and genuinely mutual basis for social cooperation among citizens with widely divergent comprehensive views (that is, different ethical values, life projects, religious beliefs, and so forth), and this task cannot be accomplished by a theory that takes sides on fundamental ethical questions. Even before the publication of Political Liberalism, Rawls’s shift from truth to reasonable agreement as the goal of inquiry was made abundantly clear. As he puts it in “Justice as Fairness: Political Not Metaphysical”: [T]he aim of justice as fairness as a political conception is practical, and not metaphysical or epistemological. That is, it presents itself not as a conception of justice that is true, but one that can serve as a basis of informed and willing political agreement between citizens viewed as free and equal persons. (CP, 394)

According to Rawls, “the burdens of judgment” and “the fact of reasonable pluralism” lead reasonable persons to conclude that we can expect no eventual convergence among comprehensive views of the good life within what Rawls calls “the background culture” of democratic societies, and therefore that forging social unity based on adherence to a single comprehensive doctrine can be accomplished (if at all) only through the use of coercive state power (PL, 36). The burdens of judgment are defined as “the



Freestanding Political Philosophy

many obstacles to the correct (and conscientious) exercise of reason and judgment in the ordinary course of political life” (JF, 35). These include the following: the difficulty in evaluating evidence relevant to practical issues, as well as the weight to assign to various considerations; the indeterminacy and vagueness of our moral-political conceptions, making them “subject to hard cases”; and the difficulty in assessing the degree to which differences in total life experience are responsible for differences in judgment, as well as the complicated matter of determining the degree to which those differences are epistemically legitimate. Reasonable persons who recognize these burdens will acknowledge that agreement about moral and political issues is hardly inevitable, and that differences in judgments and comprehensive doctrines are not to be blamed on errors of reasoning. Reasonable persons also recognize that “reasonable pluralism” among comprehensive doctrines is the natural outcome of the public exercise of reason, over time, in a free society.4 A modern democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but a pluralism of incompatible yet reasonable comprehensive doctrines. . . . Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime. (PL, xviii)

The fact of reasonable pluralism is, Rawls argues, a permanent feature of modern societies with “free institutions” (for example, freedom of conscience, religion, press, expression, and the like). While the development within such free institutions of what Rawls calls our “rational” moral power to articulate for ourselves and pursue over the course of our lives a conception of the good will lead different individuals in different directions, as persons also in possession of the “reasonable” moral power of an “effective sense of justice” (JF, 9; PL, 35), they are willing to propose and abide by fair terms of social cooperation—moreover, as reasonable, they “desire for its own sake a social world in which they, as free and equal, can cooperate on terms all can accept” (PL, 50). They desire, in other words, a “well ordered society.” A society is well ordered if “(1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles” (TJ, 5/5). Rawls, of course, proposes his two principles of justice to fulfill that role. But the upshot of these considerations, Rawls is convinced, is that the

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presentation and justification of the conception of justice “should be, so far as possible, independent of controversial philosophical and religious doctrines” (CP, 388). Unlike Kant or Mill, who affirm principles of liberal justice because they see them as grounded in a comprehensive conception of value or rightness, the Rawlsian political philosopher practices “the method of avoidance” (CP, 395) and makes no such appeals, but rather presents the principles of justice as a consistent extension of reasonable moral intuitions that makes mutually beneficial and transparent social cooperation possible, leaving it ultimately to the citizens themselves, as private individuals, to determine their ultimate reasons for accepting the political conception. A cursory glance at Rawls’s and Habermas’s bodies of work largely confirms Rawls’s assessment of their different metatheoretical orientations. While Theory does have deep roots in the history of Western political thought, claiming to complete the work of Locke, Rousseau, and Kant by developing the social contract’s basic insight at a “higher level of abstraction” (TJ, 11/10), one can see that Rawls has a robust sense of the independence of political philosophy from the rest of philosophy, and while he is not shy about borrowing from disciplines as diverse as economics, rational choice theory, moral and analytic philosophy, and linguistics, he works this material up from a standpoint where the results of these rather more esoteric fields of inquiry can be made comprehensible to reasonable people with different worldviews. That is, he is mining these materials in order to illustrate justice as fairness and lend plausibility to its justification, but the theory in its essentials is supposed to depend on only general psychological and sociological knowledge, available both to the deliberators in the original position and to reasonable citizens, here and now. Rawls comes to stress the independence of political philosophy to the point of declaring that it must extend the principle of tolerance to the rest of philosophy (CP, 394–95). Thus, the justification for liberal democratic constitutionalism is not supposed to depend upon any particular views about the foundations of ethics, any particular metaphysics, epistemology, or philosophical anthropology, and it is supposed to be compatible with any number of theoretical positions. In this spirit, deflationary figures like Richard Rorty have embraced Rawls, and one can see the Rortian thesis that theoretical enterprises simply do not matter, morally and politically speaking, as an extension of this thought.5 Although Rawls has never endorsed anything like Rorty’s deflationary pragmatism, it is not hard to understand how his thought could be seen as being of a piece with Rorty’s.6 It is, however, more sensitive to the



Freestanding Political Philosophy

spirit of Rawls’s work to say that the results of theoretical enterprises that cannot, after due reflection, be reconciled with a plurality of reasonable comprehensive doctrines ought not to be appealed to in public discourse. One can think of Rawls as urging those engaged in theoretical enterprises that they take to have some bearing on public issues to frame their research and their results in a manner that would be amenable to the plurality of reasonable worldviews among which the business of public justification occurs.7 This Rawlsian point sounds quite sensible and, at least at first blush, casts Habermas in an unflattering light. Whereas Habermas appears to be a traditional philosopher in a pejorative sense—one attempting to ground principles for politics (a domain where disagreement reigns) on the basis of some ultimate truth—Rawls is at his most convincing when he argues that political justifications cannot proceed by rationally intuiting principles and values that not all reasonable people would regard as intuitive. It may be that the principles of constitutional democracy and human rights are amenable to theoretical, even universalistic, justification. But does it seem like a good idea to frame political justification in terms of theories that are abstruse and controversial? Would it not be better simply to regard human rights, the rule of law, and democracy as “fixed points” of our political culture, and be leery of theories that call them into question, as our basic principles may be amenable to a variety of more or less valid theoretical justifications? Why not leave it at that? Habermas’s manner of taking issue with Rawls’s freestanding position is to attempt to lure him into an epistemological debate, by compelling him to admit that his concept of the reasonable implies philosophical commitments on issues of truth and validity: In my view, Rawls must make a sharper distinction between acceptability and acceptance[.] . . . [If] Rawls rules out a functionalist interpretation of justice as fairness [that is, an interpretation whereby the justification of a conception of justice is equated with the conception’s capacity to promote stability and social cooperation—T.H.], he must allow some epistemic relation between the validity of his theory and the prospects of its neutrality toward competing worldviews being confirmed in public discourses. (IO, 63)

Rawls replies that political liberalism may indeed rest content with merely ascribing to the reasonable an attitude of reflective tolerance: Habermas maintains that political liberalism cannot avoid the questions of truth and the philosophical conception of the person[.] . . . I do not see why not[.] . . . I believe the main lines of the distinction between the reasonable and both

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Freestanding Political Philosophy the true and the rational are clear enough to show the plausibility of the idea of social unity secured by a reasonable overlapping consensus. Certainly people will continue to raise questions of truth and the philosophical idea of the person and to tax political liberalism with not discussing them. In the absence of particulars, these complaints fall short of being objections. (R, 395)

While Habermas is hardly the only critic to invoke reservations of this sort about Rawls’s political turn, Rawls flatly rejects the criticism. Because understanding and assessing this idea of a theory that is freestanding, political, and nonmetaphysical is essential to an evaluation of the nature and success of Rawls’s enterprise, I will press this idea hard over the course of the next few chapters. To set up this line of inquiry, and to anticipate the coming discussion of Habermas’s approach, we can note at least a surface resemblance between Habermas’s and Rawls’s methodologies and the normative sources that inform their theories, despite the seemingly daunting gulf between their freestanding and comprehensive approaches. Both share what I will be calling a broadly contractualist intuition captured in Kant’s dictum: “[Reason] has no dictatorial authority, but whose claim is never anything more than the agreement of free citizens.”8 Of course, Habermas denies that his project can be characterized as a social contract theory, but the intuition that he and Rawls broadly share is that reason’s claims do not impose themselves upon us from the outside; free, rational persons do not experience the strictures of rationality as something they are forced to obey. Rather, rational thought is emancipating and quite at odds with experiences of coercion, and so reason’s authority must arise from principles that reasonable and rational persons recognize and assent to; normative authority is conferred by the worthiness for recognition that a norm or principle can claim from free and rational beings. The difficulty of developing a political theory compatible with the contractualist intuition is in giving an account of what makes a norm worthy of assent, such that normative authority does not collapse into empty decisionism or voluntarism, where what is valid is simply whatever people decide is valid, while still respecting the antimetaphysical contractualist intuition. Both Rawls and Habermas attempt this, and both have occasionally emphasized this basic similarity. Rawls (R, 377) underscores it when he quotes the following passage from Between Facts and Norms: Discourse theory attempts to reconstruct this normative self-understanding [that is, universalistic moral consciousness and democratic constitutionalism— T.H.] in a way that resists both scientistic reductions and aesthetic assimilations[.] . . . After a century that, more than any other, has taught us the horror of existing unreason, the last remains of an essentialist trust in reason have been



Freestanding Political Philosophy destroyed. Yet modernity, now aware of its contingencies, depends all the more on a procedural reason, that is, a reason that puts itself on trial. The critique of reason is its own work: this double meaning, first displayed by Immanuel Kant, is due to the radically anti-Platonic insight that there is neither a higher nor a deeper reality to which we could appeal—we who find ourselves already situated in our linguistically structured forms of life. (BFN, xli)

Rawls says that he could assert something similar: he aims to offer justifications for a conception of justice that does not depend upon “the higher” or “the deeper,” but merely upon the reasoned agreement of citizens in a given political culture. He adds, however, that his theory leaves it up to individuals themselves to determine whether and how they want to justify principles—not publicly, but to themselves—in a “higher” or “deeper” manner; that is, most persons will be inclined to ground the conception of justice in their own comprehensive doctrine.9 This is the most fundamental way in which Rawls considers his theory to be more modest than Habermas’s: it does not seek to make justice as fairness part of a comprehensive view, nor tackle the question of whether it is therefore true or right in any emphatic sense. This points to a further, quite interesting difference: whereas Rawls believes that, however inapplicable “higher” or “deeper” doctrines are for the purposes of public justification, persons will most likely consider the ultimate justification for conceptions of justice (that is, the most basic reasons they have for regarding it as authoritative) to be dependent upon “the higher” or “the deeper” in one way or another. Political philosophy ought to remain agnostic about whether such emphatic truth claims are plausible, much less whether any one particular comprehensive view constitutes the one true moral source of justice as fairness. Habermas, on the other hand, although he would presumably not deny that much “metaphysical” thinking persists in our time, seems to be of the mind that higher or deeper justifications are becoming untenable and are losing their power in the modern age.10 From a Rawlsian perspective, this nicely sums up a serious problem with Habermas’s political philosophy: not only does he embroil himself in intellectual controversies about the fate of reason and metaphysical worldviews in modernity,11 but by doing so, he forecloses the possibility that his theory could serve as a public framework of justification, inasmuch as reasonable persons with relatively more “enchanted” worldviews will find themselves excluded from it. Rawls would agree with the following criticism aired by Charles Larmore: I should emphasize that the main point in the present context is not whether Habermas’ conception of reason is correct, but whether it can serve as an appropriate basis for establishing the terms of our political life. These two questions

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Freestanding Political Philosophy must be distinguished, once we are convinced that political association turns crucially on finding principles reasonable people can accept despite their disagreements about fundamental matters of life and value. In seeking a solution to this political problem, we cannot call upon all that we ourselves may reasonably believe to be true about such matters. Habermas gives little attention to the difference between these two perspectives. That no doubt is why he runs them together.12

Rawls thinks that Habermas’s philosophy is too philosophical, meaning that it enters into conflicts that it does not need to, and thereby undermines the contractualist intuition that informs it. On the other hand, Habermas clearly aspires to develop a critical theory that can account for its own normative sources. If Rawls does not have such a theory, he would argue, it is because his approach is more descriptive than normative and thus, it cannot account for its own normative authority.13 Indeed, as I shall eventually argue, Rawls’s particular brand of philosophical modesty proves his undoing: by leaving it to citizens to determine for themselves how justice as fairness fits into (and is justified by) their comprehensive doctrine, we also leave it to them to determine what that conception means in practice and how it is to be applied—again, according to the logic of their own comprehensive doctrine—and the political conception fails to serve as a framework through which such disagreements among comprehensive doctrines may be legitimately mediated. Before attempting to make this point, however, we must elaborate and evaluate what I am calling the descriptivist critique of Rawls.

2. the descriptivist critique This section presents the criticism that Rawls’s insistence that justice as fairness be presented in a manner that is acceptable to a plurality of comprehensive doctrines, on their own terms, has caused his theory to move in what amounts to a highly accommodationist direction. The worry is that this move makes the justification for justice as fairness ambiguous and its content indeterminate. This brand of criticism has a number of more specific versions that concern Rawls’s egalitarianism and views on distributive justice. G. A. Cohen has long argued, for example, that because Rawls makes the application of the difference principle dependent on what he takes to be facts about people’s unwillingness to make socially optimal uses of their talents in the absence of incentives (such as wealth, power, and prestige), its implications are either less egalitarian than they seem or simply indeter-



Freestanding Political Philosophy

minate.14 Others have argued that Rawls’s egalitarianism seems to depend on “reasonable” people actually having stronger egalitarian intuitions than they in fact do, and therefore cannot be defended on the terms he sets for himself.15 Since I am focusing on methodological and not distributional issues, I aim here to present this type of criticism at a more general level. In the wake of the “political turn” in Rawls’s thought—inaugurated in the early 1980s, institutionalized in Political Liberalism, and extended in his final papers on public reason—both sympathizers and critics have worried that this metatheoretical reorientation transforms Rawls’s theory of justice into more of a description of the beliefs that reasonable liberals are likely to settle on, over time and with due consideration, than a prescriptive, normative theory about what conception of justice ought to be applied to the basic structure of society. Hence my label for this line of thought as the descriptivist critique of Rawls.16 Some think that Rawls’s theory has become a pragmatic form of advocacy that merely gauges what reasonable persons are likely to accept, which suggests that we should tailor our normative proposals accordingly, while others hold that Rawls’s revised methodology makes him simply unable to support the kind of normative claims he would like to make. As I shall later indicate, I believe that the case for the latter criticism is much stronger, but for the moment I will aim to capture the common denominator underlying both points. It is often argued that Rawls’s political turn diminishes his theory’s normative, or critical, power. This may initially strike us as an odd claim, since Rawls has, throughout his writings, defended virtually the same two principles of justice, and those principles set exacting standards, involving a scheme of equal rights and the priority of those rights (the first principle of justice), and fair equality of opportunity and a distribution of goods that would, on most interpretations of the difference principle, amount to a substantial departure from the pattern of resource distribution prevalent in today’s industrial and postindustrial democracies (the second principle). Indeed, given that Rawls favors what he calls “property owning democracy” over liberal capitalism as a means for implementing the second principle of justice, his theory appears quite critical of the existing system of production and distribution (JF, 135 and following). One might even argue that Rawls’s later philosophy is still more normatively demanding, as it tacks on a further layer of duties, associated with the idea of public reason, that obligate democratic citizens to justify their advocacy and use of political power in terms that refer to public, political values, rather than the whole truth as they see it. All of these principles and duties would seem to establish critical

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standards against which our actual political practices and institutions could be judged and found wanting. Thus, if there is anything to the claim that Rawls’s later political philosophy has lax critical standards—or, put another way, that its normativity is ambiguous—it may be because Rawls’s political turn leads him to defend his conception of justice in an equivocal manner. We can give voice to this set of worries about the normative status of Rawls’s conception of justice by considering the following argument made by G. A. Cohen.17 Cohen advances the general metaethical thesis that what he calls “fact-sensitive principles”—that is, principles that are tailored to reflect certain facts, such as facts about human nature or facts about modern societies—can be valid only in light of principles that are “fact-insensitive.”18 To take a well-worn example, consider the principle, One ought not to lie. When casting about for principles to support this imperative, we might offer up the following: social cooperation is possible only if people (usually) can be trusted to tell the truth. Although this factual premise helps to explain why lying is socially problematic, it does not take long to realize that it cannot establish the validity of the principle by itself. Appealing to a factual premise in this way can provide support for the principle in question only by presupposing that social cooperation ought to be facilitated, and even then, there is still no support for the claim that one ought not lie in a given, particular instance. In other words the factual premise does not show why lying is wrong, only that we have reason to value the general practice of truth telling, provided that we already value social cooperation. In order to show that the principle is valid and that lying is wrong, we would require some further principle, such as: Social cooperation ought to be promoted, Trust ought not to be violated, or People ought never to be treated merely as means. And these premises do not appear to be similarly factual or fact-sensitive—certainly, they cannot be justified merely with reference to facts. As Cohen more generally puts it, “[W]henever a fact F confers support on a principle P, there is an explanation why F supports P, an explanation of how, that is, F represents a reason to endorse P.”19 While the negative part of this argument may resemble a recapitulation of Hume’s no-ought-from-an-is maxim,20 Cohen takes it to be a global objection to the Rawlsian project. Rawls asserts that principles of justice are to be constructed in light of social facts, and he writes: [S]ince principles of justice are consented to in the light of true general beliefs about men and their place in society, the conception of justice adopted is acceptable on the basis of these facts[.] . . . Conceptions of justice must be justified by the conditions of our life as we know it or not at all. (TJ, 454/398)



Freestanding Political Philosophy

The principles of justice are constructed in a situation of rational choice subject to reasonable constraints, and in light of general facts about human nature and society. Rawls is not shy about his thesis that principles of justice should be constructed to reflect facts about human society; for him, the alternative is rational intuitionism, which he deems incompatible with freestanding political theory, and implausible in its own right (CP, 343–46). But according to Cohen, while Rawls’s principles might be valid when considered as rules for regulating social life, they cannot be first principles. That is, they can be valid only in light of whatever justifies this common commitment to regulating the basic structure of our society according to principles we jointly agree upon. Cohen writes: “Rawls fails to distinguish between rules of regulation that we decide whether or not to adopt and (his expression) ‘first principles’ that are not in that way optional.”21 It might be thought that there is an easy Rawlsian rejoinder to this: Cohen has fixated on Theory, and missed all of Rawls’s post-Theory metatheoretical innovations. The later Rawls would accept that his constructivist enterprise models only a reasonable agreement about principles of justice among people who are already committed to more basic principles about the freedom and equality of their fellow citizens and the desirability of social cooperation. But he intends precisely to opt out of the question of what more ultimate principle or principles give normative authority to the principles of justice, and he is agnostic on the metaethical question of whether there is an answer to this question at all. Determining how the principles of justice are to be grounded (in the Kantian sense of the term) is, as far as the Rawlsian is concerned, a private matter for individual citizens to take up as they like. But Cohen’s problem cannot be dismissed so easily, for we have yet to explain why we ought to take a reasonable agreement of the sort Rawls describes as defining what we ought to accept, if we are reasonable, as valid principles of political justice. The concerns that Joseph Raz raises in his critique of Rawls are relevant here: why should we accept that what can be agreed upon identifies the conception of justice we should support, especially if what can (as a matter of fact) be agreed upon represents something different than or less than what we consider to be the full truth about justice.22 If, on the other hand, we want to say that there is no full truth about justice beyond what reasonable people can agree upon (over time, under favorable conditions, and so forth), then that is a claim which itself stands in need of justification, and indeed it stands in the sort of justification that Rawls would like to avoid having to offer. If the later version of Rawls’s theory claims to present an articulation of justice

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and political practice that is other than a mere description, a fact-insensitive principle must underlie the reasonable agreement, as Cohen would have it. Reasonable agreement is, as far as we have described it, just a fact: a fact about the shared convictions of persons of a certain description. There must be some reason why not just consensus, but a certain kind of consensus among reasonable persons about terms of social cooperation, counts as a binding conception of justice. Given that Rawls’s would like to decline defining what the fact-insensitive basis of justice as fairness is, as that would require the sort of intuitionism or metaphysics he takes to be contrary to the purposes of political liberalism, what consequences follow? In the immediate wake of Political Liberalism and the articles that led up to it, some of Rawls’s critics were rather alarmed by what they thought was a slide from a normative enterprise toward one that seeks an expedient way to establish a consensus on justice. In the meantime, however, it has become clearer that Rawls is not just fetishizing agreement for agreement’s sake. Rather than reflecting a Hobbesian preoccupation with stability, Rawls’s project takes on the Rousseauian and Kantian aspiration of articulating a framework within which free and equal citizens could give mutually acceptable justifications for the laws that coercively bind them. But as I shall argue in Chapter 3, and again in Chapter 7, in order for the political conception of justice to regulate the basic structure in more than a de facto manner, we would want two things: to be assured that we are right to treat a reasonable consensus as authoritative, and that this consensus normatively regulate disagreements about justice. But Rawls’s nonmetaphysical theory turns out to be poorly positioned to do those things, since there is ultimately nothing to the conception of justice beyond what individual citizens, all with their own unique comprehensive doctrine, think it is. And it may turn out that their agreement about principles means much less than they had hoped, when it comes time actually to apply the conception to disagreements. To illustrate this point in a preliminary way, let us take a look at Rawls’s notion of public reason, for one might think that it is an antidote to these normative deficits, since it says something about how politics ought to be conducted among reasonable people who continue to differ about matters of basic justice. Public reason is conceptually rooted in the reasonable, and the “family” of liberal conceptions of justice, rather than being tied to any particular conception of justice (CP, 581–85). The content of the family resemblance among these conceptions of justice is exhausted by the ideas of equal rights, the priority of the right, and that rights bearers ought to have



Freestanding Political Philosophy

the means to make “effective use” of their freedoms (CP, 582–83). The increasing prominence of public reason in Rawls’s argument shifts its emphasis away from the defense of a particular conception of justice and toward the defense of a kind of political practice reminiscent of Rousseau’s general will. The normative claims of Rawlsian public reason are contained in what he dubs “the duty of civility” and “the criterion of reciprocity.” According to the latter concept, reasonable persons ought to offer terms of cooperation to others that they believe, given their knowledge of the ideas about justice held by other reasonable people in their society, will be reasonably acceptable to those others. The duty of civility obligates us to couch our advocacy for uses of political power in a publicly acceptable political vocabulary, rather than in the more particular, private language of our comprehensive doctrine (even if we think, as seems likely, that this private language better captures our true meaning). In order for us to consider the idea of public reason to be a normatively rich aspect of Rawls’s thought, however, we would expect it to serve as a resource for settling political disputes by providing norms to determine whether public reason is being violated.23 But public reason’s ability to do this turns out to be limited. Rawls is at pains to emphasize that it should not be identified with “secular reason” (CP, 583)—that would be to take sides in the issues that divide religious and secular comprehensive doctrines. Thus he argues that certain positions normally motivated by religious considerations—opposition to abortion and advocating school prayer are the examples he discusses (CP, 601–7)24—may be advocated for without offending public reason, so long as the arguments are couched in terms of commonly shared political values. While this may allow Rawls to claim, against his religious critics, that public reason does not decide issues in advance with a bias toward the secular, it also makes it appear that the criterion of reciprocity does little to exclude any kind of position aside from ones that make blatant appeals to religious conviction or doctrine. Oddly though, while it is on the one hand hard to see what public reason excludes, it is also hard to see when the practice would ever be possible and how we would know if it were. Arguments from public reason are supposed to proceed from commonly held political values, such as freedom and equality, the virtues of public cooperation and order, the value of human life, and so on. But, for example, Rawls contends that reasonable public arguments can be made for and against abortion, by weighing the values of human life, public order, and the self-determination of women against one another.25 Yet it seems dubious to maintain that the participants in this dialogue actually share the same un-

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derstanding of what is normally the crucial term in this debate (that is, human life) to the extent that we would want to say that they are proceeding from a shared premise; their conceptions of human life, its value and meaning, do not seem close enough to each other for it to make sense to appeal to the term in order to mediate their disagreement.26 Similar problems follow from the public use of any polymorphous value term, such as freedom or equality. All of this makes it hard to see how adhering to the strictures of public reason is of much use in settling disputes, and the critical standards that are used to determine when the demands of public reason are satisfied or violated seem highly amorphous. To be sure, public reason does give us a standpoint from which to condemn authoritarianism and fundamentalism, and its general call for greater civility in public life is well taken. But if this is the only firm normative upshot of a political theory as monumental as Rawls’s, we have some reason to be disappointed.

3. summary of the descriptivist critique In this chapter we have started to develop the idea that issues of justification—in particular, questions about how a framework of political justification is to be justified to those who are both intended to make use of it and who are to be subject to the laws produced by a democratic process structured by the framework—are the key ones between Rawls and Habermas. Rawls places considerable emphasis on the idea that his political conception of justice epitomizes the idea of mutuality, developed imperfectly in Rousseau and Kant, by virtue of the fact that it is freestanding, not dependent on a “comprehensive doctrine” (as it is, Rawls holds, for Rousseau and Kant), and may therefore fit into any number of reasonable comprehensive doctrines. Because of this, I have argued that Rawls’s claims about the justifiability of a framework that is, from the point of view of the theory itself, justified in no one particular way (that is, from the point of view of theory itself, the conception of justice is justified because it can be justified in accordance with the lights of different reasonable comprehensive doctrines) needs to be carefully understood and critically examined. The descriptivist critique that I have developed in order to examine Rawls’s claims on this matter suggests that he may have a normativity problem in two distinct, but related, senses: (1) It has become rather unclear why it is incumbent on any particular reasonable person to endorse justice as fairness. Rather, Rawls’s arguments



Freestanding Political Philosophy

seem to boil down to the claim that reasonable people can endorse justice as fairness—that is, it can be made to “fit” into reasonable comprehensive doctrines, and (less certainly) that reasonable people will over time gravitate toward something like justice as fairness. But these appear to be descriptive claims (and potentially dubious ones, at that), not normative ones. (2) The application of justice as fairness is indeterminate, since the content of the conception of justice is, in hard cases, determined by the comprehensive doctrine that it is embedded within. The idea that it represents a shared standpoint is, then, misleading. The next chapter aims to develop Rawls’s overall apparatus of justification in a more nuanced and sympathetic manner, and Chapter 3 renders judgment on the question of whether we should exonerate Rawls from the charges of the descriptivist critique, concluding that while there are some senses in which the charges of the descriptivist critique are too crude, there is an important sense in which he cannot extricate himself from them.

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chapter two

The Rawlsian Apparatus of Justification

In the introduction, I presented the idea that Rawls, like Habermas, should be thought to have achieved his enormous stature in recent political thought by demonstrating a way to make systematic claims about the overall justice of a society, and the general conditions under which the laws governing it may claim legitimacy for all, in a manner reminiscent of the grand, systematic political philosophy of the eighteenth and nineteenth centuries, without reliance on a contentiously substantive or metaphysical conception of rationality. In Chapter 1, I offered a challenge to this notion with what I am calling the descriptivist critique: while conceding that Rawlsian reasonableness does not rely on a contentious conception of reason, I suggested that Rawls’s methodological innovations may render him unable to support any strong claims concerning the validity or normative superiority of justice as fairness. I presented this critique in a preliminary fashion, and nothing I have said so far pins Rawls definitively to it. I am supposing that it would be bad, from the perspective of Rawls and his sympathizers, if his program were actually subject to the descriptivist critique—that is, I take it that Rawls and most of his followers are not aiming to reform the methods and aspirations of political philosophy in such a way that it self-consciously forsakes the attempt to make strong normative claims. Admittedly, this may not hold for all of Rawls’s defenders.1 But, for the time being, let us suppose that we are interested in preserving the normative, critical aspirations of political philosophy. In that spirit, this chapter will explore the possibilities for developing Rawls’s theory in such a way that it is not vulnerable to the descriptivist critique. I begin by trying to get clearer about the kind of justification that Rawls takes himself to be offering for his theory of



The Rawlsian Apparatus of Justification

justice. The question of what justification actually means for Rawls turns out not to be easy to answer, since the number of concepts and devices that have been taken to contribute in one way or another to the justification of justice as fairness is extensive: the original position, reflective equilibrium, political constructivism, the overlapping consensus, and public reason. The main goal of this chapter is to interpret and organize the family of concepts that, for Rawls, goes into the justification of a political conception of justice. I start with (1) a discussion of the distinctions between the types of arguments that Rawls makes in behalf of his conception of justice and the perspectives from which he makes them. We are then in a position to understand (2) the contributions that the overlapping consensus and public reason make to the justification of justice as fairness. In the last two sections, I take up the central concepts of Rawlsian justification: (3) reflective equilibrium and (4) political constructivism. I argue that Rawls can escape the teeth of the descriptivist critique if constructivism represents a kind of binding procedure for drawing out the principled implications of intuitions held in reflective equilibrium; but I conclude—still tentatively, at this point—that it cannot properly be interpreted as such.

1. levels and standpoints In order to appreciate how involved the justification of a conception of justice is for Rawls, we can start by distinguishing between what I will call his levels of justification and standpoints for justification. The complete justification of a conception of justice requires justification at three levels (R, 385–89). (1) Pro tanto justification: To justify a conception pro tanto basically means to establish that it is a freestanding conception of justice that adequately fulfills the functions that reasonable persons expect their conception of justice to fulfill: that is, it is internally coherent and complete, providing not-unreasonable answers to (or at least a framework for answering) most questions regarding basic justice and constitutional essentials. Pro tanto justification refers to the possibility of a conception’s being justified in narrow reflective equilibrium. (2) Full justification in civil society: A conception is justified at this level when individual citizens, in wide reflective equilibrium,2 relate the conception of justice to their nonpolitical values by embedding it within their comprehensive doctrine. This level of justification refers to a reasonable

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person who believes a specific conception of justice to be the best, most correct one, in light of the full complement of that person’s political and nonpolitical values—it is justified to such people, in light of their values. (3) Public justification in political society: Full and public justification is achieved when citizens reach a consensus with one another on a political conception of justice, on the basis of public reasons that are neutral with regard to their competing comprehensive doctrines: it is justified to us, as a community that makes use of it in the regulation of our shared political life. These three levels of justification need to be understood in the correct manner, as they describe not so much moves within the theory of justice, proper, but objective conditions that must obtain in order for a certain degree of acceptance of a political conception of justice (whatever its content) to prevail. They do not specify the processes that bring about this acceptance on an individual or societal level, or the specific reasons that ought to motivate the individual or public acceptance of a conception of justice. But the theory of justice proper does not move within the observational standpoint that we occupy when determining the level of justification a conception of justice enjoys—the theory of justice provides reasons for reasonable citizens to accept a particular conception of justice—for example, justice as fairness. When evaluating Rawls’s arguments, it is very important to understand the standpoints from which he is arguing (PL, 28; CP, 320–21).3 Such standpoints are threefold: (1) Reasons offered from the perspective of you and me, here and now, trying to achieve reflective equilibrium. (2) Reasons offered from the perspective of hypothetical persons situated in the original position. (3) Reasons offered from the counterfactual perspective of a well-ordered society—that is, a society in which “(1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles” (TJ, 5/5). Rawls designates these as the standpoints from which reasons in favor of a conception of justice may be offered. The three levels of justification outlined a moment ago are tied to the standpoint of reflective equilibrium. By this I mean that the three levels of justification concern the width and depth of acceptance achieved by a conception of justice. They can be described



The Rawlsian Apparatus of Justification

without referring to the other standpoints—the hypothetical perspective of the original position, and the counterfactual perspective of the well-ordered society—even though these latter standpoints contain most of the theoretical machinery usually identified as the core of Rawls’s philosophy. From these standpoints, he offers reasons for properly situated individuals to accept justice as fairness, although it remains to be explained why individuals ought to be moved to accept a conception of justice on the basis of reasons offered from the hypothetical and counterfactual standpoints that Rawls employs. I agree with Anthony Laden that it makes sense to read Rawls as addressing “the citizen of faith”: a citizen who sincerely wants to know whether a well-ordered society is a real possibility, and therefore whether justice as fairness and the practice of public reason are worth being committed to.4 This interpretation takes its cues from the passage in which Rawls writes that justice as fairness “understands itself as the defense of the possibility of a just constitutional regime” (PL, 101; 369). Seen in this light, Rawls is addressing himself to the person that cares about the project of formulating a conception of justice that could serve as the basis of a system of fair cooperation for all that take part in it, but doubts the possibility of such a thing, given the inevitable disagreements about the proper, most just basis for such a system. Rawls’s aim, then, is to show that liberal democratic political thought is not committed to an unattainable goal—that is, that the legitimacy of a liberal political order under pluralistic conditions is possible.5 After all, once we accept the permanency of moral pluralism and the burdens of judgment, and note the actual quality of the democratic process in our own societies, we might very well conclude that the practice of public justification is futile, and that what really matters is achieving what our private convictions about justice demand (whatever we take that to be). Or we might opt to withdraw into private life. Either way, we would cease to work toward a well-ordered society. Rawls is profitably read as urging reasonable citizens that the project of working toward a well-ordered society is not a futile one. This project carries over from Theory to Political Liberalism, although the means of addressing the citizen of democratic faith differ: Rawls no longer thinks that the moral-cognitive argument that was meant to secure convergence ought to convince anyone aware of the fact of pluralism. In lieu of this cognitive argument, Rawls strengthens the empirical aspects of his theory in Political Liberalism, by appealing to political culture and constitutional history as functional substitutes that support the development of an overlapping consensus around something akin to justice as fairness.6

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Although it is no doubt possible to overestimate the degree to which Theory was intended to provide a general philosophical argument that would lead all reasonable persons to a conception of justice as fairness,7 there is a sense in which Theory is a more “philosophical” book than Political Liberalism. The latter is less concerned to move its readers to accept justice as fairness on the basis of philosophical arguments alone, emphasizing instead the historical-institutional tendencies and pressures that would, over time, incline such citizens to accept a public, political conception of justice—hopefully,it is to be hoped, though not necessarily, justice as fairness. In a way, the intended audience for Theory is different than that for Political Liberalism: whereas Theory aims to sharpen our moral-political intuitions through a philosophical argument whose centerpiece is the contention that the two principles of justice would be selected over alternative conceptions of justice in a fair situation of choice (the original position), Political Liberalism seeks to assure us—we that already hold reasonable views about political justice—that the project of institutionalizing a legitimate regime of liberal justice is possible. Put another way, Rawls’s post-Theory political philosophy attempts to demonstrate that liberal political convictions can be spelled out coherently (despite the burdens of judgment and the fact of pluralism), and that its “realistic utopia” of a well-ordered society is possible (though not necessarily likely). What does all of this tell us about the kind of normativity that Rawls thinks attaches to his theory? Plainly, Rawlsian justification does not go all the way down—indeed, to continue with the spatial metaphor, it starts quite high up, with people who not only have a moral sense but who also accept the priority of justice over the good and are disposed to accept a liberal conception of justice. Rawls is attempting to show that a conception of justice that we can articulate from the perspective of the three standpoints of justification is capable of achieving acceptance at all three levels of justification, and hence of providing a fully transparent and mutually acceptable basis for social cooperation among all reasonable citizens in a given society. Although it eschews deep justificatory questions (for example, Plato’s attempt to demonstrate that justice is the human good, or Kant’s attempt to prove that pure practical reason is possible), this is, in its own way, a rather ambitious project. The real issue here is not, as many have thought, that Rawls’s rather generous presuppositions render his argument uninteresting, but whether he can make normative claims about what reasonable persons ought to accept, beyond what they already do.



The Rawlsian Apparatus of Justification

2. the overlapping consensus, public reason, and justification When one looks at the secondary literature on Rawls, it becomes apparent that, though his political turn is on display in “Kantian Constructivism and Moral Theory” (1980) and “Justice as Fairness: Political Not Metaphysical” (1985), it was his introduction of the overlapping consensus (1987) that served to crystallize the descriptivist critique in the minds of his interpreters. The idea of an overlapping consensus represents Rawls’s updated version of the well-ordered society—updated to accommodate the fact of pluralism more adequately than the argument of Theory does—wherein a society’s main comprehensive doctrines have reached a point of consensus on a conception of justice, but endorse the conception for various reasons internal to their moral worldviews. The overlapping consensus is a consensus about the content of principles of justice, but not the justification for those principles. This, Rawls argues, is the deepest level of justification achievable in a pluralistic society. Habermas, for one, accuses Rawls of using the overlapping consensus to develop competing, even incompatible, programs in Political Liberalism by inappropriately mixing cognitive and noncognitive modes of justification. Rawls’s earlier work, Habermas assumes, is cognitive in that it bases the justification of the principles of justice on reasons offered from a hypothetical standpoint (the original position) that we are rationally obliged to accept, because it represents a fair situation of choice. Habermas contrasts this with the overlapping consensus: to the extent that a conception of justice is justified because it is the potential object of an overlapping consensus of reasonable comprehensive doctrines, justification refers to a counterfactual condition rather than a hypothetical agreement. This would mean that we are supposed to accept justice as fairness simply because it could satisfy certain counterfactual conditions—that is, the argument for justice as fairness is that it could achieve acceptance at all three levels of justification. Is Rawls suggesting that we should accept justice as fairness simply because it has the best chance, among competing conceptions, of being accepted in an overlapping consensus? How would we know which conception has the best chance of being accepted? Is this not an open, empirical question? Habermas rightly observes that the kind of problem that the overlapping consensus is supposed to solve is not new to Political Liberalism: part 3 of Theory is, above all else, meant to establish the possibility of justice as fairness being stable over time by demonstrating that widespread and consis-

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tent adherence to it is compatible with a minimal theory of human nature. “What bothers me,” Habermas writes, “is Rawls’ working assumption that such a test of acceptability [that is, the overlapping consensus test—T.H.] is of the same kind as the test of consistency he undertook with reference to the well-ordered society’s potential of self-stabilization” (IO, 61). That is, Habermas understands the “stability problem” of Theory to be answered with what amounts to an ought-must-imply-can consistency test. Unlike such a consistency test, however, assessing the probability of an overlapping consensus around justice as fairness involves stepping outside of the theory’s internal perspective—that is, the standpoints that offer reasons for accepting justice as fairness—and observing the “functional contribution” that justice as fairness makes to self-stabilization. Justificatory burdens are being met with normatively inert functional considerations. We might, however, offer an interpretation of the distinction between the counterfactual conditions satisfied by an overlapping consensus and the sort of stability found in Theory’s version of a well-ordered society along the following lines: given that justification is aimed essentially at others, and that reasonable persons accept the fact of pluralism and the burdens of judgment, individuals ought to formulate their conception of justice with an awareness of what other reasonable persons could accept, and ought to make their conception articulable in a public vocabulary. Put another way, reasonable persons ought to see their formulation of a conception of justice as Rawls does: not as a private quest for some primal truth about the nature of justice, but as a means for making themselves impartially justifiable to others. Now, Rawls indicates that the overlapping consensus is not itself properly understood as being constitutive of justification, but since the work of citizens engaged in public justification has an overlapping consensus as its telos, it is an important element in achieving final public, political justification of a conception of justice. In order to connect the two sides of Rawls’s theory (that is, the levels of justification and the standpoints of justification), we might view the overlapping consensus not just as a counterfactual state of affairs to be observed but as an account of what reasonable citizens are attempting to achieve when they form their views and deliberate with one another about justice. Reasonable persons accepting the burdens of judgment will refrain from offering reasons internal to their comprehensive doctrines when publicly deliberating, and will instead seek the kind of political agreement that the overlapping consensus represents. Recall that the objection we are currently dealing with is that Rawls seems to be conceiving of the overlapping



The Rawlsian Apparatus of Justification

consensus as a kind of justification that refers to an empirically observable condition, rather than to reasons in favor of justice as fairness. Or, put another way, Rawls seems to be asking us to accept justice as fairness because that could be the focus of an overlapping consensus. But, according to the line of thought being developed now, the overlapping consensus is merely a mark of the fullest kind of justification that we, as reasonable persons, can expect in political life; given that we desire a transparent and mutually respectful basis for social cooperation with our fellow citizens, it is what we are trying to achieve when we develop our own conceptions of justice, and deliberate with others about what conception would be most appropriate. This is, at any rate, how we might try to read Rawls, as this interpretation has the advantage of connecting the notion of public reason to the overlapping consensus in such a way that the reciprocal relations between these concepts are revealed: an overlapping consensus unleashes the full rational potential of public reason, and an overlapping consensus is itself the product of citizens’ conscious use of public reason. To explain: although Rawls has occasionally speculated about how the institutional pressures involved in different groups coexisting in a free and democratic society over time might serve to mold an overlapping consensus (PL, 158–68), we ought not hold out much hope for the development of an overlapping consensus in the absence of a citizenry and a political culture that is not broadly committed to the practice of justifying themselves in terms acceptable to others on the basis of widely held political values—at least with regard to constitutional essentials, matters of basic justice, and laws and policies pertaining to the basic structure of society.8 Yet, in a society without an overlapping consensus, it may not normally be possible to offer public justifications to others in terms of reasons they would accept—the lack of an overlapping consensus represents the lack of a publicly recognized and accepted language of political justification. The most plausible way to imagine the development of an overlapping consensus, however, is to envision it as the outcome of a learning process involving agents actively seeking common ground with one another over time, until they have freely and mutually settled on a certain set of principles for regulating the basic structure of their society and resolving disputes about justice and constitutional essentials. This interpretation of Rawls’s use of the overlapping consensus does, however, conflict with some of the things he himself says in response to Habermas. Rawls objects to the idea that we should work out our conception of justice with the aim of coming up with something that would be acceptable to others; he believes that this politicizes the conception of jus-

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tice in the wrong way, empirically conditioning the entire process of public justification to an unacceptable degree. Therefore, he denies that justice as fairness is worked out with an eye toward what will likely prove acceptable in a society’s political culture. Rather, it is first theorized as a freestanding view, and undergoes a preliminary pro tanto justification; only then is the surrounding political culture taken into account. One idea of consensus comes from everyday politics where the task of the politician is to find agreement. Looking to various existing interests and claims, the politician tries to put together a coalition or a policy that all or a sufficient number can support to gain a majority. This idea of consensus is the idea of an overlap that is already present or latent, and could be articulated by the politician’s skill in bringing together existing interests the politician knows intimately. The very different idea of consensus in political liberalism—the idea I call a reasonable overlapping consensus—is that the political conception is worked out first as a freestanding view that can be justified pro tanto without looking to, or trying to fit, or even knowing what are, the existing comprehensive doctrines[.] . . . When the political conception meets these conditions and is also complete, we hope the reasonable comprehensive doctrines affirmed by reasonable citizens can support it, and that in fact it will have the capacity to shape those doctrines toward itself. (R, 389)

Given what Rawls says here, Habermas is correct when he writes: “The theory, therefore, must leave the outcome of such a test of acceptability [that is, the public testing of the conception for its fitness as an object of an overlapping consensus—T.H.] undetermined” (IO, 61). The construction of a conception of justice must not anticipate the results of the overlapping consensus test; Rawls’s insistence on this undercuts those critics who accuse him of being political in a crass or pandering way. What he says is that the political conception is first worked out as a freestanding view. By this he means that the construction of conceptions of justice is not to be conditioned by the presence of competing conceptions of justice and worldviews—at least not in the first instance. This may seem odd, since Rawls is so often thought of as developing a conception of justice that is supposed to be particularly well suited for our society. However, his reasons for insisting on this point about theory construction become clearer when we appreciate how seriously he takes the idea of a freestanding theory. The normative demand to deliberate in terms that one believes will be acceptable to the other reasonable comprehensive views in one’s society is one that cannot, for Rawls, be extended to the private use of reason. For a freestanding theory, the motivational force and normative authority of a conception of justice stems, for the private individual, from



The Rawlsian Apparatus of Justification

the emphatic claims made by the moral sources countenanced in that person’s comprehensive doctrine, which is territory that political philosophy may observe but not inhabit or criticize. This means that the normative demands of reciprocity and publicity do not apply to the initial formation of conceptions of justice, since this takes place within the sphere of private comprehensive doctrines. Therefore, and as his comments at the beginning of the passage quoted above indicate, Rawls does not see the construction of a consensus in political liberalism’s sense of the term as a consciously undertaken process of collective will formation or coming to an understanding.9 This is problematic for Rawls, as he sometimes wants to characterize reflective equilibrium as a process of me and you coming to an understanding about the proper conception of political justice, but the demands of freestanding-ness that Rawls applies to his theory leave him unable to capture this intersubjective dimension. Instead, reflective equilibrium is conceived as a private process whereby people monologically work up a conception of justice in accordance with their moral-political intuitions, relating it to their nonpolitical values. We can only hope that modern Western political culture is cohesive enough that this privately undertaken process produces results that are similar enough among a critical mass of reasonable citizens to produce an overlapping consensus; such is the rational hope argued for in Political Liberalism. As indicated earlier, we might sympathetically try to read Rawls as making the sensible point that since justification is aimed at others, and must therefore appeal to something shared,10 it makes sense to articulate our normative intuitions in such a way that they are likely to strike others as, at the very least, reasonable. If we, as reasonable persons, take our own moral judgments to be reasonable, then they should in principle be comprehensible and amenable to others, and so imagining how my intuitions could be made acceptable to other reasonable persons, who may well disagree with me about many things, might seem like a good way to clarify these intuitions, make them explicit to myself, and comport myself socially and politically in a manner that could meet with the desired recognition of others.11 Understood thus, taking account of one’s political culture, with its competing worldviews and conceptions of justice, when articulating and justifying one’s own normative intuitions is helpful, even necessary (not to mention inevitable), and need not be interpreted as pandering or inauthentic. However, Rawls’s freestanding methodology resists such a move: Rawls is not in a position to claim that citizens are obliged to consider the views of their fellow citizens when developing their conceptions of justice,

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nor are they obliged to be open to the learning processes spurred by deliberation.12 To say anything about how individuals ought to reflect on and form their views about justice—that is, to comment on a process of belief formation that takes place under the auspices of an individual’s comprehensive doctrine—is for philosophy to intervene into private, comprehensive doctrines in a way that Rawls’s political approach disavows.13 To be clear: recalling our earlier discussion, Rawls is addressing himself to the reasonable citizen of democratic faith, attempting to demonstrate to such a person that political liberalism is possible, that an overlapping consensus is a coherent ideal. He can, perhaps, show that it is possible and desirable, but he cannot claim that citizens are obliged to create it—that is, he cannot maintain that, in its absence, citizens should, when forming their views about justice, engage in a collective learning process whereby they consciously seek to forge an overlapping consensus through their public use of reason. Rawls is left to hope that, the social pressures and political cultures of modern constitutional democracies being what they are, an overlapping consensus might come about. Of course, an overlapping consensus is the work of public reason in an obvious sense inasmuch as, once we arrive at the final level of public justification, reasonable individuals will translate their worked-out normative intuitions into a neutral political vocabulary, and an overlapping consensus, it may be hoped, will be the result. But on this view, public reason comes onto to the scene only after all of the heavy lifting has been done by individuals who have already privately developed their conceptions of justice and embedded them within their worldviews, achieving something approximating wide reflective equilibrium. Then, they convert these private achievements into a public conception that makes possible the use of public reason—the achievement of articulating a conception of justice and relating it to the rest of life in reflective equilibrium is a private matter.14 Only once this conversion takes place can public reason come onto the scene; public reason depends upon a fortunate convergence among comprehensive doctrines, but Rawls does not employ it in order to explain the development or desirability of an overlapping consensus. Admittedly, the idea that the public use of reason has nothing to do with the formation of an overlapping consensus seems odd, even if one believes, as Rawls does, that historical and institutional pressures are the primary forces that shape an overlapping consensus. And the idea that individuals ought to develop their conceptions of justice in hermetic isolation, only to translate their views about justice into a public vocabulary once they are



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fully formed, also appears unrealistic. It is not my intention here uncharitably to attribute to Rawls strange and implausible views about historical causality or moral development, but rather to point out that the way he sets up the division of labor between public and private reason leaves him unable to capture the intersubjective dimension of the formation of both individual conceptions of justice and the overlapping consensus, much less to claim that intersubjectivity places normative demands on these formative processes. Put another way, Rawls is not in a position to place normative demands on the processes through which individuals develop their conceptions of justice, and through which an overlapping consensus might take shape; he is left hoping for felicitous substantive outcomes. If the problem were just that Rawls happens to have some idiosyncratic views about how these social and individual formative processes take place, we could simply replace them with sounder ones; instead, the problem is a consequence of Rawls’s conception of a freestanding theory of justice. From a more Kantian or proceduralist perspective, the very process of constructing and articulating a conception of justice and putting it into equilibrium with the rest of my beliefs is shot through with public reason. Or rather, the process of articulating a conception and justifying it to myself is not in principle different from justifying it to others, and I ought to anticipate how my conception will strike others, if it is indeed my intention to construct a conception that aims to be reasonable. Normative demands are loaded into the processes through which justification takes place (reasoning, discourse, consensus seeking), rather than on substantive outcomes (that is, a consensus focused on justice as fairness). One way of looking at this would be to say than an overlapping consensus is latent in democratic society insofar as reasonable citizens share a set of political ideals as well as a capacity for public reasoning that can hammer this rather formless consensus into a sharper, more explicit one regarding a political conception of justice. But that seems to demand an idea of public reason significantly more extensive than Rawls’s. This discussion of the overlapping consensus in Rawls’s justificatory scheme leads to the conclusion that Habermas exaggerates its significance, insofar as he reads Rawls as attributing independent justificatory force to it.15 I suggested suggest that an appealing way to interpret Rawls here would be to agree with Habermas that the overlapping consensus test has supplanted Theory’s earlier stability test, but that the new test does not refer to a counterfactual condition to be observed from a standpoint outside of the theory itself. Rather, the overlapping consensus ought to be seen as

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internally related to the exercise of public reason: public reason creates and renews an overlapping consensus, which, in turn, makes the full, unfettered use of public reason possible. As we have seen, however, the methodological strictures of Rawlsian freestanding theory seem to block this interpretation. In Rawls’s defense, we can still say that the overlapping consensus test is merely a marker of full justification—it is not constitutive of it—and so he is not guilty of appealing to facts rather than reasons in order to establish justification. If an overlapping consensus is capable of making possible the use of public reason to settle most conflicts relating to basic justice and constitutional essentials, then such a regime of justice is capable of selfstabilization and self-renewal “for the right reasons”—much in the same way that Theory’s original stability test was intended. Still, it is the overlap among privately articulated conceptions of justice that constitutes an overlapping consensus, rather than the common process of socialization that part 3 of Theory describes. As with the original stability test, the overlapping consensus and public reason play a justificatory role that is subsequent to the formation and pro tanto justification of the conception and its emphatic justification for individuals within their private comprehensive doctrines. Once justification at these levels takes place, we can then see whether an overlapping consensus develops to the point of enabling a practice of public reason. Rawls’s conception of public reason employs the perspective of a wellordered society with a publicly recognized conception of justice. That is, reasons are offered (to us, here and now) from the anticipated perspective of an overlapping consensus, where a political conception of justice is counterfactually institutionalized by citizens who are prepared to provide reasons to one another on grounds that are publicly accepted. So while it is therefore true, as some critics have suggested, that the norms of public reason are binding only once a sufficient consensus about justice has actually been achieved,16 it does not follow, as other have argued,17 that the justification of political liberalism via public reason is either a circular or an empty enterprise because Rawls’s argument provides no independent rationale for accepting the normativity of public reason. Such criticisms can be dismissed once we realize that the norms of public reason are not constitutive of the justification for justice as fairness, but are rather part of that conception. Thus, while it is true that the exercise of public reason is stymied by the absence of an overlapping consensus, this does not count against the justification of justice as fairness, since public reason becomes binding at the same point that justice as fairness does. Thus, while Rawls



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may be defended against the reading of his program as crassly political by distinguishing between those elements of his justificatory scheme that mark justification and those that are constitutive of it, we have been alerted to the fact that his version of the freestanding paradigm is ill equipped to construe justification in intersubjective terms. Whether this is a serious problem remains to be seen. From the point of view of what might be dubbed a more traditional normative theory, the problem is that Rawls’s theory spends too much time telling us what we do believe and not enough telling us what we ought to believe—and after all, it is the latter that we call upon a normative theory to help with. This would be a well-founded complaint if we think that Rawls’s theory consists only in elaborating a series of markers for justification— that is, if he were telling us only what the legitimacy of political society looks like from the outside: it appears as a political community that accepts roughly the same principles of justice and employs them as the vocabulary in their practice of reciprocal justification. But Rawls does have an account of the constitutive elements of political justification, which we will examine in the next two sections, starting with reflective equilibrium. As we shall see, the claim that justification is constituted by the acceptance of a conception of justice in reflective equilibrium can too easily be assimilated into the more descriptive, normatively vacuous claim that what is justified is what is (reflectively) accepted (by reasonable people); so reflective equilibrium has to be supplemented by Rawls’s political constructivism, which I will examine in Section 4.

3. reflective equilibrium It is a curious fact about Rawls’s corpus that although the bulk of the methodological work of defining the process of reflective equilibrium occurs in a few sections in Theory (and this characterization remains essentially unmodified), the method takes on more explicit justificatory burdens in the post-Theory writings.18 As Seyla Benhabib puts it: “[T]he ‘we’ that referred to the theorist as well as the reader was never given an explicit hermeneutic identity in A Theory of Justice.”19 Ever since Rawls’s Tanner Lectures, however, it is “we” as a modern democratic people with a history and constitutional tradition to draw upon. Because of Rawls’s contractualist intuition, and the fact that his arguments appeal to our ordinary capacities for moral thought rather than to

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metaphysical premises, reflective equilibrium enjoys a certain pride of place in his justificatory scheme. Justification begins and ends with reflective equilibrium: the ideals out of which justice as fairness is constructed are not philosophical first principles, but deeply held fixed points of the moral-political thinking pervasive in our culture; the justification of a political conception of justice is complete only when that conception serves as a publicly accessible framework that is reflectively endorsed by the persons in a reasonable overlapping consensus. And indeed, although it would be overstating matters to say that Rawls’s entire argument models the process of reflective equilibrium, if we understand that to mean that it models some neutral mental process naturally intrinsic to human rationality,20 the argument as a whole is nevertheless an exemplar of that process: we begin with deeply held ideals, use them to weigh and consider various conceptions of justice that are culturally available to us, settle on a conception, and then deepen and perhaps modify our account of it by considering how it fits into our general understanding of how human society and psychology work. Let us pause to clarify Rawls’s concept of reflective equilibrium in a bit more detail. In the concluding section of Theory, Rawls notes that moral philosophers have typically attempted to justify their theories in one of two ways: either by deducing them from principles that are taken to be selfevident, or by deriving moral codes from “natural” or otherwise nonmoral facts (TJ, 577–78/506). Rawls says that his theory does neither, and that we are better off treating a moral theory of political institutions like most any other kind of empirical theory, making allowances for some special features of the moral domain.21 In general, moral theory seeks to give an account of the moral sensibility that most mature, competent human agents possess, by describing the moral conceptions that an ideally well functioning sensibility would produce. Rawls begins with something akin to observational data: we have a certain moral capacity from which judgments about justice issue. Some of these judgments we are reasonably confident in: they occur consistently under “conditions favorable to the exercise of justice,” and we find no reason to question them (TJ, 48/42). Such judgments can occur at “all levels of generality”—some may be about particular cases (“the judge’s ruling was unfair to the defendant”), others are more general (“inheritance laws are fair,” “slavery is unjust,” and so forth). The theorist then proceeds to posit a set of higher-order principles that would account for the initial set of considered judgments in an economical manner. If all goes well, then the set of considered judgments matches up elegantly with the set of principles posited, and we have reflective equilibrium. Normally, things do not



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go so smoothly. Our set of principles will probably fail to match up with our considered judgments in a variety of ways—some judgments may not be accounted for by the principles, others may contradict the principles. At this point, there are no hard-and-fast rules for resolving the tension. We move back and forth between our judgments and the principles posited to account for them, trying to extend and modify the principles to better account for the judgments, and modify or even abandon our considered judgments. Some judgments we may regard as “Archimedean points” that we are unwilling to give up (for example, “slavery is wrong”), while other judgments (such as “inheritance is just”) we may end up reconsidering to the point of abandoning them altogether. If reflective equilibrium really is the master concept of Rawls’s justificatory scheme, what he would seem to be arguing is that moral and political philosophers have nothing to appeal to beyond the reflective judgments of reasonable individuals and their views about which principles of justice serve to make the best sense, on the whole, of their faculty of moral judgment. Rawls is then arguing that the two principles of justice indeed are the most consistent and morally appealing principled interpretation of the basic moral judgments of what I will later be calling the modern moral worldview—that is, the basic organizing moral-political intuitions of participating citizens in modern, constitutional democracies—and the argument from the original position simply serves to illustrate this fact. Most of the accounts in the secondary literature of Rawls’s method of reflective equilibrium, and the fundamental place he gives it in his justificatory apparatus, are fairly sympathetic.22 Scanlon goes so far as to say, “[It] seems to me that this method, properly understood, is in fact the best way of making up one’s mind about moral matters and about many other subjects. Indeed, it is the only defensible method: apparent alternatives to it are illusory.”23 Some critics are, however, concerned that reflective equilibrium serves merely to refine a contingent set of moral beliefs. For example, David Lyons argues that reflective equilibrium provides, at best, a coherence argument in favor of a moral conception, but coherence arguments, by themselves, add nothing to justification, beyond eliminating incoherent alternatives, while providing no grounds for selecting among coherent ones.24 Joseph Raz files a similar complaint when he writes: “[Reflective equilibrium’s] decisive failure is its inability to guide our choice between moral views.”25 The most immediate answer to critics of this sort is to point out that Rawls, the freestanding political philosopher, is simply not engaged in moral philosophy that attempts to refute a skeptic; reflective equilibrium

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begins with the assumption that we have a faculty of moral judgment, and that (for mature, well-functioning agents in reasonably favorable conditions) it is normally reliable (TJ, 41/46). The method of reflective equilibrium then seeks to make sense out of this faculty. While this response may steal some of the urgency from the criticism that the likes of Lyons and Raz raise, they cannot be dismissed so quickly, if it is true that (a) reflective equilibrium is both the beginning and end of Rawls’s argument, and that (b) it does not decisively recommend any one coherent alternative over another. This would seem to confirm one of the points made in the descriptivist critique: that it does not matter so much what conception of justice we settle on, only that there is such a consensus. One of Raz’s criticisms comes into view here: does Rawls really maintain that we should care more about having a consensus than getting the content of that consensus right?26 Does the fact that we can achieve reflective equilibrium with a conception of justice speak in favor of that conception? If so, how? This, of course, mirrors our questions about the overlapping consensus: in what sense does the fact that a conception of justice could become the object of an overlapping consensus speak in its favor? In order to refine this discussion, we need to distinguish the various ways in which the idea of reflective equilibrium is used in Rawls’s justificatory apparatus, as it plays a different role in each of Rawls’s three levels of justification. At the first level of pro tanto justification, we are making use only of the idea of “narrow reflective equilibrium”: the standard of narrow reflective equilibrium is satisfied when a conception of justice can be considered coherent and viable (JF, 30–31). The second level of justification—full justification in civil society—makes use of the methodologically more significant notion of “wide reflective equilibrium”: it refers to a state in which persons have accepted a conception of justice and coherently embedded it in their comprehensive doctrine. The third level of public, political justification also makes use of wide reflective equilibrium, but refers, not to individual persons, but to the state of an overlapping consensus, in which we are concerned with the overlapping content of a multitude of individually achieved equilibria, without concerning ourselves with how those individual equilibria have been achieved by private individuals. When speaking of reflective equilibrium at the first two levels—that is, when referring to the narrow and wide equilibria achieved by individuals— there are two straightforward, though admittedly minor, senses in which coherence does speak in favor of a conception. Firstly, a conception of justice, correctly applied, ought to give answers to most questions regarding



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the assignment and distribution of rights and entitlements. A conception that fails to do so, or that does so in an arbitrary or inconsistent manner, is clearly worse than a consistent and comprehensive one. This does not speak directly to the concern of Lyons, Raz, and others, who accept that coherence may well be better than incoherence, other things being equal, but contend that it is not a self-sufficient ground for justification; reflective equilibrium is helpless to distinguish among any number of coherent conceptions of justice, and therefore to tell us whether our interpretation of our deeply held moral intuitions is right, or at least better than the culturally available alternatives. There is some truth to this, but it is less forceful when we note that reflective equilibrium is not merely a neutral articulation of what an individual’s moral beliefs happen to be.27 It is also and primarily the recommended method for determining what one ought to think about justice, given an initial set of considered judgments. The process of coming to reflective equilibrium models the revisionary give-and-take of Socratic thinking. Those who characterize Rawls’s method of inquiry as too descriptive, indeterminate, or agnostic may underestimate the degree to which our ordinary intuitions are inconsistent, even incoherent. For all of that, however, the critics of reflective equilibrium’s indeterminacy as a critical standard are perfectly correct, and this should actually be no surprise when we consider again Rawls’s freestanding notion of political philosophy. So long as a given reflective equilibrium achieved by an individual is reasonable, the political philosopher lacks the authority to criticize it. Even when we shift to the level of public, political justification, we should be indifferent to how individual reflective equilibria are achieved, and concern ourselves only with whether our society is in possession of a framework for political justification that we can all (for our own reasons) reflectively endorse. But again, the method of reflective equilibrium cannot settle questions about whether one possible overlapping consensus, within a range of reasonable options, would be better than another. Even reasonable people, conscientiously and reflectively using their reason to form their beliefs about justice, will (according to Rawls, inevitably) reach different conclusions, different points of equilibrium. Rather than conclude that Rawls’s political philosophy is therefore concerned only with the fact of agreement, and not the content of that agreement (and is therefore political in the crass sense), we should say that an interpretation of Rawls that hopes to skirt the descriptivist critique cannot move entirely within the orbit of reflective equilibrium, essential though it is for initiating and concluding the process of justification.

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4. political constructivism and convergence The method of reflective equilibrium is useful to the political philosopher concerned with the prospect of achieving full justification in political society only if we can identify some stable set of moral intuitions widely held in common by reasonable people. Otherwise, we would lack the common ground required to begin constructing a conception that could serve as a public conception of justice. Even given a common set of fixed points among a group of reasonable persons, there is no guaranty that the process of achieving wide reflective equilibrium will result in similar, much less the same, conceptions of justice. That is, Rawls acknowledges that the basic moral intuitions of reasonable persons can be coherently combined with a variety of conceptions of justice—the process of reflective equilibrium does not single out any particular conception of justice as uniquely justified. In both Theory and Political Liberalism, Rawls assumes some straightforwardly empirical claims about the basic moral intuitions he takes to be widespread in Western democratic societies—that is, the modern moral worldview. The content of that worldview is the following: the conception of citizens as free and equal persons, the notion that persons possess both a sense of justice and a conception of the good (the two moral powers), and the ideal conception of society as a system of cooperation for mutual benefit, which culminates in the ideal of a well-ordered society.28 By themselves, these fixed points, generally held by reasonable citizens in democratic culture, do not imply any particular public conception of justice. In Theory, Rawls’s hope was that a compelling philosophical argument of the sort on offer in that book could motivate consensus among reasonable citizens by carrying out a convincing synthesis of commonly held intuitions—convincing enough that the readers of Theory would recognize themselves in that book and demote or abandon whatever utilitarian, communitarian, perfectionist, intuitionist, or meritocratic intuitions they might have held. Some of the differences between Theory and Political Liberalism stem from the fact that this method of achieving convergence among the conceptions of justice endorsed by reasonable persons is partially transformed, partially abandoned in Political Liberalism. In the latter work, a shared political culture and constitutional history serve as the linchpin of the argument for achieving convergence on a shared conception of justice. While this reliance on empirical factors such as history and political culture—as opposed to moral arguments—makes him potentially vulnerable to the descriptivist critique, it also shows how there must be more to Rawls than the cruder versions of



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that reading would have it. In the absence of an actual overlapping consensus, we have only a contingent collection of broadly (though perhaps shallowly and hypocritically) shared political values, and Rawls does not end his argument by pointing to the empirical possibility of an eventual deepening convergence among the political ideals held by various reasonable comprehensive doctrines.29 Thus, we require some method for drawing out the principled implications of our settled convictions.30 This points to the importance of a constructivist argument from these minimal premises and the continuing significance of the argument from the original position.31 Rawls characterizes “political constructivism” as a method for representing the political conception of justice as the result of a procedure built around the fixed points of the modern moral worldview.32 “[Political constructivism] says that once, if ever, reflective equilibrium is attained, the principles of political justice (content) may be represented as the outcome of a certain procedure of construction (structure)” (PL, 89–90). Political constructivism shows us how shared intuitions can be worked up into a conception of justice that could serve as the public conception of justice for a well-ordered society. It begins with the broadly shared ideals and values of the modern moral worldview, works up a procedure of construction that models those ideals, and constructs a determinate conception of justice out of the procedure. Rawls is clear on this point: “[In] this form of constructivism, what is it that is constructed? Answer: the content of a political conception of justice[.] . . . A second question is this: as a procedural device of representation, is the original position itself constructed? No: it is simply laid out” (PL, 103). Thus, the laying out of the original position is the imaginative portion of Rawls’s theory: it is neither specified by reflective equilibrium nor constructed; rather, the political philosopher’s job is to come up with a persuasive way of connecting basic intuitions to a determinate conception of justice, in such a way that the conception of justice can be viewed as an “objective” result or extension of those basic intuitions (PL, 110 and following).33 The status of the original position in all of this can be hard to gauge. Certainly, the concepts of the original position and the veil of ignorance are the most celebrated feature of Theory, and are normally thought to be its centerpiece. The fact that, as Rawls argues, the two principles of justice, and the priority of the first principle over the second, would be selected by the parties situated behind the veil of ignorance is supposed to count decisively in favor of their justification. Rawls’s argument that the two principles of justice would be selected by the deliberators in the original posi-

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tion is convincing. But it is not immediately obvious why this argument should decisively recommend justice as fairness. We, reasonable citizens in the here-and-now, need to be shown that we actually do or should accept that the machinery of the original position is an appropriate way for selecting principles of justice (R, 384 note 14). The obvious problem here is that “we” do not accept this in any straightforward sense. The notion that our public principles of justice ought to be ones that are equally in the interests of all may have some traction, and the subsequent idea that such principles would be selected under fair and impartial conditions might also count as a plausible idea in our political culture, but to claim that the idea of the original position is actually a piece of “our” ordinary, everyday political thought would no doubt be false. However, Rawls does not justify the use of a procedure of construction in this way. He is committed to the idea that our conception of justice should follow from our “basic conceptions of person and society.” He develops this idea by modeling these basic conceptions in a procedure of construction (PL, 103–4), which yields a determinate conception of justice that—after being checked for stability, and against our considered convictions—we ought to understand as the conception most appropriate for us, and which reasonable people will at least be able to endorse in reflective equilibrium. The basic conceptions of persons and society are modeled in the original position in the following manner:

• The notion of a well-ordered society is modeled in the aim of the origi •

•

•

nal position: to provide a publicly recognized and accepted conception of justice that regulates the basic structure of society. Equality of persons is modeled in the structure of the original position: parties are situated horizontally, each has a vote and veto power, and the veil of ignorance ensures that no one has a bargaining advantage over anyone else—and thus, that the procedure will be fully impartial. The moral power of conceiving and advancing a conception of the good (“the rational”) is modeled as a substantive input into the original position: it is the rational power that the parties behind the veil of ignorance are assumed to have at their disposal. How the original position models “the reasonable” moral power of justice is less obvious. Rawls does not put the reasonable moral power into the original position; it is granted “virtual existence” since the parties situated behind the veil of ignorance are aware that the persons they represent do possess it, though they do not. Thus the veil of ig-



•

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norance embodies the idea of reasonable constraints on the choice of principles. Our sense of justice is modeled in our commitment to “the procedure as a whole” (PL, 104). Whether the original position models the freedom of persons is controversial, since it has appeared to some that Rawls wants to model the freedom of persons on the calculating, rational choice of parties behind the veil. Whether this is a good interpretation of Theory or not, Rawls admits some complicity in fostering it, by overemphasizing the degree to which the theory of justice is meant to be part of a theory of rational choice.34 He clarifies: “[T]he conception of justice as fairness uses an account of rational choice subject to reasonable conditions to characterize the deliberations of the parties as representatives of free and equal persons; and all of this within a political conception of justice, which is, of course, a moral conception” (CP, 401). The impression that Rawls is modeling a Hobbesian brand of freedom and justice persists only so long as we view the original position as the centerpiece of the argument, rather than as a piece among others. For freedom in accordance with our sense of justice is not modeled in the original position; it is to be found among those of us who posit the original position as fair procedure for selecting principles of justice, who exercise our autonomy by abiding by these principles that we have come to through rational insight and conscientiously applying them to the basic structure of our society—we become politically autonomous by subjecting ourselves to self-given principles that are equally in the interest of all. (PL, 98)

If we conclude that the original position successfully models what Rawls specifies as the basic features of the modern moral worldview, and the deliberators in the original position would in fact select the two principles of justice and their lexical ordering, plus the norms of liberal legitimacy and public reason, then the original position is justified by virtue of being modeled on the basic conceptions of persons and society, and justice as fairness would in turn be justified by virtue of the fact that it follows from a procedure of construction that embodies ideals we are committed to (in addition to being acceptable to us in light of our considered convictions). And as I said earlier, Rawls is committed to the notion that the most appropriate public conception of justice is one that flows, via a constructivist procedure, from these conceptions of persons and society. But are we obliged to follow Rawls in this regard? One might think that we ought to agree with him, on the grounds that constructivism is just a companion to the method

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of reflective equilibrium in the following sense: if we accept that we ought to justify moral conceptions to ourselves by finding principles compatible with the preponderance of our considered judgments, and work ourselves into wide reflective equilibrium, then it would follow that constructivism is appropriate, since it methodologically certifies that the conception of justice it produces will cohere with our intuitive conceptions of persons and society. But we should recall that the test of wide reflective equilibrium demands that our conception of justice cohere with other considered intuitions and general facts; to say that our conception of justice ought to follow from a certain set of abstract, allegedly basic moral conceptions, via a procedure of construction, is to claim something significantly more. To maintain that notions of persons as free and equal, and society as a system of fair cooperation, are the bedrock of modern political morality may be fine. And those notions may very well imply, for us, the importance of basic rights, the rule of law, and perhaps democracy as well. But as should be clear, there is no determinate conception of justice that follows with any necessity from these notions. Moreover, they coexist with other widely held intuitions about justice. In particular, they coexist with ideas of justice that are no less widely held for not being distinctively modern: the notion that justice is intimately connected with desert. And procedural intuitions we have about justice coexist with more substantive—we might call them communitarian—ideas about justice that closely identify it with goodness and the promotion of shared values.35 Rawls does recognize that people often link justice to rewards for merit or moral desert (TJ, 310/273). In Theory, his argument against justice as desert is that it would not be selected in the original position. This appears to be begging the question, however. It may be that communitarian, perfectionist, and meritocratic conceptions of justice would not be selected in the original position, but the question is how Rawls can justify not modeling these widely held intuitions in his procedure of construction. It is no doubt true that a procedure of construction and the ensuing conception of justice cannot incorporate all widely held intuitions about justice and still be consistent. Any procedure of construction can only claim to be one way among others of organizing widely held moral and political intuitions. But how is the selection of some widely held intuitions over others, for the purposes of laying out a procedure of construction, to be justified? Why model the procedure of construction on “basic ideas of person and society” rather than something else? Rawls might claim



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(a) that his procedure of construction, while excluding certain intuitions, more elegantly captures our overall sense of justice, including the bulk of our considered judgments; (b) that the contents he selects are somehow more fundamental or deeply held than other competing intuitions; or (c) that the contents he selects are better because they are distinctive of the modern moral worldview. The first claim, (a), might be a good justification, but it is difficult to imagine how Rawls could make an argument for it that persuaded anyone who was not already convinced. On Rawls’s terms, (c) is not much of an argument: intuitions are not more justified simply for being modern. And (b) could be argued in two ways: Rawls might simply contend that his selected contents are more strongly held than others, although again, it is hard to see how a convincing argument could be made for that.36 Alternatively he could opt for a more transcendental interpretation, claiming that the intuitions that he selects are fundamental preconditions for practical rationality in general, or the political use of reason in democratic society in particular. Although the overall flavor of Rawls’s corpus is contrary to this more cognitive approach, it does appear in places. Consider the following passage: We ask: what must persons be like to engage in practical reason? To answer we say that persons have the two moral powers as well as a determinate conception of the good. Their being reasonable and rational means that they can understand, apply, and act from two kinds of practical principles. (PL, 108)

Rawls says that political constructivism makes use of the conceptions of person and society that constitute conditions for the possibility of practical reason. We develop a public conception of justice from our basic conceptions of the moral person and society (as opposed to some other set of widely shared intuitions), then, because these latter conceptions form the context out of which practical rationality is exercised.37 Now, why should the fact that basic notions of person and society make practical rationality possible justify the claim that a public conception of justice ought to flow from these notions? One might argue that because they are the conditions for the possibility of practical rationality they have a privileged moral status. But that has the feel of an argument too philosophically laden for Rawls. Alternatively, one might try the following line of thought: we make use of basic conceptions connected to the exercise of practical rationality when constructing a conception of justice, because that is the only way to

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develop a conception that appeals to the common practical rationality of all reasonable people. That is, in order to characterize a conception of justice for reasonable persons, we reach back to the concepts that make practical reason possible in the first place, and use them to model a procedure of construction. If this is a plausible argument, then while Rawls does not demonstrate that the particular intuitions and moral conceptions that his theory organizes are the most prominent ones in our society, he need not concede that he is merely working up a selective set of these intuitions, arbitrarily excluding others.38 Rather, from among the moral and political intuitions generally shared in our society, he argues that a certain set are foundational for the use of practical reason and so are the most appropriate building blocks for a conception of justice that would appeal to common human reason—and, by extension, notions of desert and goodness should be subordinate in our thinking about political justice. Or at any rate, this is a defense that we can imagine Rawls making. In other places, he seems willing to concede that “justice is fairness” is just one consistent conception of justice among others, and that its superiority can be demonstrated only by actually winning the allegiance of citizens in a pluralistic society. When he emphasizes reflective equilibrium’s connection to political constructivism, however, we encounter a rather more cognitive defense of justice as fairness. Through political constructivism and the original position, Rawls tries to convince us (a) that reasonable conceptions of persons and society are particularly basic to the exercise of public use of reason in a democratic society, (b) that a determinate conception of justice can be seen as the result of a procedure of construction that embodies these conceptions, and (c) that so long as this conception is able to come into the wide reflective equilibrium of reasonable persons, it merits our acceptance on the basis of (a) and (b). But is this a good argument? Even if we concede (a) and (b), it is unclear why (c) should follow. It would be more convincing if Rawls were more forthcoming about the reasons why the notions of free and equal persons and the well-ordered society—and only those notions—ought to serve as the basis for a procedure of construction that will generate principles of political justice. Either the argument is (1) based on a normative claim about how conceptions of political justice ought to flow from the ideals that make the practical, public use of reason in a democratic society possible, or it is based on a descriptive claim that states either (2) that such a way of proceeding generates a political conception of justice having the



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greatest likelihood of becoming the object of an overlapping consensus, or (3) that such a way of proceeding is already amenable to our considered convictions. None of these claims seem particularly well founded—both of the empirical, descriptive claims (2 and 3) are dubious (in addition to inviting the descriptivist critique), and it is unclear how the normative claim (1) could be established within the context of Rawls’s freestanding theory. As a final gambit, we might remind ourselves of Laden’s reading of Rawls and recall that the argument moves entirely within the orbit of the reasonable; therefore, we may simply presume without further ado that our audience accepts the priority of the right over the good, and so will, as a matter of course, agree to subordinate concerns about goodness and desert in their thinking about political justice. But one can only get so much mileage out of an appeal to reasonableness—it cannot establish a priori what the proper boundary between the right and the good ought to be, and even if we could, it does not follow that reasonable people who accept this priority need also accept that the particular ideals Rawls picks out are the only ones relevant to political justice, much less that the original position is the appropriate device for constructing principles of justice.

5. t he force of the descriptivist critique With the concerns raised by the descriptivist critique in the background— that is, that Rawls’s new brand of political philosophy may amount simply to a normatively deflated account of the principles of justice that “reasonable” persons in Western democratic societies are likely to find most congruent with their considered convictions, over time—this chapter has been considering the kind of justifications that Rawls offers for justice as fairness. We have been able to observe that Rawls does not really intend some of the concepts that appear to be most descriptive in character—overlapping consensus and reflective equilibrium—to provide a self-sufficient justification for justice as fairness: overlapping consensus is, in the end, simply a mark of the deepest and broadest form of legitimacy that a pluralistic society can hope to enjoy, and Rawls never claims that reflective equilibrium singles out any particular conception of political justice as being uniquely appropriate to the basic moral intuitions of the modern moral worldview. Instead, the intuitions of the modern moral worldview are compatible with a wide family of conceptions of justice, including justice as fairness’s major competitors: utilitarianism, intuitionism, meritocracy, and the like. It is,

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of course, important for Rawls to be able to claim that his conception of justice could be the object of an overlapping consensus, and that it would make a reasonable basis for social cooperation and the exercise of public reason. But for Rawls, a real normative defense of justice as fairness involves an account of how the principles of justice are constructed in a fair situation of choice that models basic concepts and intuitions of the modern moral worldview. So far, though, we have found that Rawls does not offer a compelling account as to why justice as fairness’s constructivist status imbues it with any particular normative weight, especially when addressing reasonable persons with strong intuitionistic or meritocratic intuitions. So, while Rawlsians should not take the descriptivist critique lightly, the question of its force is complicated. In the next chapter, we will consider some powerful interpretations of Rawls that self-consciously attempt to defend him against the descriptivist critique by loosening Rawls’s self-imposed restrictions against relying on moral-foundational accounts of the constructivist procedure’s authority and the demands of public reason. I will wait until Chapter 7 to consider an avenue for developing Rawls’s theory that emphasizes its ties to the theory of democracy and that links him most closely with the high social contract tradition of Rousseau and Kant: what Rousseau in particular seems to be advocating with his concepts of the social contract and the general will is a form of political life that overcomes the blind and servile mutual dependency of the modern world by orienting political life around ideals equally in the interest of all, thereby creating a transparent and reciprocal form of dependency. Since this idea of the transparency of political relations seems to me to involve some consideration of how law mediates political relations, I put off consideration of that path until we introduce the legal medium in later chapters.

chapter three

Rawls between Metaphysics and Proceduralism

We have seen that although some of the criticisms that have shadowed Rawls’s political turn, which I have gathered under the heading of the descriptivist critique, are too crude to damage a sophisticated reconstruction of his theory, on the whole, the concerns that they raise are not overblown. The most direct way of responding to these worries is to conclude that some of Rawls’s methodological restrictions are too austere, and that we ought to be able to defend the substance of Rawls’s liberal, egalitarian conception of justice, as well as his aim of accommodating principles of justice to conditions of pluralism, while emphasizing that, ultimately, Rawls’s approach needs to be based on an ethical demand to propose rationally acceptable principles of social cooperation to others. This is the moral-foundational reading of Rawls. This chapter attempts to locate the point upon which Rawls’s theory falters on the descriptivist critique, and then examines this moral-foundational reading as a possible response. I start by reviewing what I take to be a serious tension between the more cognitive (“Kantian”) elements of Rawls’s justificatory scheme and the “political, not metaphysical” accent that he gives his theory in later years, concluding (1) that Rawls’s theory falters on this tension and that he cannot have the best of both worlds by leaving it unresolved. I then turn to a line of interpretation of Rawls’s project, most prominently championed by Ronald Dworkin and Charles Larmore, that stresses this need to provide a moral foundation for Rawls’s approach. I argue (2) that, although this interpretation (or, more accurately, friendly modification) of Rawls responds to a real problem for his theory, the attempt to blend moral foundationalism with Rawlsian aspirations

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to provide a public conception of justice proves unworkable. I conclude with some remarks (3) that serve to transition us from Rawls to Habermas, by suggesting that Habermasian proceduralism might be in a position to resolve the theoretical difficulties that persistently trail the Rawlsian approach.

1. “political” rawls and “kantian” rawls Let us start by revisiting Rawls’s characterization of his theory of justice as “freestanding.” To make this claim about the status of the theory is to say that its public justification depends on none of the props that moral and political philosophers have typically relied upon: appeals to self-evident principles, the derivation of moral facts, and so forth. Rawls maintains that only a public conception of justice that is agnostic about its moral foundations can fulfill its function as a basis for social cooperation in a pluralistic society. But this insistence that the justification of the conception of justice relies on nothing more than its potential for acceptance by reasonable persons is what sets the descriptivist critique into motion. If Rawls were simply relying on the straightforward claim that “we” can or do accept justice as fairness, then we would have a theory that was largely descriptive—one that takes stock of our common moral-political beliefs and makes an educated guess about the prospect for an overlapping consensus. Such a theory could clearly be seen as freestanding: by merely documenting beliefs, it would commit itself to no specific theoretical claims about why people should hold those beliefs, and since its normative force comes only from the fact of its eventual acceptance of justice as fairness among citizens, no specific claims need be put forward to explain why justice as fairness is binding. But such a theory would not be a normative one, in the sense of having rational authority or critical potential. As we saw in the previous chapter, introducing constructivism and practical reason as the crucial links between reflective equilibrium, the original position, and the political conception of justice steers Rawls in a more strongly normative direction: his claim is not that we actually do accept the original position as an appropriate procedure of construction but that, given a selective set of things that we, as reasonable people, do believe, we should accept it.1 Granted that highlighting the constructivist leanings of Rawls’s theory in this way makes it more of a normative theory, does it make it less of a freestanding theory? If the “political” Rawls and the “Kan-



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tian” Rawls are reconcilable, the answer must be no. Rawls would no doubt emphasize that his theory’s authority derives not from any philosophical account of moral or theoretical truth, but from the reasonable, which he has consistently claimed can be clearly presented without philosophical commitments. And, of course, highlighting the constructivist dimensions of the Rawlsian theory need not obscure the role of reflective equilibrium: if the substantive output of the procedure of construction—the political conception of justice and its associated concepts—turns out to be unacceptable to us in wide reflective equilibrium, then it cannot be justified. Acceptance or rejection in reflective equilibrium ultimately has the last word in matters of justification. But now that we have all of the pieces of Rawls’s justificatory apparatus in front of us, it is very hard to determine whether and to what degree the constructivist dimensions of his theory actually transform it from a largely descriptive enterprise into a normative one. In order to produce a conception of justice, as we have seen, the procedure of construction selectively models normative concepts (the conception of citizens as free and equal persons, the two moral powers, the well-ordered society, and so forth), and this selectivity would seem to be in need of justification. The contention that the original position is developed from normative concepts that are foundational for the exercise of practical reason was, in the last chapter, the leading candidate for such a justification. But Rawls is unclear about whether we should understand this rationale in a descriptive, functionalist, or normative manner. As we have seen in the last chapter, the normative rationale is too “metaphysical,” and the functional, descriptive rationales are empirically dubious and threaten to expose Rawls to the descriptivist critique. Although, at the end of the last chapter, I dismissed the possibility of settling these difficulties by appealing to the reasonable, one could contend that reasonable people can be brought to agree that articulating a conception of justice constructed from the bases of practical reason is the most appropriate way for them to arrive at a public, political conception of justice, since it ensures that such a conception is endorsable from the perspective of their common reason. I offered a suggestion akin to this in the previous chapter’s discussion of the relationship between the overlapping consensus and public reason, wherein I posited that the public character of reason implies that it is appropriate for reflective individuals to structure their conceptions of justice with an eye toward their rational acceptability to others. This would, moreover, give the progression toward an overlapping consensus the character of a public project, and a historical achievement, rather

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than something we can only hope for. But Rawls, I concluded, with his insistence on the sharp distinction between public reason and the private rationality of comprehensive doctrines, cannot accept this point. Our inability to distinguish the descriptive and normative elements of Rawls’s project is not accidental. In Theory, when Rawls initially describes the method of reflective equilibrium, he briefly compares it to a Chomskian depth grammar: he suggests that when we codify the method of reflective equilibrium, we are capturing the deep structures of moral thought, analyzing the conditions for the possibility of reliable moral judgment, just as a depth grammar analyzes the structures that make possible the recognition and formation of grammatical sentences (TJ, 46–47/41–42). Rawls does not develop this tantalizing suggestion, but the reactions to it have been interesting. Habermasians no doubt perk up when reading this section, as it sounds very much like Habermas’s idea of uncovering the normative idealizations that must be assumed by participants in discourse for mutual understanding to be possible. Indeed, Kenneth Baynes has made this comparison explicit, suggesting that Rawls could develop his theory in this direction, if he wanted to add a stronger cognitive, normative dimension to it.2 Commentators more sympathetic to Rawls, such as Scanlon and Norman Daniels, dismiss these passages as an unfortunately descriptive interpretation of reflective equilibrium, concluding that no normative framework could be captured by the quasi-scientific observation of a cognitive faculty’s operations.3 The confusion is understandable. Rawls is rather vague in his suggestion that this “depth” approach uncovers the normative core of our moral sense, and seems to vacillate between that claim and the more scientistic one to the effect that it simply describes the neutral structure of a certain mental competency that human beings happen to have. A defender of Rawls, reacting to my contention that he muddles the distinction between descriptive and normative inquiry, might argue that, on the contrary, the division of labor between the normative and descriptive is clear and corresponds to the two sides of Rawls’s theory laid out in section 1 of Chapter 2. On the one hand, there are the three levels of justification. This end of the theory, for the political philosopher, is essentially descriptive: it defines the steps through which a conception of justice could be justified and made to serve as a basis for the legitimate exercise of political power—we can observe individuals and societies to determine whether they satisfy the conditions for a certain level of justification. On the other hand, there are the three standpoints from which reasons in favor of a conception of justice may be offered. The descriptive side maps and



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traces private beliefs about justice, and the normative side is found in the three reason-giving standpoints, which tell us what sorts of considerations should count in favor of a conception. Although the two components of Rawls’s theory do complement each other in this way, pointing that out fails to assuage the present worry, for the two ends of the theory are deeply intertwined, and neither can properly be described as plainly descriptive or plainly normative. The architechtonic of the three levels of justification is clearly informed by a normative conception of what it is for a conception to be justified. By itself, this is both unsurprising and untroubling. A defender of a more traditional form of normative political philosophy would presumably not have a problem with such an explication of how justification works in practice, but would expect the normative side of the Rawlsian theory to specify the sorts of reasons that should count in favor of a conception of justice. But it is not apparent that Rawls is doing anything like this. At the end of the day, he is clearly a partisan for justice as fairness, as opposed to competing conceptions of justice, so he cannot intend simply to describe the de facto reason giving stances that happen to be available to us. There is no doubt, however, that the standpoints he describes are heavily conditioned by empirical circumstances; and it is unclear what sort of justification Rawls could offer, other than a dubious explanation that risks being subject to the crass interpretation of the political turn (that is, that Rawls is merely looking for a conception of justice that we will be able to form a workable consensus around), for constructing his principles of justice from the basic conceptions of person and society. It may seem that, after developing Rawls’s arguments at some length, I am now strangely insisting that he fails to live up to an expectation that his project abjures from the beginning. Surely Rawls rejects any notion of a pure normative standpoint. To quote from the last paragraph of Theory: “The perspective of eternity is not a perspective from a certain place beyond the world, nor the point of view of a transcendent being; rather it is a certain form of thought and feeling that rational persons can adopt within the world” (TJ, 587/514). The normative standpoint can only be taken up from where we are, here and now, and thus will inevitably be empirically conditioned in a variety of ways. Moreover, we could add that part of the point of Rawls’s political turn, and his rejection of “comprehensive” theories, is precisely to reject any sharp distinction or division of labor between the normative and the descriptive in political philosophy. Finally, it might be argued in an almost Humean spirit that it makes no sense—for political philosophers, at least—to ask what reasons we really have for accepting a

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conception of justice, beyond the ones already at our disposal, in a reflective mode, here and now. We can agree with much of this. However, to overcome a theoretical division of labor that one finds miscast—in this case, the distinction between a pure normative theory and a descriptive theory about political beliefs and culture—one needs to do more than merely reject it and say that now we are doing something freestanding and political (but still normative), and not comprehensive or philosophical. That leaves many important questions about the self-understanding of political philosophy itself unanswered: what, if anything, is the theory trying to convince us of that we did not previously believe? Or, more to the point: what rational authority do these arguments claim over us, especially those of us for whom justice as fairness does not fit smoothly into our comprehensive doctrine? And thus, although Rawls’s theory clearly has prescriptive and critical intent, it is hard to see how he squares this with his practical intent and his freestanding methodology.

2. the moral-foundational reading of rawls So far, then, our investigation of Rawls’s notion of a freestanding theory has failed to exonerate him from the descriptivist charge—the main reason being the dependence of the political on private reasons that can, from the perspective of the political philosopher, be captured only in descriptive terms. As a consequence, we cannot give an account of what the validity of either justice as fairness or the practice of public reason consists in, and that, in turn, tempts us to give either a crass or a descriptive account of their validity: that political validity is just what we are prepared to accept on reflection, or at any rate, what we (or at least people like us) are likely to accept, insofar as that can be determined. In this section and the next, we will examine two lines of interpretation of (or friendly modifications to) Rawls that might skirt the pitfalls of the descriptivist critique. Both offer a clarification of the normative source that nourishes Rawls’s enterprise. The first interpretation I will call the moral-foundational interpretation, and it has been put forward, in somewhat different but complementary ways, by Dworkin and Larmore; it seeks to interpret Rawls’s theoretical apparatus as the extension and interpretation of a more basic moral norm that underwrites the rational authority of justice as fairness. The other reading I will call the procedural alternative, which has been suggested, although not fully



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developed, by Habermas, and it contends that what is lacking in Rawls’s enterprise is not the support of a basic moral norm but rather a normative, epistemically grounded account of public reason that could support a more shared public standpoint than we find in Rawls. In both accounts, we need to be attentive to the persistent tension between this search for clearer normative sources and Rawls’s ambition to make his theory freestanding. Let us recall our discussion of G. A. Cohen’s critique of Rawlsian constructivism in Chapter 2: Cohen argues that Rawls’s principles of justice cannot be first principles, since their authority can only be grounded by reference to principles that are not constructed—or as he puts it, principles that are fact-insensitive. One way to save Rawls from this charge is to bring to the fore the moral basis of Rawls’s constructivist project. There has long been a nagging suspicion among some of Rawls’s critics that either he is not being entirely forthright about the moral impetus behind his project, or that it simply boils down to an attempt to make our moral-political intuitions coherent. Although Rawls’s political turn heightens this suspicion, it can be seen from the outset. In an early (1973) and quite interesting reaction to Theory, Dworkin has made the case that Rawls’s theory of justice ought to be viewed as an attempt to interpret our intuitions about justice as the products of a deep moral principle: a natural right to equal respect and concern.4 Dworkin begins by observing that although Rawls clearly means for the selection of the two principles of justice in the original position to be an argument in their favor—perhaps a decisive one—it is not immediately obvious why that should be so. After rejecting several ideas about what the argument from the original position might be intended to show, Dworkin argues that Rawls treats the original position neither as the foundation of his theory nor as a mere expository device (as Laden contends), but rather as one of the “substantive products” of the theory as a whole, an intermediate product between the moral foundation of the theory and the substantive principles that emerge out of the original position. Dworkin picks up on Rawls’s somewhat imprecise remarks in Theory that suggest that the original position is meant to represent moral principles that we do, in fact, accept, in the sense that they are fundamental to our having a sense of justice in the first place (TJ, 21–22/18–19, 50–51/43–44, 587/514). Dworkin writes: The original position is therefore a schematic representation of a particular mental process of at least some, and perhaps most, human beings, just as depth grammar, [Rawls] suggests, is a schematic presentation of a different mental

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The original position, on Dworkin’s reading, is an expression of some very deep moral commitments that is designed to show us what those commitments imply with regard to more concrete principles for justly organizing society. To understand why we are committed to the outcomes of the original position, we must understand it as an outgrowth of a deeper conception of morality. The principles or commitments that the deep theory specifies may be constitutive for the human capacity for moral judgment as such, or they may simply be pervasive and widespread assumptions about morality and justice such that they make possible reasoning about justice in the context of our society.6 Either way, they possess a kind of foundational status. Dworkin seeks to define this deep theory by analyzing the key structural features of Rawls’s argument in order to draw out its normative underpinnings. From Rawls’s characterization of the method of reflective equilibrium, with the give-and-take between judgments and principles that he recommends, Dworkin concludes that the deep theory must consist in a single principle or closely related set of principles; this aspect of the deep theory explains the methodological requirement to make the gamut of our judgments about justice internally coherent. That is, reflective equilibrium rules out the possibility that the deep theory underlying Rawls’s argument could be a set of discrete, unrelated moral commands, intuitionistically determined, for if that were the case, the principles of justice would not necessarily need to be coherently related to one another—that is, they would not necessarily, when taken together, constitute a unified conception of justice—in the way that Rawls insists that they do. Next, Dworkin lays out a typology of potential deep theories: goal-, duty-, and rights-based theories. The first type of deep theory would take the promotion of some social goals (for example, happiness or virtue) to be basic; the second would take some set of social duties (such as acting morally or obeying political authorities) to be fundamental; and the third would take some set of individual rights to be basic. What kind of deep theory supports Rawls’s argument? From Rawls’s use of the device of the contract, Dworkin concludes that a deontological theory of rights (and not a deontological theory of duties) must underlie Rawls’s argument, since a teleological deep theory that based principles of justice on the achievement of a set of fundamental goals would not employ the device of a contractual



Rawls between Metaphysics and Proceduralism

situation, in the first place; instead, it would do away with the contractual device, deeming such a thing, in Hume’s phrase, to be an “unnecessary shuffle,” and would instead move to straightforwardly endorse teleological principles of justice (for example, utilitarianism). The feature of a contract that singles it out as the device of a deontological rights theory is the fact that individuals have the power to veto a contract. The contract device assumes that individuals come to the contractual situation with interests that they are entitled to protect and advance by either agreeing or declining to enter into the contract—any individual may veto the contract and make it void for everyone by deciding it is not in his or her interests to enter into it. In goal- or duty-based theories, this individual veto power does not make sense, since an allegedly fundamental goal or duty could justify overriding the interests of individual persons. For the use of the contract device to be justified, the rights of individuals to advance and protect their interests must be primary; the existence of social obligations must be subsequent to the establishment of the contract; and the promotion of social goals must be subordinate to the protection of individual rights. Since a basic right or rights must be seen as informing and justifying the construction of the theory of justice, and these rights must not be the product of that theory, or any other legislation or custom, a natural rights theory must underlie Rawls’s theory of justice.7 Now that Dworkin has established to his satisfaction that a deontological theory of rights must support Rawls’s argument, the question is: what right or rights? In order to answer this question, Dworkin looks to Rawls’s particular version of the contract device: the original position. Dworkin notes that the original position serves to produce an agreement that is in the “antecedent,” not the “actual,” interest of everybody—that is, it serves the fully general interests of all persons, before they are in a position to know what their actual, particular interests are. This serves to limit the power of the individual’s veto over the contract, by limiting the interests that individuals are able to protect in the contractual situation. For Rawls, in fact, individuals are denied any specific knowledge of their interests, meaning that his fundamental right must be “an abstract right, that is, not a right to any particular individual goal.”8 On closer examination, we see that the original position constrains the contractors to treat everybody’s general antecedent interests in the same way, giving them equal regard. And so, the deep theory that underlies Rawls’s theory of justice is a natural right to equal respect and concern. The original position serves as a device for testing ways that this deep theory might be actualized in the design of political institutions.

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Lest we think that Dworkin’s argument is obviated by subsequent developments in Rawls’s theory that focus less on the original position, Larmore makes an argument that bears a striking resemblance to Dworkin’s, while updating it to account for Rawls’s more recent focus on public reason and liberal legitimacy. Larmore regards Rawls as correct for insisting that political liberalism be understood as freestanding, but he also contends that the freestanding method must be understood as a response to a moral impetus that itself warrants articulation. Explicitly responding to the concerns raised in the descriptivist critique, Larmore cites with approval Dworkin’s idea that a norm of equal respect underlies Rawls’s project.9 In Larmore’s own version of political liberalism, the essentials of liberalism (that is, toleration and the priority of the right over the good) are justified by a formal principle of rational dialogue (which advises us to settle disputes on the common ground available to us, bracketing disagreements over the good) and a principle of equal respect for persons, which prohibits making compliance with political decisions depend only on force.10 If political liberalism is to succeed in being political and freestanding, it must seek to legitimate political power by offering justifications that reasonable people cannot reasonably reject, whatever their comprehensive doctrine may be; hence, Larmore endorses Rawls’s criterion of reciprocity and his principle of liberal legitimacy. Of course, justifying liberalism and its use of political power with only the resources that all reasonable people could agree upon departs from the classical method of defending liberalism. Noting that, historically, the most prominent liberal doctrines (Locke, Kant, and Mill) rejected the freestanding method and defended their claims by appealing to values of autonomy or individualism, Larmore asks: “Why should liberal thinkers not . . . dig in their heels and, observing correctly that no political conception can accommodate every point of view, maintain that liberalism stands or falls with a general commitment to individualism?”11 The answer to this question must be that some motive that is not merely strategic (since Rawls repeatedly rejects modus vivendi liberalism [PL, xxxix–xliii; CP, 588] and maintains that a political conception of justice is a moral conception [PL, 11]) must explain why we ought to conduct our politics in a manner acceptable to those who disagree with us about the values that justify a liberal political order. The criterion of reciprocity and the principle of liberal legitimacy are supposed to be normative in more than a hypothetical sense—that is, they are not just principles that we should adopt just in case we happen to be interested in establishing terms of social cooperation in a pluralistic society. On Larmore’s reading, this means that



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some moral principle underlies the articulation of the content of political liberalism (including all of its substantive contents: the norms of public reason, the principle of liberal legitimacy, the original position, and the two principles of justice), justifying the obligation to seek terms of cooperation that are justifiable to others. As with Dworkin, this principle is that of equal respect for persons. Larmore writes: “Respect for persons lies at the heart of political liberalism, not because looking for common ground we find it there, but because it is what impels us to look for common ground at all.”12 While Larmore emphasizes that the norm of equal respect constitutes, at most, a “minimal morality” and is therefore not a comprehensive doctrine, he regards it as a mistake to think that political liberalism could still be normatively rich if it were thought to be freestanding with regard even to this moral principle. Thus, for Larmore, the principle of equal respect possesses an authority that is logically prior to the validity of political justice and constitutional principles: “[O]nly so can we make sense of why we are moved to give our political life the consensual shape it has.”13 At this point, we can assess the moral-foundational interpretation by asking three questions: First, how does it defuse the criticisms implied by the descriptivist critique? Second, is it a plausible reading of Rawls? Third, is it an attractive way to understand the freestanding paradigm of political philosophy? The answer to the first question is clear enough. One of the worries that the descriptivist critique raises is that Rawls’s freestanding theory cannot give an account of the validity of consensus at a basic level, beyond sheer voluntarism—that is, it cannot explain why agreement and consensus are marks of validity in the first place, or whether justice as fairness has any normative authority in the absence of an actual consensus on it. In this regard, Dworkin and Larmore make complementary arguments. For Dworkin, the validity of the original position and the principles of justice selected in it stem from their being a specification of the fundamental right to equal respect and concern. It is this principle that informs the original position and makes it binding upon us. And Larmore contends that the reason agreement is important and lends validity to political principles of justice is that a principle of equal respect impels us to seek agreement, so that citizens are not subject to coercion for reasons that they would reject; morality demands that our politics be oriented toward consensus. By appealing to what they take to be a fundamental and valid moral principle, Dworkin and Larmore free the validity of justice as fairness from dependence on the exigencies concerning its actual prospects for acceptance.

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Both Dworkin and Larmore are, however, aware that their readings are to some extent at odds with Rawls’s texts. In “Justice as Fairness: Political not Metaphysical,” Rawls notes and rejects Dworkin’s argument: he takes issue with Dworkin’s typology of goal-, duty-, and right-based theories and the subsequent claim that political theories must fit into one or another of these categories. Rawls therefore denies that his theory is based on a conception of rights, and instead says that justice as fairness is “conceptionbased” or “ideal-based,” since it is worked up from fundamental, intuitive ideals (CP, 400 note 19). Presumably, Rawls adopts this terminology in order to beg off Dworkin’s attempt to specify the normative foundation of his theory. By saying that his theory is based on ideals of freedom, equality, and a well-ordered society, rather than on some set of rights, duties, or goals, Rawls acknowledges that these ideals are open to a host of reasonable interpretations, and he does not want his theory to be tied to any one particular rendering of their normative authority. Larmore’s reading encounters similar textual difficulties.14 In particular, Rawls contends that all of the principles in his theory have the same status insofar as they are products of the same stage of theory construction: In justice as fairness, and I think in many other liberal views, the guidelines of inquiry of public reason, as well as its principle of legitimacy, have the same basis as the substantive principles of justice. This means in justice as fairness that the parties in the original position, in adopting principles of justice for the basic structure, must also adopt guidelines and criteria of public reason for applying those norms. (PL, 225)

As Larmore’s interpretation would have it, the principle of equal respect demands that political life be oriented around an ideal of consensus that is expressed by the principle of liberal legitimacy. That principle therefore has a prepolitical status for Larmore: it expresses the external demand that morality places on politics. Rawls, however, repeatedly denies that the process of theory construction is subject to substantive constraints, externally imposed (PL, 93; CP, 354; R, 406). One suspects that Dworkin’s and Larmore’s readings move the theory in a direction that Rawls would regard as too intuitionistic. But given the difficulties we have had extricating Rawls from the descriptivist critique, we should consider whether the moral-foundational interpretation might nevertheless be a good way of developing the appealing notion that a political theory concerned with the autonomy of persons, and cognizant of reasonable pluralism, ought to be articulated in a freestanding manner, even if it is at odds with some of the details of Rawls’s theory. To be sure, no one thinks that a theory of justice could be so completely free-



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standing that it draws on nothing substantive outside of itself. Rawls, as we know, develops his own freestanding conception from the perspective of the reasonable—that is, from the perspective of “we” who share a commitment to fair social cooperation, recognize that reasonable disagreement is an ineradicable feature of our social life, and share, at least in a loose way, a commitment to the modern moral worldview (PL, 103). The worry of Rawls’s moral interpreters is that this is not enough to explain why an agreement that proceeds from this basis ought to have normative authority over us, and not enough to explain why one of the interpretations of these commitments and ideals (that is, justice as fairness) is more appropriate than others. And so the moral readers posit a moral source that lies beneath the theory, both vindicating its enterprise and licensing the belief that there is a correct answer to the question of which interpretations and applications of our fundamental moral commitments are best. Now, two questions about the viability of this approach come to the fore: first, how is the fundamental moral principle identified itself to be vindicated? This question will lead us to consider, second, whether the moral interpretation is compatible with a theory that is still credibly freestanding. I said a moment ago that Rawls would likely consider the Dworkin-Larmore interpretation to be too intuitionistic, insofar as they end up positing ultimate principles that are said to have authority prior to the construction of the principles of justice. How is this prepolitical authority established? Let’s look at Dworkin’s argument.15 He applies an interpretive method to the substantive components of Rawls’s theory: the contractual device of the original position, the principles that are its outcome, and the moral intuitions that the original position models. Dworkin tries to determine what deep theory provides the best interpretation of these substantive products. This approach will be familiar to anyone acquainted with Dworkin’s wellknown theory of legal interpretation, wherein he proposes an ideal figure of Hercules (a preternaturally gifted and knowledgeable judge) who decides “hard cases” by figuring out what moral theory best weaves together and justifies the statutes, judicial decisions, and legislative histories that are relevant to the case—the moral theory then guides the decision in the specific case at hand.16 Dworkin argues that Hercules represents a normative ideal that it makes sense to aspire to, since the decisions made by Hercules in hard cases are not subjective or voluntaristic, but admit of correct answers.17 Now, in his interpretation of Rawls’s theory of justice, Dworkin does something quite similar by gathering together all the substantive pieces of Rawls’s theory and asking what moral theory would best integrate and justify them. This parallels what Hercules does with legal texts: he asks what

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moral theory best synthesizes the relevant positive laws, and casts them in the best light, morally speaking, so that he can use that moral theory to help decide how the law applies to a new case. But this approach makes much more sense in legal theory than it does in this context. In legal theory, Dworkin argues, we are obliged to take this approach in order to respect the principle that like cases ought to be decided in a like manner (that is, what Dworkin calls the value of “integrity”: having our political community governed according to a consistent set of principles).18 In order to respect the value of integrity, Hercules must achieve a view about the moral underpinnings of all the relevant laws in order to see how he can make his decision in the case at hand continuous with the principles that underlie the rest of the laws of his community. Hercules would be subverting the rule of law, according to Dworkin, if he interpreted positive law in accordance with what he thought it should be, or failed to make the interpretive effort to connect his decision with the moral principles that inspire the system of law as a whole. My purpose here is not to defend or criticize Dworkin’s theory of legal interpretation, only to point out how the given-ness of positive law makes his view appealing: legal decisions in novel cases have to reckon with facts about what positive law actually says, facts about the legal history that we happen to inherit. The moral theory that Hercules arrives at is called on to do pressing interpretive work: we have a case in front of us that is underdetermined by statute and precedent, and we require a way to decide it that respects the principled integrity of the legal system. In the case of Rawls’s theory of justice, however, there is no social practice analogous to that of legal interpretation; instead, the theory of justice applies to a bevy of social practices carried out in all manner of formally and informally institutionalized contexts (legislation, constitutional conventions, judgments about justice, public argumentation, and so forth), and it would be surprising if there were some ur-norm that we could use to interpret and justify them all. Moreover, since positive law is given, the interpreter is faced with concrete materials (that is, the laws themselves, and the history of their interpretation) that demand to be interpreted; if integrity is to be respected, according to Dworkin, we have no choice but to interpret the law with the aid of a deeper moral theory that is not part of the letter of the law itself. But the question is different in our context: we want to know whether the original position is a good device to use for developing a theory of justice. While Hercules cannot simply ignore what the law actually says and decide cases as he thinks they should be decided, as theorists of justice, we are in a different position: we are free to reject Rawls’s ap-



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proach if we like. If we simply take it as axiomatic that the original position is the morally appropriate device of representation for developing a theory of justice, then we may find, as Dworkin and Larmore do, that a principle of equal respect and concern helps us to make sense of this axiom. In legal interpretation, on the other hand, the question of whether the moral theory underlying the best interpretation of our legal history is, in fact, the true moral theory is actually secondary, since true or not, using the moral theory that underlies the relevant legal history to decide future cases supports the integrity of law and the values of the rule of law.19 But in the case of a theory of justice, we want to say: no matter that the principle of equal respect helps make sense of the piece of Rawls’s theory, what we would like to know is whether such a principle is really what a conception of justice ought to be based on, and whether thinking of a conception of justice as an interpretation of such a deep moral principle is how we ought to think of it in the first place. Larmore’s and Dworkin’s intuitionistic assurances on these matters will likely ring hollow, but even if we accept them, this is not a path open to a freestanding theory. A freestanding theory will reject or at least be agnostic about the possibility of such intuitionism. The point is not to argue about whether there are answers to questions about ultimate norms, or even whether or not they can be ascertained in an intuitionistic manner, but rather that there is reasonable disagreement about such matters. A freestanding conception of political justice is meant to be compatible with various conceptions of the ultimate roots of justice—for example, God’s will, a doctrine of autonomy, of individualism, the common good of the community, and so forth—and a freestanding theory will not anchor itself to any of these accounts. Now, it might be thought that the commitment to freestanding-ness applies only to the content of the conception of justice and not to the normative underpinnings of the theory. That is, we might say: “As a practical matter, it is important that our conception of justice be compatible with any reasonable comprehensive doctrine, and that for the sake of social cooperation we will not quarrel with any reasonable person who endorses what we know to be the most reasonable conception, even if they do so for their own idiosyncratic reasons. Nevertheless, as philosophers, it is incumbent upon us to elaborate why we are obliged to take this approach and what ultimately grounds and constrains our interpretation and application of principles of justice.” But this line of thought betrays the intent of a freestanding theory, for at some point it is liable to make a difference, as far as the interpretation and application of justice is concerned, whether we think that what under-

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lies our political conception is a natural right to equal respect, as opposed to God’s will, a commitment to individualism, and so on. This is, after all, the whole point of Dworkin’s interpretive method: we seek the underlying deep theories of morality because these theories can then provide guidance to us when we are applying legal norms or principles of justice in concrete cases.20 If we insist that the conception of justice is properly interpreted and applied only in light of a deep principle that we have philosophically divined, we are giving other reasonable people reason to reject it—precisely what a freestanding theory tries to avoid. This point—that people who agree on principles, but disagree about the normative underpinnings of said principles, will find that their underlying disagreements will bleed into disagreements about how the principles of justice should be applied to specific cases—is one that we will return to in Chapters 7 and 8. As a final way to salvage the moral interpretation, we might say that, for the sake of social cooperation, we ought not to advertise our real reasons for endorsing the political conception, and just present the content of the theory to the public, allowing them to embed the substantive principles within their comprehensive doctrine as they see fit, even though we know what the conception’s true moral foundation is; perhaps this is why Rawls never said in so many words that a baseline commitment to a principle of equal respect is what informs his project, even though, arguendo, that is what he really thought. We can see that this line of thought is devolving into a bizarrely Straussian position, holding that there is a “secret teaching” behind Rawls’s thought that is dangerous for him to reveal (since it undermines his effort to forge a reasonable consensus), but that the philosophically acute reader can pick upon. While I will not dismiss such a position a priori, it is surely quite at odds with the spirit of Rawls in particular, and a freestanding, public reason approach in general. What the argument so far seems to indicate is that a freestanding approach in political philosophy is, by its very nature, in a precarious theoretical position. By completing the lessons that liberalism began to absorb in the aftermath of the Reformation, a freestanding theory presents itself as being essentially tied to no particular “comprehensive” rationale for the principles and other content that it produces, but by abandoning the attempt to ground the principles, and even the validity of the approach itself, the freestanding theory exposes itself to the descriptivist critique. In order to counter the descriptive interpretation, we may be tempted to provide a subtler account of the moral underpinnings of our theory by engaging in the interpretative enterprise carried out by Dworkin and Larmore. But, as



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we have just seen, this move faces a number of obstacles: it either skews or undermines the original intent of the freestanding approach. Does this reveal the freestanding approach to be unstable, even bankrupt, in that it cannot be consistently thought through? If the options for this paradigm were exhausted by the descriptive and the moral interpretations, then we would have reason to think so. But there is another avenue that we might take at this point, which, though in some ways quite in the spirit of Rawls, represents a departure from many of the specifics of his doctrine.

3. t he procedural alternative By now, we can see that many of the problems that Rawls’s version of the freestanding paradigm runs into are a result of his division of labor between the public and the private: the public perspective of political justice is constructed out of substantive intuitions mined from private comprehensive doctrines and depends upon the private for its validity: people may understand and justify the conception in their own ways. The problem is that this dependency is one-way: the political philosopher cannot say what makes a conception of justice worthy of public recognition, only that it is agreed upon. We might profitably turn to Habermas’s procedural approach at this point, in order to respond to some of these difficulties. A procedural approach will reject the one-way dependency of the public on the private and argue that our common reason does dictate certain standards for action and belief that are independent of whatever is contained in our private worldviews. Habermas’s rather “theory-heavy” work is not normally associated with the more austere freestanding model; his resemblance to Rawls is more often attributed to their common neo-Kantianism.21 But this is a misleading view, or at any rate, a partial one. Like Rawls’s freestanding theory, the Habermasian program is committed to philosophical modesty in the form of a division of labor between philosophy and actual persons engaged in political will formation, where certain substantive issues are delegated to the latter. In the Rawlsian version, actual persons are delegated the task of embedding the political conception of justice within their own comprehensive doctrines and applying its principles. In the Habermasian version, the modesty is, if anything, more sweeping: questions of substantive justice are left up to democratic procedures. To that extent, Habermas does not have a theory of justice in Rawls’s sense. But if we think of Rawls’s project

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as having the more general aim of providing us with a publicly accessible framework for thinking and talking about political justice and justifying or contesting the use of political power (R, 397), then the Rawlsian theory of justice and Habermasian democratic proceduralism will seem more akin. Instead of organizing this public framework around a set of substantive ideals, and a conception of justice implied by them, as Rawls does, Habermasian proceduralism is organized around a set of norms governing the process of raising and contesting validity claims, including moral and legal ones. This may sound like an even more austere version of Rawls’s freestanding theory, as Stuart Hampshire’s proceduralism arguably is.22 What underlies Habermasian proceduralism, however, is not the idea that procedures, as opposed to substantive matters, are all that it is realistic to expect reasonable agreement about, but rather the complex thesis that, in modernity, the reason that we share prescribes to us no substantive norms for thought or action, only a series of rational procedures for testing validity claims. These procedural norms are said to be authoritative for all agents engaged in communicative action. For Habermas, we share in communicative reason by virtue of being socialized in a natural language: we know what it is to raise and redeem validity claims. And though our substantive worldviews may differ, the means for communicative understanding are always in place, ready to be taken up. Habermas’s main suggestion for Rawls is that the problematic consequences of constructing the public perspective out of insulated private worldviews could be dissolved if the reasonable were given a stronger normative and epistemic status, and could therefore claim some authority over comprehensive doctrines. For Habermas, this involves a theory of rationality according to which norms for rational inquiry are not justified through reflective equilibrium—that is, they are not valid because we have reflectively settled upon them as the best way that we can find to settle questions and disputes peacefully. Rather, norms for rational inquiry are justified by way of an analysis of the presuppositions involved in participating in rational discourse in the first place. The substantive elements of Habermas’s thought—in particular, for our purposes, what he calls “the system of rights”—fall out of a presuppositional analysis of the conditions for free, undistorted communication. It may seem as though the Habermasian perspective is, in a way, much less public than the Rawlsian one, since its procedural conception of political rationality would not be agreed upon by citizens who have substantive conceptions of reason—that is, who take certain propositions or norms to be true, right, or good regardless of whether they can be discursively re-



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deemed.23 There is no doubt some truth to this, but desirable or not, it is largely a consequence of maintaining that there are norms that people are committed to simply by virtue of taking part in various communicative practices, and that people can fail to live up to those norms despite what they think, and may be justifiably criticized as such. For Habermas, substantive conceptions of reason that appeal to authorities beyond the force of the better argument, and that cannot be redeemed through discourse, serve to stymie the effort to achieve a free and unforced consensus, and are therefore contrary to the norms of a communicative practice that such persons are committed to by virtue of the fact that they are engaging in a practice of discourse in the first place. The fact that the norms of discourse, along with their substantive normative implications, are presupposed by those socialized in a natural language, and who sincerely take part in communicative actions, ensures that these procedural norms supply a public perspective: we all share a commitment to them, and in the same way. For Rawls, the public perspective is constructed out of the private; for Habermas, on the other hand, philosophy codifies the normative infrastructure that is already present in the free give-and-take of communicative activity. Obviously, all of this is rather impressionistic. The basic idea is that of a theory that is freestanding, not in the sense that it is based on substantive ideals that are allegedly widely shared in our society, but on a procedural conception of rationality, whose normativity is not dependent upon the substantive commitments that people in a certain society happen to share. But, as I alluded to at the beginning of this section, there is some question as to whether a theory of this sort, whatever its (de)merits, can successfully articulate a framework for the public use of reason, as Rawls’s freestanding theory attempts to do. For his part, Rawls clearly thinks that Habermas’s theory is not a freestanding one, but rather a comprehensive doctrine. This accusation needs to be understood carefully, however. Rawls occasionally gives the impression that he regards Habermas’s view as too philosophical, in the sense of being too abstruse and technical, to be a freestanding view. But it cannot be that Habermas’s theory is technical and complicated, whereas Rawls’s is not—the sheer amount of ink that has been spilled trying to make sense of Rawls should disabuse us of that thought. The problem, in Rawls’s eyes, is that Habermas’s theory of rationality does not “leave philosophy as it is,” and as a consequence is embroiled in disagreements with various reasonable comprehensive doctrines. We might be content to say that, given the trouble that Rawls’s theory runs into, we should approach with some trepidation the idea that leaving both philosophy and compre-

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hensive doctrines alone is a virtue for political theory. But we might also make a more forceful point against Rawls: the accusation that Habermas’s theory is a piece of metaphysics, which cannot play the role in public justification that Rawls demands of a political philosophy, suggests that Rawls is in a position simply to opt out of certain metatheoretical disputes. And we might wonder why we should allow this. After all, Rawls’s method, while avoiding some kinds of philosophical controversies, certainly cannot avoid others: not everyone agrees that political philosophy should be pursued in the way that Rawls thinks it should. Habermas is one of those people; it is not that Habermas’s comprehensive theory precludes him from articulating a substantive conception of justice that can serve as the focal point for a practice of public justification. Habermas’s theory does not aspire to play that kind of role, and indeed, as we saw when looking at the Rawls-Habermas debate and will see again in the next chapter, Habermas has arguments for why philosophy should not aspire to define a substantive, public conception of justice. Of course, we may find reason to reject these claims of Habermas’s and conclude that Rawls’s method of avoidance, along with the public goals he sets for his theory, is more appealing. The point is only that Rawls’s claim to leave philosophy as it is cannot simply serve as an automatic trump card against competing theories with different aspirations and philosophical commitments more wide ranging than his own. The proceduralist alternative to the freestanding paradigm can itself be considered freestanding in the sense that its validity is said to be independent of any substantive worldview, set of judgments, and the like. This is obviously in contrast to the Rawlsian rendering of the paradigm. Both take “freestanding” to entail neutrality with regard to competing views about the ethically true ends of life. It is true that for the Habermasian position, certain kinds of metaphysical and substantive views cannot be sustained when subjected to a process of free and unconstrained discursive examination—but that is simply a consequence of maintaining that rationality prescribes norms that people are both subject to and can run afoul of. Obviously, this kind of proceduralism understands the notion of freestandingness in a different way than does Rawls, but it is nevertheless in a similar spirit, and appears to be a promising way to avoid the unstable vacillation between the descriptivist critique and the moral interpretation. But this appearance is based on the rather large promissory note that Habermasian proceduralism holds up philosophically as a theory of rationality, law, and democracy. In the next chapter, we will begin to see whether this promissory note can be cashed.

chapter four

Procedure and Substance, Construction and Reconstruction

This chapter introduces some important features of Habermas’s overall philosophical method, with specific attention to how they apply to his political philosophy. It sets up the argument of the next two chapters, which offer an interpretation and defense of Habermas’s “rational reconstruction” of the normative, procedural infrastructure of the constitutional democratic state. I start in section 1 by detailing the contrast between Rawls’s substantive and Habermas’s procedural approach, connecting it to their respective methods: Rawls’s “nonmetaphysical” constructivism and Habermas’s “postmetaphysical” reconstructivism. Section 2 expands on the ways in which the basic structure of Habermas’s theory differs from Rawls’s, both in terms of Habermas’s distinction between law and morality, and the way that he views philosophy as connected to social theory. Sections 3 and 4 detail how Habermas helps himself to “the discourse principle” as the entry point into his articulation of the democratic legal order, and how this results in a mode of argument called rational reconstruction, which, unlike other approaches, cannot be directly prescriptive but is supposed to be both philosophically viable in a postmetaphysical climate and able to give normative accounts connected to social theory.

1. procedure and substance in pol itical philosophy: rawls and habermas As we have seen, Rawls has a good deal to say about what it would be for a conception of justice to be publicly justified and how we, as theorists, can identify and anticipate this state of affairs. Following his method of avoid-

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ance, however, he does not spell out the grounds on which these norms are to be justified from the participant’s perspective, leaving that task to the participants themselves. This move is crucial to Rawls’s attempt to divest himself of the excessive theoretical burdens of foundational political thought. It results in a conception of justification that deliberately lacks a constitutive account of the normative structure of reflective endorsement. By itself, this is not an objection, since Rawls argues that the method of avoidance leads to a significant payoff by making his conception of justice capable of serving as a framework for public justification in a way that comprehensive accounts of liberal justice cannot. But I have argued that Rawls’s political turn results in an unstable vacillation between two mutually incompatible and individually unacceptable versions of his theory: on the one hand, a theory that consists in quasi-descriptive claims about what conception(s) of justice persons of a certain description (that is, reasonable persons) can be expected to eventually find mutually acceptable. The opposite pole is a metaphysical solution to the descriptivist critique that seeks to ground the theory’s consensus-driven method upon an ultimate moral norm, but this move, I have argued, is incompatible with the ecumenical and freestanding spirit that animates Rawls’s project. I have linked this problem to some interconnected features of Rawls’s approach: his insistence that a political philosophy be nonmetaphysical leads him to draw on the substantive contents of reasonable worldviews without concern for how the “fixed points” of the modern moral worldview are embedded in the different comprehensive doctrines, which in turn leads to the problematic one-way dependence, discussed at the end of the previous chapter, of the public perspective that the political conception of justice is supposed to represent on the comprehensive worldviews of private persons. My suggestion at the end of the last chapter was that a political theory seeking to provide a normative framework for public justification could be nonmetaphysical, but avoid the one-way dependence of the public on the private by rejecting this substantive approach in favor of a procedural one, where the normativity of the theory would be loaded onto norms regulating the processes of discourse and legislation. We can profitably read Habermas as responding to the problems previously identified in Rawls’s theory through a reconstructive account of the rational basis of the democratic constitutional state. Rawls (R, 413 note 57) mentions that he does not attach any particular significance to the difference between construction and reconstruction, but the distinction actually proves quite important. A reconstruction attempts to capture the structure of a rational process that produces an outcome—such as an interpretation,



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a judgment, or a law—whereas Rawls’s constructivism begins with substantive outcomes (that is, the basic intuitions of the modern moral worldview) and lays out an artificial process for synthesizing and extending them. Only a reconstruction claims to inhabit the participant’s perspective. In some ways, this methodological distinction makes any direct comparison between Rawls and Habermas problematic. For one of its upshots is that Habermas’s political philosophy is not a theory of justice in Rawls’s sense. To be sure, Habermas does have a moral theory that reconstructs the impartial point of view characteristic of justice, and this moral theory is connected to what he takes to be social and political theory proper. But at least since his Tanner Lectures in 1986, and certainly in Between Facts and Norms (1992), Habermas has been at pains to distinguish his moral philosophy, which is narrowly focused on questions of justice as they relate to the impartial and universalistic justification of action norms, from his social and political philosophy, which he calls “a discourse theory of law and democracy.” A theory of political justice, in Rawls’s sense, is a theory that advances substantive principles; a theory of law and democracy, in Habermas’s sense, is not. Law and democracy are, instead, the normative structures and procedures that make possible the practice of rational, collective self-governance. In their 1995 exchange, neither Rawls nor Habermas appears to have considered this difference to be an obstacle to engaging productively with each other. But that impression is misleading, for Rawls assumes that his narrow focus on a conception of justice is a consequence of the fact that his theory is a freestanding one, and that the dispute about whether a political theory ought to focus on questions of justice or upon something else (for example, law and democracy, and the corresponding concepts of legality and legitimacy), is really a dispute between freestanding and comprehensive theories. He believes that a freestanding theory must be substantive: it culls substantive beliefs about political justice, which are validated within privately held ethical worldviews, and works them up into a conception that could be the object of an overlapping consensus.1 Rawls maintains that the only thing that can sustain a social order that is both legitimate and stable is the general approval by citizens of the substantive conception of justice that they take to effectively underlie their constitution and the basic structure of society. The generic normative source that he countenances is that of privately held ethical worldviews, which are emphatically normative for the individuals who hold them, and the force of which a political conception of justice can harness only by translating these private convictions into a publicly acceptable vocabulary of political justice. Put another way,

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the normativity of a public, political conception of justice for Rawls is ultimately parasitic upon these private ethical worldviews; a public conception of justice is simply not normative for those who cannot fit the conception into their comprehensive doctrine. This is the contractualist intuition that informs Rawls’s theory, which, by itself, is not something that Habermas would take issue with. But the strategy of constructing the political conception of justice out of substantive contents skimmed off of the surface of comprehensive doctrines is what generates the one-way dependence of the public on the private for Rawls, and hence the vacillation between the descriptive and moral-foundational readings of his theory. To avoid this problem, we may want to ask: can a political theory be freestanding, but procedural and not substantive, and have strong normative implications? If we take the specifically Rawlsian sense of “freestanding” as both independent of metaphysical normative sources and capable of fitting into all reasonable (but often metaphysical) worldviews as a “module,” then the answer is likely no. A procedural theory of the sort Habermas offers depends upon a general conception of normative validity that is likely to be substantively incompatible with any number of comprehensive doctrines that Rawls would regard as reasonable. But if we take “freestanding” in a more generic sense as being extensionally similar to “postmetaphysical,” then the answer is yes—or at least Habermas’s theory presents us with a plausible attempt to make that case. The difference between “postmetaphysical” and “nonmetaphysical” is obviously of significance here. For Rawls, as we have seen, “nonmetaphysical” just means a certain way of representing a conception of political justice by the philosopher, so that it will be compatible with any reasonable comprehensive doctrine; there is no thought that the conception actually is independent of metaphysical foundations—and for the individuals that reflectively endorse the conception, it likely will not be. For Habermas, by contrast, the designation of a theory as “postmetaphysical” means that it recognizes that modern reason—reason that puts itself on trial—can take no metaphysical authority as given, and that its normativity is located in the procedures of discourse, the raising and redeeming of validity claims. Thus, a postmetaphysical theory makes the stronger claim that its normative authority can be justified without appealing to any metaphysical-ethical substance. This basic difference between Rawls and Habermas as to what the proper object of political theory ought to be (a theory of political justice for Rawls and a theory of law and democracy for Habermas) is to a large extent an outgrowth of the metaphilosophical dispute just outlined. But



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a basic similarity, which makes a fruitful conversation between them possible, underlies this difference: both are essentially committed to offering a normative framework for the public use of reason in a constitutional democracy. Their different assessments of what philosophy can and cannot do leads them to conceptualize this framework in different ways: for Rawls, the framework consists in concrete, substantive principles of justice that citizens in an overlapping consensus may take for granted that they all agree on (though they agree on them for different reasons), and that regulate the basic structure of society and the public use of reason. A Habermasian framework, on the other hand, is delineated by what he dubs a reconstruction of democratic legal orders: an analysis of the presuppositions of a process of legitimate democratic lawmaking that he eventually calls “the system of rights.” Such a framework does not consist in any substantive principles that citizens can take for granted, nor is it founded on moral norms that we agree should constrain the political process from the outset. Indeed, the only thing given in Habermas’s reconstruction is the commitment to the communicative regulation of social life through modern law—and law is introduced at this basic level not because it is morally desirable, but only because it is, Habermas argues, functionally necessary. The reconstruction, then, consists in the application of a generic kind of normative rationality (expressed by Habermas’s “discourse principle”) to the legal form. The reconstruction answers the question of how institutionalizing open discourse and communication through the medium of law is possible. This means that, for Habermas, the framework for the public use of reason consists in the presuppositions of legitimate democratic procedures, which has a basis that is normative, rational, and functionally defined, but not specifically moral (or ethical for that matter, to make use of Habermas’s distinction). Chapters 5 and 6 are occupied, in large part, with considering whether this is an appropriate way to delineate and justify such a framework—Habermas’s most serious critics think that it is not and take issue with his proceduralism and functionalism. But first, it will be helpful to see why Habermas’s way of proceeding might be appealing.

2. l aw and morality, philosophy and social theory Let us begin by getting a better sense of how the shape and style of Habermas’s argument differ from Rawls’s, and in the next sections, what the

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metatheoretical rationale for these differences is. As I touched on in the introduction, Habermas might be thought of as a more traditional political philosopher than Rawls, insofar as the aspirations of his theory remain more or less universalistic. Yet, there is another, subtler sense in which Habermas is closer to the liberal and social contractarian problematic of modern political philosophy than Rawls: Habermas is careful to distinguish questions of political legitimacy and legal validity from moral questions about justice. While it would be a serious distortion to say of Rawls’s political philosophy that it represents an unmediated application of moral philosophy to politics (after all, I tried to show in the last chapter that efforts to push Rawls in this direction run afoul of his freestanding methodology, and Rawls himself never expands justice as fairness into a general moral outlook),2 the fact is that, for him, political questions do fall within the ambit of a theory of substantive justice.3 For Habermas, by contrast, the problem of combining the rule of law with democratic self-rule in complex societies takes center stage. It is true that some of Habermas’s earlier work on discourse ethics did make it seem that he was following Kant by using moral philosophy to articulate a political ethic, whereby democratic procedures were to be understood as the institutionalization of moral argumentation.4 And indeed, Habermas has been accused, even by sympathetic critics, of excessively moralizing politics by emphasizing the importance of consensus to the point where he allegedly cannot account for legitimate moral and ethical disagreements among citizens.5 Habermas has modified his theory in response to some of these critiques.6 He writes: “An unmediated application of discourse ethics (or of an unclarified concept of discourse) to the democratic process leads to muddled analyses; these then offer skeptics pretexts for discrediting the project of a discourse theory of law and politics at its inception” (BFN, 158). Instead, moral discourses are one kind of discourse among others (ethical and pragmatic), which, along with bargaining and compromise procedures, go into the common opinion- and will-formation of democratic lawmaking.7 Moreover, a major concern of Between Facts and Norms is to distinguish moral norms from legal norms without subordinating the latter to the former, as is standard practice in natural law approaches up through Dworkin. The similarity here between Habermas’s position and that of modern legal positivism—in particular the work of Hans Kelsen and H. L. A. Hart—is notable, complete with their collective insistence that a failure to distinguish clearly between moral questions and questions of legal validity leads to “confusion” or “muddled analyses.”8 And as with the legal positivists, the point of this move is not to insulate law



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from moral criticism, but to insist on the value, for the purposes of theoretical clarity, of distinguishing between different kinds of validity. Despite these senses in which Habermas’s political thought may appear to be more continuous with the history of modern political thought than Rawls’s, we can see another way in which Habermas is at odds with mainstream moral and political philosophy as it has developed in the Anglo-American world. Coming from a tradition that consciously refuses, for principled reasons connected to the ambition to build a critical theory of society, to distinguish sharply between philosophy and empirical inquiry,9 Habermas often starts his inquiries from social theoretical premises—that is, from a particular conception of how modern societies are structured and how problems of social coordination arise in them.10 His social theory is most fully articulated in Theory of Communicative Action, in which one of the central sociological theses is that modern societies are integrated through both formal, institutionalized systems of social action, in which agents’ actions are coordinated through “media” like power and money, and a lifeworld, in which agents coordinate their actions through communicative actions—that is, on the basis of mutually recognized validity claims.11 While system and lifeworld are intertwined in all manner of ways, to say that modern societies are “rationalized”12 entails for Habermas that they have become more clearly differentiated than they were in premodern societies: on the one hand, systems have become more autonomous and increasingly operate according to their own logics; on the other, the different varieties of validity claims within the lifeworld, along with their corresponding cultural institutions, are more clearly parsed. Art becomes distinct from ethics, which becomes distinct from science, and so on. If one’s rhetorical aim is to make Habermas’s thought accessible to Anglo-American audiences (for whom social theory and political philosophy have less to do with each other than they do in Germany), it may be imprudent to emphasize this dimension of his work. On the other hand, it is important to appreciate this social theoretic backdrop, as it reveals some notable continuities and discontinuities between his approach and those of Anglophone moral and political philosophers. In moral philosophy, for example, Habermas’s position often looks like yet another attempt to salvage Kant’s categorical imperative without Kant’s transcendental idealism in a manner similar to, say, Scanlon’s influential work.13 There is some truth to this: if Kantian concepts of morality prove ultimately untenable, then Habermas’s theory will sink along with the rest. Yet, this part of Habermas’s normative theory builds on his social theory, so that it is to some

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degree dependent upon empirical premises: we start with individuals who have been socialized within a lifeworld context that they share, and through which they unreflectively coordinate their actions via a large, holistic mass of shared cultural and societal norms, and a shared language.14 As agents move through the lifeworld, conflicts occur, and they must shift to the reflective mode of discourse in order to settle consensually on a norm for solving the conflict. Moral argumentation, Habermas claims, is a specific way of dealing with a certain kind of coordination problem: it is specialized for dealing with conflicts that concern “generalizable interests” and the basic terms of social coordination themselves. And it is a specifically modern form of social coordination that comes onto the scene around the same time as positive law, in response to the disintegration of traditional ethical life—it is impartial and does not appeal to a shared conception of the good life. Thus, Habermas’s theory is not subject to the communitarian charge that deontological ethics uses falsely atomistic conceptions of the person, as it clearly begins with nonatomistic premises, whereas many other Kantians and neo-Kantians are at least prima facie open to this objection. 15 More important, if Habermas can convince us that such a form of specifically moral argumentation is conceptually distinct from other sorts of practical discourse, that such a practice is in fact demanded of modern persons on occasion, and that such a differentiation represents a rational learning process that can be reconstructed and recognized as rational by those that undergo it, then we have gone a long way toward confirming the theory. In short, the burdens of proof are different for Habermas’s argument. The same point can be made with regard to Habermas’s political philosophy. An important part of the argumentative burden in Between Facts and Norms is fulfilled by arguments about the indispensability of positive law (or, more specifically, what Habermas calls “the legal form”) for the social integration of modern societies and the functional necessity for legitimacy in any society, which in modern societies, Habermas argues, can be fulfilled only through an open democratic process. For him, normative arguments build on, and sometimes blend with, functional social-theoretical arguments. To be sure, Habermas does not intend functional arguments of this sort to replace normative arguments: as he sees it, the features of modern societies that he refers to (the decline of the authority of substantive conceptions of reason and traditional ethical life, the differentiation of system and lifeworld, the development of modern positive law and conscientious morality) are essentially contingent, but once in place, normative consequences follow for beings like us—that is, for vulnerable socialized beings



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who need to be able to reproduce the reservoirs of mutual understanding that sustain their social existence. To someone with Rawlsian sympathies, Habermas’s functional arguments might seem more or less correct: legitimacy through democracy and the rule of law are indeed fixed points in our moral-political thought, they might agree. But they would add that such fixed points should be thought of as substantive moral premises that we can take for granted in the context of our political culture and from which further substantive arguments about the appropriate conception of political justice ought to be launched. Other critics, especially those within the critical theory tradition, have thought that Habermas’s functionalism represents his surrender to brute social facts, and as such blunts the critical potential of theory.16 Within the German context, Habermas’s Frankfurt colleague Karl-Otto Apel argues that layering normative arguments on top of empirical or functional ones unacceptably weakens the critical and justificatory role of philosophical reason, whereas another colleague, Axel Honneth, contends that the necessities for the integrity of the process of socialization, upon which the development of a stable identity depends, show that we must go beyond Habermas by saying more about what moral injury and the good life for socialized beings like ourselves consist in.17 Some of the dissatisfactions that have been expressed during the reception of Between Facts and Norms in the Englishspeaking world have been along similar lines.18 In order to evaluate these criticisms, we need to have some appreciation for Habermas’s reasons for relying on empirical and functional premises, and avoiding moral foundationalism in political and legal theory. Habermas’s reasons for not articulating substantive principles of justice, and for leaning on functional or empirical arguments to justify the legal form, are related. Habermas considers it essential for a philosophy with emancipatory aspirations to refrain from claiming any privileged authority to dictate to citizens what is concretely just and good for them, leaving that to democratic deliberations between actual citizens.19 He writes: “[It] is left to the democratic process continually to define and redefine the precarious boundaries between the public and the private so as to secure equal freedom for all citizens in the form of both public and private autonomy” (IO, 101). In this narrow sense, Habermas’s project is less ambitious than Rawls’s. But this division of labor between philosophy and real discourse is not just a matter of deference for Habermas (although it is that, too). Modern reason, he argues, can no longer be seen as attaching to any substantive norms or privileged form of life, and philosophical attempts to anchor

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reason in either the structure of the cosmos or the subject have, over the last several centuries, collapsed.20 The upshot of this, for Habermas, is not skepticism, but a realization that reason is no longer directly prescriptive; answers to questions about the good life and the just society cannot be “discovered” by theory, and must be fallibly worked out in historical time by actual persons and actual societies. Procedural rationality shapes this process, but philosophy cannot settle these questions through monological reflection alone. In short, Habermas sees his modesty in political philosophy as both a matter of deference and a philosophical necessity: validity, according to Habermas, can be determined only through actual discourses, as philosophy is no longer in a position to claim access to knowledge of substantive moral norms, or blueprints for the good society or the good life.21

3. the discourse principle But if it is true that Habermas does not think it feasible to confront political reality directly with substantive moral norms, and therefore cannot appeal directly to moral norms for use in criticizing legal and political relations, it is equally true that in order for his, or any, normative political philosophy to be viable, there must be some defensible entry point into normative theory. Anyone with a passing familiarity with Habermas knows that he has carved out his niche in contemporary philosophy by (a) emphasizing the centrality of communication in human life, pointing to the possibility of mutual understanding between persons as the source of normative expectations, and (b) maintaining that it is possible for the theorist to formalize the rules and structures employed in the linguistic practice of human understanding.22 The philosopher obtains a justified normative perspective by reconstructing the structure of pretheoretical normative expectations latent in all linguistically constituted forms of life. Habermas appeals to the possibility of discursively achieved mutual understanding, the free and nonviolent coordination of action. Communicative reason “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus-bringing force of argumentative speech, in which different participants overcome their merely subjective views” (TCA 1, 10). We intuitively know what it is to come to mutual understanding with others about this or that, to realize something that was previously obscure to us through dialogue, to be convinced by an argument, and to act with others



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in order to pursue aims that we have come to agree upon. We know what it is to use language to come to an understanding about something in the world, and to use this communicatively achieved understanding to coordinate our actions. Moreover, these more or less universal experiences are quite at odds with those of coercing or being coerced by others, of coordinating actions through threats, manipulation, or appeals to sanctioning authorities, or of just blindly following instincts or habits. The experience of mutual understanding carries with it a sense of freedom that is absent in the noncommunicative experience. What Habermas refers to as “discourse” is the reflexive practice of intersubjectively engaging in the testing, critique, or defense of validity claims that have been called into question. I shall speak of “discourse” only when the meaning of the problematic validity claim conceptually forces participants to suppose that a rationally motivated agreement could in principle be achieved, whereby the phrase “in principle” expresses the idealizing proviso: if only argumentation could be conducted openly enough and continued long enough. (TCA 1, 42)

He contends that a general normative demand for rational acceptability, expressed by the discourse principle, is presupposed in discourse. Habermas formulates the discourse principle (D) as follows: “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.” He immediately then writes: “[D] expresses normative validity in a nonspecific sense that is still indifferent to the distinction between morality and legitimacy” (BFN, 107). The discourse principle intends to capture the general standard for the rational acceptability of norms. It has “normative content,” insofar as it imposes a requirement of reasonableness and impartiality upon participants in discourse, but it is neutral among different kinds of normative validity (for example, legal and moral validity). While introducing the discourse principle in Between Facts and Norms, Habermas writes: “To introduce such a discourse principle already presupposes that practical questions can be judged impartially and decided rationally” (BFN, 109). While not a trivial presupposition, this is just to assume—as participants who enter into discourse in good faith must—that practical questions admit of rational answers. It is not yet to differentiate specific forms of discourse, or generate the rules of argumentation appropriate to them. We have so far said nothing about the specific forms of discourse that we need in order to reach mutual understanding with one another about norms extending over the full spectrum of action types. Independently of any such theory, the discourse principle is justified more or

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less because we do indeed accept it as an overarching requirement for justification. Indeed, Habermas might add, we accept it because we have no alternative, because we cannot help but accept it as linguistically socialized beings that intuitively know what it is to redeem a validity claim. There are, of course, alternatives to discourse (namely, coercion or disengagement) and the discourse principle is not categorically justified in the sense that it obligates rational agents to enter into discourse on any given occasion. But, as Habermas’s argument goes, we who are socialized in linguistic forms of life are inducted into it, and it is not renounceable for rational agents—that is, for agents who (however tacitly) raise, accept, and reject validity claims. In contexts wherein norms receive their binding authority from the free assent of those to whom they are presented, rather than being “normatively ascribed” by some authoritative source or tradition that is not subject to criticism, D is what justification amounts to—and for us moderns, there is no authoritative source that is not in principle subject to rational scrutiny. Habermas writes: “The discourse principle is only intended to explain the point of view from which norms of action can be impartially justified” (BFN, 108–9), and, in modernity at least, there is no other sort of justification other than impartial justification; to say that a justification is biased is to say that it is no justification at all. The discourse principle is the distilled normative core of practical reasoning in a modern context. As with most of the evolutionary steps into modernity, there is no going back; once traditional sources of normative authority have been discredited (or at least shown to be question-able), justification must aim toward impartiality, and those engaged in justification must recognize their interlocutors as accountable agents, as their reasoned assent is the only thing by which that justification can be supported.23 We should, however, make it clear that in spite of what I have just said, the idea that validity depends on the discursive redemption of validity claims in a way that is impartial such that no one should be in a position to reject the reasons I offer, if my claim is to be deemed valid, is not a specifically modern one. Those who have mastered the use of a natural language intuitively know what it is to raise and redeem a validity claim, even if some forms of life staunchly resist reflexivity about their own norms. But the context of modernity does add something important—namely, discrediting notions that the consent of some may be either assumed or ignored because of contingent features of persons (such as gender, race, heredity, and so forth), or that some such persons are not entitled to take part in discourse, that their voices do not count (though, of course, such notions



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do persist). So too with the notion that some authorities are, by their very nature, insulated from discourse, such that it does not even make sense to question them.24 Although all of us sometimes treat certain norms or authorities (parents, elders, teachers, religious authorities, scientists, and the like) as unquestionable, we recognize, on reflection, that not everyone accepts their authority without reservation, and that we should be able to adduce reasons, if called on to do so, as to why we treat their authority as definitive. The other important contribution of modernity to discourse theory is the modern constellation of practical discourse, with its increasingly clear separation between questions of fact, value, and rightness.25 The discourse principle does not directly govern the use of practical reason, insofar as it is not a rule of argumentation, but instead supplies only a general requirement that different kinds of practical reason must conform to. However, in Between Facts and Norms, two rules of argumentation that do regulate moral and legal discourses are especially relevant: the moral principle of universalization and the democratic principle. The principle of universalization states: “All affected can accept the consequences and the side effects [a norm’s] general observance can be anticipated to have for the satisfaction of everyone’s interests (and these consequences are preferred to those of known alternative possibilities for regulation)” (MCCA, 65). The democratic principle, on the other hand, applies to the practice of lawmaking, a practice that incorporates all varieties of practical discourse and as such does not represent a rule of argumentation so much as a standard of legitimacy that all of the discourses involved in the lawmaking process must conform to: “[O]nly those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted” (BFN, 110). What is the relationship of the discourse principle to these other principles? In order initially to figure out how to formulate the discourse principle, we might find it helpful to survey the different kinds of discourse that are familiar to us and notice how they share the formal feature that validity depends on, impartial reason-giving, but the discourse principle is not justified through this sort of reflective equilibrium. The constellation of practical discourses is, after all, historically variable, whereas the discourse principle is formulated at such a level of abstraction that it applies to practical reason as such: “[T]he concept of practical reason must be understood so abstractly that it can assume a specifically different meaning depending on which kind of norm is at issue” (BFN, 105). Rather than seeing the discourse principle as the metanorm that we posit in order to account for the

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apparent unity of practical discourses, it is better to say that universalization principle and the democratic principle simply are the discourse principle, when it is applied to different modes of action coordination.26 The moral principle first results when one specifies the general discourse principle for those norms that can be justified if and only if equal consideration is given to the interests of all those who are possibly involved. The democratic principle results from a corresponding specification for those action norms that appear in the legal form. Such norms can be justified by calling on pragmatic, ethical-political, and moral reasons—here justification is not restricted to moral reasons alone. (BFN, 108)

Since the discourse principle is not a rule of argumentation, it—again, by itself, without being applied to any particular domain of discourse—provides no specific normative guidance for action. Now, it is curious that Habermas introduces the discourse principle with little fanfare or buildup in Between Facts and Norms, as it represents the most significant innovation contained in that work for his discoursetheoretic approach as a whole. In Habermas’s earlier work on discourse ethics, he formulates the discourse principle somewhat differently: “Only those norms can claim to be valid that meet (or could meet) with the approval of all affected in their capacity as participants in a practical discourse” (MCCA, 66). Here, D “stipulates the basic idea of a moral theory but does not form part of a logic of argumentation” (MCCA, 93). This older version of the discourse principle assumes not only that the justification of norms through practical discourses is possible but also that the principle of universalization (U) serves as the rule of argumentation that tells us how to carry out the moral justification of a norm. The difference between the two versions of the discourse principle may seem trivial, but note that while the older version is supposed to be understood as a general principle that plays no role in shaping the actual practice of moral argumentation (in the sense that participants would not refer to D in order to justify an action norm), it nevertheless, Habermas suggests, contains within it the idea of a moral theory. The new version of the discourse principle refers to action norms as such, and Habermas defines rational discourse about action norms as any effort whatsoever to communicatively achieve mutual understanding about a validity claim brought into question (BFN, 107–8). Therefore, the newer discourse principle has as much to do with arguments about expedient or efficient courses of action, or authentic self-presentations and collective self-understandings, as it does questions about the rightness of norms. This, arguably, has always been Habermas’s idea, but in the formulation



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from Between Facts and Norms, he makes clear that the discourse principle is formulated without presupposing the idea of a moral theory. The new discourse principle, then, is more abstract and less closely linked to the idea of moral discourse. Once the discourse principle is formulated in an abstract manner, we can turn to examine those forms of discourse that we happen to have (pragmatic, ethical, moral, legal), and determine what the discourse means for them individually. These moves have not been universally well received. In particular, Habermas’s longtime Frankfurt colleague and occasional collaborator, KarlOtto Apel, whose own version of discourse ethics has consistently been more emphatically categorical and transcendentally grounded than Habermas’s, argues that Habermas’s more recent formulations of the discourse principle dilute the program of discourse ethics even more.27 Because the discourse principle is neutral among different types of discourse, it is indifferent to the question of whether social conflicts should be dealt with using moral discourses of basic rights and justice, as opposed to some different (legal, pragmatic, ethical, or other) type of consideration. Apel, by contrast, insists on a strong presumption in favor of regulating social life through moral discourse, wherever possible.28 Habermas does argue that all matters that can be settled consensually should be so settled, rather than through bargaining or compromise: “[B]argaining first becomes permissible and necessary when only particular—and not generalizable—interests are involved, something that again can be tested only in moral discourses” (BFN, 167). But since ethical-political and legal discourses can also be used to settle matters consensually, compromise is not opposed to moral discourse alone. This is not something that we ought to fault Habermas’s theory for, however. In a way, this complication stems from a more general difficulty found in the Habermasian discourse theory: if one accepts his distinctions between moral, ethical, and pragmatic discourses and accepts the claim that whereas moral norms are specialized for a specific sort of action coordination, legal norms operate over the domains of all three kinds of practical discourses (in addition to bargains and compromises), incorporating all of these into the legislative process, a further set of difficulties arise. For many, perhaps most, practical problems, it is not at all obvious what form of practical discourse is appropriate for settling it; complex problems almost always raise a number of interlocking practical considerations (RS, 399). Often, a considerable part of public debate consists in arguing about what kind of problem an issue raises. For example, is same-sex marriage an ethical question about what kind of society we want to live in or a moral

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issue of justice and basic rights? It may even be in principle possible to address most any practical issue from all three standpoints of practical reason. (We can at least imagine someone who thinks that the major issue raised by gay marriage is a pragmatic one about how best to harmonize different state municipal codes.)29 This is not a new issue for Habermas. Many of his long-standing concerns about the technocratization of politics and the depoliticization of citizens stems from what he sees as Western modernity’s unfortunate tendency to treat social coordination problems that could be solved consensually as technical problems to be solved through the application of bureaucratic power; this is an aspect of the lifeworld “colonization” thesis from the Theory of Communicative Action.30 And his theory does contain a lexical ordering among strategies of coordination: once the participants in a discourse agree that a problem implicates basic rights or justice, it is no longer acceptable for them to solve the problem with a discourse about what is expedient or efficient (pragmatic discourse), or good for their group (ethical discourse). But this falls short of constituting an imperative to solve as many problems as possible through universalistic discourse, and it does not tell us anything about which problems are actually moral problems that implicate basic rights. A moment ago I referred to this underdetermination as a “difficulty” for the discourse theory, rather than a “problem,” because it reflects a pervasive feature of actual discourse that a theory of discourse should capture. Conflicts, problems, and social coordination failures simply do not present themselves plainly labeled as moral, ethical, legal, or technical problems, and here discourse theory is forced to rely on the fallible hermeneutic sensibilities of participants.31 Still, according to Apel, Habermas’s redefinition of the discourse principle exacerbates these difficulties for the sake of drawing a clear distinction between law and morality. In Theory of Communicative Action, Habermas treats modern law with more ambivalence than he does in Between Facts and Norms. In the former work, law is understood as one of the primary means by which systems colonize the lifeworld, by subjecting spheres like family and education to regulation by bureaucracies that are primarily governed by the medium of power.32 While some critics detect some disquieting antiregulatory implications here,33 it seems more likely that what Habermas sees is a genuine dilemma: of course there are often entirely sound and pressing reasons to subject domains of the lifeworld to bureaucratic regulation (for example, using social workers to monitor and prevent spousal and child abuse), but this kind of regulation is sometimes bought at the price of desiccating the lifeworld, where consensual regulation may still be an in-



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principle possibility.34 Although Habermas does recognize this unappealing consequence of juridification in Between Facts and Norms, reformulating it in terms of the threat that an insufficiently democratized welfare state poses to the autonomy of its “clients,” what seems lacking, according to critics, is a clear presumption in favor of consensual, communicative regulation through moral discourses, as opposed to legal regulation, wherein ethical and pragmatic reasons mingle with moral ones in a coercive framework. What critiques of this sort boil down to is the complaint that Habermas’s discourse theory is insufficiently prescriptive—that is, it does not tell participants enough about how they ought to solve their social coordination problems. It simply tells them what the options are and what their normative structures are, but not how to determine the mode of regulation most appropriate to a given problem, or, at the macrosocial level, what the appropriate division of labor between the different kinds of consensual and coercive regulations would be in the good and just society. In this sense, Habermas’s discourse theory looks like an “empty formalism” compared with Rawls’s.

4. rational reconstruction and philosophy While favorably contrasting the modesty of his own theory with Rawls’s, Habermas argues that by merely reconstructing the forms of legal communication that make self-government possible, he leaves questions about substantive social norms up to actual citizens. He thereby hopes to overcome a democratic deficit that he identifies in Rawls’s theory, in which the philosopher settles substantive questions on citizens’ behalf. The artificial persons behind the veil of ignorance end up embodying political self-determination on behalf of the actual citizens they are supposed to represent, depriving those citizens of their ability to determine and actualize a just society for themselves; their only task is to institutionalize the principles that are handed to them by their philosophically constructed doppelgangers: The form of political autonomy granted virtual existence in the original position, and thus on the first level of theory formation, does not fully unfold in the heart of the justly constituted society. For the higher the veil of ignorance is raised and the more Rawls’ citizens themselves take on real flesh and blood, the more deeply they find themselves subject to principles and norms that have been anticipated in the theory and have already been institutionalized beyond their control. (IO, 69)

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By the time Rawls’s citizens fully become actual persons, the basic shape of the just society has already been determined—all that remains is the yeoman’s work of filling in this vision. Although in the aftermath of the Rawls-Habermas debate, this point has been taken as Habermas’s main critique of Rawls,35 it is not a particularly strong criticism, and Rawls effectively rebuts it in his “Reply to Habermas.” He argues that Habermas has misunderstood the role of the original position, and philosophy itself, in his four-stage sequence of application (original position → constitutional convention → legislation → adjudication). In fact, Rawls takes himself to be badly misunderstood to the extent that Habermas reads him as a kind of secular natural law theorist: “I believe that Habermas thinks that in my view the liberties of the moderns are a kind of natural law, and therefore . . . they are external substantive ideas and so impose restrictions on the will of the people” (R, 406). On this model, the original position would be a device used to reveal the rights that people have, and these would then be presented to those in the later stages of application. But Rawls clarifies his position as follows: [T]he four-stage sequence describes neither an actual political process, nor a purely theoretical one. Rather, it is part of justice as fairness and constitutes part of a framework of thought that citizens in civil society who accept justice as fairness are to use in applying its concepts and principles. It sketches what kinds of norms and information are to guide our political judgments of justice, depending on their subject and context. (R, 397)

The original position is a philosophical device in the trivial sense that it was designed by a philosopher and is part of a political theory. But it attains whatever status it has only by successfully modeling the values and commitments that we, as reasonable citizens here and now, believe ought to shape our conception of justice. The philosopher does not determine this and only plays the role of showing how these commitments can be used to shape a just society in conformity with the values, ideals, and commitments of those reasonable people within it. On Rawls’s reading of his own theory, the political philosopher is not the architect of the just society (or a latterday philosopher-king): [W]hen citizens in political offices or civil society use this framework, the institutions they find themselves under are not the work of a political philosopher who has institutionalized them in a theory beyond citizens’ control. Rather, those institutions are the work of past generations who pass them on to us as we grow up under them. We assess them when we come of age and act accordingly. (R, 399)



Procedure and Substance, Construction and Reconstruction

At most, then, the political philosopher is a guide for citizens who take seriously the task of actualizing a just society in terms that could impartially be said to be in the best interests of everyone. Just as Habermas suggests it should be, this is an ongoing project (R, 401). But there is another aspect of Habermas’s philosophical modesty that we can highlight in order to bolster his case against Rawls: Habermas’s view is that philosophy, tied to postmetaphysical modern reason that has divested itself of religious and metaphysical certainties, is not favorably positioned to realize this more concretely prescriptive project, and using philosophy to derive abstract moral norms that are then used directly to criticize political institutions is not a sound procedure. In his engagement with poststructuralism, Habermas has argued that although reason may no longer credibly be linked to metaphysical accounts of either the human subject or a rationally ordered cosmos, this does not mean that reason’s critical power and universal scope dissolve into a multiplicity of local practices.36 Rather, universal reason exists between subjects, in their ability to raise and redeem validity claims with one another. The possibility of mutual understanding, which is now guaranteed only procedurally and is realized only transitorily, forms the background for the existing diversity of those who encounter one another—even when they fail to understand one another. (PT, 117)

On the other hand, Habermas typically agrees with the radical critics of reason that the discrediting of metaphysical accounts of reason implies that whatever remains of reason is not directly prescriptive. An account of reason like Habermas’s, which locates it in communicative practice, will be essentially procedural, giving an account of the procedural norms that must be adhered to for subjects to communicate rationally with one another. But, having divested itself of any innate certainties, reason, by itself, does not reveal to us substantive principles with concrete implications for action. He accuses “modern natural law” theories that still claim to have access to substantive, morally justified moral norms of “naïve normativism,” and complains that “[in] the classical modern tradition of thought, the link between practical reason and social practice was too direct” (BFN, 3). In Habermas’s view, once one accepts that reason no longer resides in the cosmos or the subject, but rather among subjects in their linguistically mediated practices of achieving mutual understanding, one is compelled to reflect on the social conditions within which reason operates, and how, whether, and to what extent it is effective in shaping social reality in accordance with achievements of mutual understanding. It does not do to

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confront recalcitrant social reality in an undialectical manner by measuring the deficient present against rationally prescribed standards after one has completed one’s reflections in “ideal theory”; that is to assume the perspective of an isolated subject a-socially and a-historically intuiting moral principles and then, standing apart from society, measuring society against them. In Between Facts and Norms, Habermas criticizes Rawls and Dworkin for directly confronting empirical reality with moral standards (or, for Rawls, principles of political justice). By not establishing an internal relation to the legal structure of the constitutional state, Habermas argues that such theories, for all of their merits, leave it unclear how their normative standards apply to society (“[T]he relation between positive law and political justice stands in need of further clarification” [BFN, 64]), opening the door to the charge of naïveté, or indifference on the part of legal theorists and social scientists who see no place for the idea that rational standards for criticism are embedded in social reality.37 Only when sociological analyses of law combine external access with an internal reconstruction does it cease to be necessary for normative theory to seek contact with social reality in an unmediated way, through the political consciousness of a public of citizens. (BFN, 65)

For Habermas, a “reconstruction” of the way rationality establishes a foothold in social reality must be dialectically connected to normative reflection on politics from the beginning. And reflections of this sort may prove sobering. For communicative reason shapes social reality only by procedurally regulating discourses that are fallible and indeterminate, and cannot generate concrete prescriptions for action and institutional design out of itself, but only through actual discourses: [Practical reason] no longer provides a direct blueprint for a normative theory of law and morality. Rather, it offers a guide for reconstructing the network of discourses that, aimed at forming opinions and preparing decisions, provides the matrix from which democratic authority emerges. (BFN, 5)

In order to clarify Habermas’s metaphilosophical position, we can look to his essay “Philosophy as Stand-in and Interpreter.” There, Habermas, along with most contemporary philosophers, rejects the strong apriorism of Kantian philosophy and regards philosophy as no longer equipped to be the final court of appeals for all knowledge claims produced by the sciences (judge), nor the task of assigning empirical disciplines their proper roles in human knowledge’s ultimate division of labor—that is, telling the sciences what their respective jobs are, and what they ought to be investigating



Procedure and Substance, Construction and Reconstruction

(usher). In lieu of these grandiose motifs, Habermas proposes that philosophy function as a stand-in for broad and ambitious empirical theories by reconstructing the universal competencies of speakers and actors, and as an interpreter that connects different theoretical disciplines both to one another and to everyday communicative practices. As a stand-in, philosophy reconstructs the matrices of action oriented toward norms: Starting primarily from the intuitive knowledge of competent subjects—competent in terms of judgment, action, and language—and secondarily from systematic knowledge handed down by culture, the reconstructive sciences explain the presumably universal bases of rational experience and judgment, as well as of action and linguistic communication. (MCCA, 15–16)

Reconstructive arguments take the intuitive knowledge that subjects must possess in order to, say, raise and justify a validity claim, and render that knowledge explicit, turning “know-how” into “know-that.”38 This reconstructive role is supplemented by a hermeneutic one, which connects the reconstructions with the actual self-understandings of participants, while mediating between the specialized languages of different empirical disciplines. This is the role of the philosophical interpreter: As far as philosophy is concerned, it might do well to refurbish its links with the totality by taking on the role of interpreter on behalf of the lifeworld. It might then be able to help set in motion the interplay between the cognitive-instrumental, moral-practical, and aesthetic-expressive dimensions that has come to a standstill today like a tangled mobile. (MCCA, 18–19)

Habermas intends for his reconstructive style of argument, which was primarily developed by other theorists for synchronic analyses (that is, the reconstruction of competencies shared by all humans at the same level of genetic development) to be useful diachronically (that is, in inquiries into the development of worldviews, normative structures, and so forth), in which actors employ systems of rules creatively to generate self-understandings rather than merely being governed by rules. As a result, as Benhabib puts it, “[T]he line separating ‘reconstructive’ from ‘hermeneutic-narrative’ accounts may be thinner than it first appeared.”39 Rather than necessarily being a criticism, we can read this as simply a result of the need to cogently combine the role of reconstructive stand-in with that of the hermeneutic interpreter. It is important to emphasize that while Habermas sometimes seems to equate philosophy with rational reconstruction (for example, BFN, xxxix), he in fact sees the hermeneutic, interpretive dimension as both an analytically distinct and essential component of the philosophical

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enterprise. It is only on account of its role as interpreter that philosophy can claim to speak on behalf of participants in a nonauthoritarian manner. But Habermas consistently decries as insufficiently rational and critical those approaches, from Gadamer to Rorty to Rawls, that tend to see the hermeneutic task as all that is left to philosophy in its postmetaphysical guise.40 That Habermas assigns this dual task to philosophy will be important in the following chapters, for a reconstruction of democratic legal orders needs to incorporate both dimensions. The basic structure of the argument is as follows: with the discourse principle as his entry point into the argument, Habermas analyzes the conditions that are necessary for institutionalizing D through the medium of law. This analysis then must be connected to citizens self-understandings of democracy, rights, and constitutionalism, and checked against the possibility of institutionalizing democracy and the rule of law, given certain intransigent empirical realities (for example, the fact of pluralism and the autonomy of systems) impacting this institutionalization and its reproduction. Starting in Chapter 6, I will begin critically examining whether the roles of the reconstructive and the interpretive theorist do, in fact, complement each other in Habermas’s analysis. But first, let us examine Habermas’s central argument for the normative infrastructure of the democratic state and how he justifies the premises of this argument.

chapter five

Discourse Theory and the Constitutional Democratic State

We have been examining Habermas’s conception of philosophy. Like many throughout the history of philosophy, Habermas intimately links philosophy to the concept of reason. Today, he argues that it is no longer plausible to think of reason as being metaphysically anchored in the subject or the cosmos; instead, it resides in linguistic processes oriented toward mutual understanding between persons. For philosophy to recoup any of its systematic ambitions, it must divide its labor between a reconstructive and an interpretive role. For Rawls, there is no corresponding explicit division of philosophical labor. Nevertheless, there is at least a surface similarity between the way Rawls views the relationship between the constructivist procedure and reflective equilibrium, and the way Habermas understands the relationship between rational reconstruction and the role of hermeneutic interpreter. For both, the articulation and justification of framework for the public use of reason involves two parts: the constructive or reconstructive procedure outlines a framework (that is, Rawls’s political conception of justice, Habermas’s system of rights), that then must prove consonant with the self-understandings of the citizens who are supposed to make use of it. For Rawls, the second stage (reflective equilibrium) has justificatory priority over the first. For Habermas, however, the relationship is not so clear, and neither concept has obvious justificatory priority over the other. This chapter is primarily about the reconstructive stage of Habermas’s political theory. It focuses on a difficult argument that Habermas makes in chapter 3 of Between Facts and Norms—the theoretical core of that work—in which he outlines a normative conception of rights and democracy by applying the discourse principle to legal form (1). I deal with some prelimi-

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nary objections to this argument (2) before turning, in the next chapter, to what I take to be a more serious set of problems for Habermas: the objection that his procedural reconstruction and justification of the democratic state is at odds with the self-understanding of citizens in the democratic state, and therefore must be rejected.

1. the legal form and the system of rights I have so far been emphasizing the constraints that Habermas places on normative philosophy: he limits himself to the reconstruction of the structures of discourse rather than the justification of substantive norms. One might wonder at this point what the real advantages of this approach are. By leaving the justification of substantive norms to actual discourses, it may seem that at the end of the day, and after so much elaborate theorizing, the upshot of Habermas’s political philosophy is minimal, because it is so abstract and procedural. If true, this would, in a way, be the opposite of the problem that troubles Rawls’s enterprise. Rawls, after all, has a concrete proposal about a system of basic rights, of just distribution and the basic structure of society, of the requirements of public reason, and so on. His problems stem from the justification of those substantive norms. Although I intend to call this into doubt later, so far Habermas looks to do better in this respect. The discourse principle is foundational for Habermas in a way similar to the manner in which reflective equilibrium and the conception of the reasonable person are foundational for Rawls: both constitute the entry point into the enterprise of normative political theorizing—without the contextualistic character of the Rawlsian approach, since Habermas holds that the discourse principle is universal—all beings socialized in a natural language are committed to it.1 But the discourse principle does not give us any substantive norms that we can use to justify or criticize our political order.2 It is true that the discourse principle does show that social relations are subject to discursive justification and are always open to potential critiques.3 However, one might wonder whether communicative rationality and the discourse principle might be more useful for Habermas’s critical social theory, where they can be used to articulate the colonization thesis and “pathologies of the lifeworld,” than they are for normative political theory. That no social relation is insulated from discussion or critical inquiry is certainly a fine point to make; the application of the discourse principle



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to various sorts of practical discourses in order to generate rules of argumentation is of some interest, but these implications might initially sound uninformative for political theory, since Habermas is not in a position to say which kinds of discourse should be employed in which kind of cases, or how the division of labor between moral and legal discourses, or law and the lifeworld, ought to be distributed. But Habermas is not guilty of this vacuity—he avoids it by combining the elements of his formal discourse theory with what he argues are functionally necessary features of modern societies, in particular, the legal form. The idea is that we can arrive at a more incisively critical theory by combining the discourse principle (which, as I have stressed, is by itself indeterminate as far as specific norms are concerned) with a thicker empirical input. Habermas’s characterization of the legal form is also abstract, however. Modern law, for him, is positive law: it is conventional, artificial and enacted, enforceable and coercive, and dependent upon the changeable will of a lawgiver. In this sense, valid law is not internally related to morality as, for example, with Kant, where law is connected to a subclass of moral duties (perfect duties toward others) that may be coercively enforced. Here again, Habermas is in accord with Kelsen and Hart’s legal positivism: in order to determine whether a norm constitutes valid law, one looks not to its content but its pedigree. In most other ways, however, Habermas’s understanding of the legal form is consonant with Kant’s. Legal norms, for Habermas, address legal persons, and the conception of a legal person is thinner and more abstract than that of moral persons (particular persons with unique life histories, intimate relationships, and varied motivational capacities), much less that of ethical persons, who, in addition to the features of moral persons, also have their own distinctive aspirations and conceptions of the good. Legal norms address subjects who are only assumed to be capable of mutually influencing one another, capable of free choice (and thus can be held accountable for compliance or violation of a norm), and purposive rationality (and thus can choose to obey the law for strategic reasons) (BFN, 111–13). In another way, however, the conception of a legal person is more determinate than that of a moral person (though less so than for ethical persons), as legal persons are artificially defined in a way that moral persons are not: laws are addressed to those persons who happen to be subject to a certain political regime whose scope is limited, variable, and contingent (IO, 256). Just as the moral principle of universalization is the result of applying the discourse principle to argumentation about generalizable interests,

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Habermas’s “democratic principle” results from applying the discourse principle to the problem of how to discursively regulate our collective lives through the medium of modern law. It is important to realize what kind of work the legal form is supposed to do in Habermas’s argument. The democratic principle is not implicit in it; the demand for democratic legitimation is not simply implied by the fact that modern law must be positive and enacted; it is conceivable that positive law could be justified by some combination of its authoritative pedigree and its formal features. Max Weber, to take an example that Habermas draws upon, emphasizes the legitimating power of the latter. Even though Habermas’s position is not fully developed in the 1986 essay “Law and Morality,” his critique of Weber’s concept of law in that essay makes it clear that, in his view, the legal form itself cannot beget a principle of legitimacy.4 Weber associates the modern legal form with formalism and impartiality; although he is not blind to the fact that modern law is positive and enacted, he links legal validity to the formal and impartial features of what he regards as the well-developed legal systems of his time. Law, for Weber, should be fully general (that is, not tailored to specific groups or contexts), impartially administered, transparent, and systematic. He contends that law is legitimate to the extent that it approximates this ideal of a liberal legal paradigm, and thus he opposes the “materialization” of law—that is to say, gearing the legal system to address socioeconomic problems such as poverty, unemployment, or other specific social goals. Weber’s idea of generating legitimacy out of formal legality does, it should be said, articulate a powerful intuition that proponents of the classical liberal legal paradigm emphasize: law is legitimate insofar as it treats everyone the same, without regard for status or station, and insofar as it refrains from taking sides in social conflicts and private disagreements. But as Habermas observes, Weber’s thesis does not have much empirical support: As a glance at the European workers’ movement and the class struggles of the nineteenth century shows, the political systems that have so far come closest to Max Weber’s model of legal domination were by no means experienced as legitimate per se. (LM, 244)

In Weber’s hands, formalism claims to be a guaranty of equality under the law, but as the critique of laissez-faire liberalism, and the subsequent critique of the welfare state, makes clear, a guaranty of neither formal nor material equality, by itself, is sufficient to secure the autonomy of the citizen. Thus, a different sort of justification for the legal form must be in order. Habermas introduces the legal form simply by way of a functional argu-



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ment. He writes: “This elucidation is part of a functional explanation and not a normative justification of law. The legal form is in no way a principle one could ‘justify,’ either epistemically or normatively” (BFN, 111–12). The idea here is that the legal form is quite simply the only medium available for the consensual social integration of modern communities, and therefore does not require a normative justification, as it might if there were media that represented viable alternatives to modern positive law. If Habermas is correct about this, however, his argument can be used to justify the introduction of only those features of the legal medium that are functionally necessary for the rule of law as such. Habermas contends that both modern moral consciousness and positive law are functionally indispensable for the integration of modern societies on account of the fact that such societies can no longer be held together through a pervasive and unreflective allegiance to strong cultural traditions. Modern morality and law emerge simultaneously (conceptually speaking, at least) as a result of the heightened reflexivity of modern consciousness. In arguing for the conceptual complementarity and co-originality of modern law and morality, Habermas contends that this complementarity is “suggested by a sociological approach[.] . . . [T]he constitution of the legal form became necessary to offset deficits arising with the collapse of traditional ethical life” (BFN, 113). According to the narrative told in classical social theory, with which Habermas is largely in accord, in premodern societies social norms were concatenated in authoritative traditions that were largely insulated from criticism, with law and morality as relatively indistinct moments of an ethical totality. The degree to which premodern societies formed seamless totalities is no doubt variable and easy to exaggerate, but what seems less contestable is that premodern societies have depended upon the authority of traditions for their integration to a much greater extent than their modern counterparts—and that, for a variety of reasons, reflexivity is not built into them to the same degree that it is in modern societies. When persons become reflective with regard to the authority of action norms and when hermeneutic clarification fails to reinforce the authority of tradition, reflexive discourses of justification are required, and conscientious reflection about right action in the form of universal moral consciousness is one such form of discourse. But postconventional morality concerned with right action and justice, and distinct from traditional rules and motivational complexes constituted by conceptions of what is good, noble, worthy, and so forth, is both cognitively demanding and motivationally weak, on Habermas’s account. This is because moral discourses

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rely on a rigorous kind of abstractive and empathic reflection, demanding that persons think through how their action norms appear from the perspective of all affected persons, and whether those norms would be rationally acceptable from this universal perspective.5 By itself, postconventional morality motivates only by showing that a course of action is right. These factors place serious limitations on the amount of work that postconventional moral discourses can do in integrating societies. They are, therefore, not functionally adequate substitutes for the decline of traditional ethical life’s integrative power. Modern law steps into this vacuum as both a system of action norms and cultural knowledge: it provides a system of authoritative and coercive norms that also serves as cultural knowledge by giving people a general sense of how others can be expected to behave (for example, people can normally be expected to pay their taxes, stop at stop signs, refrain from violence, and so forth). We can generally know what the law is without engaging in rigorous abstract reasoning, since law is posited and publicly accessible, and can generally expect that others will comply with it—not necessarily because they are conscientious people or have ethical beliefs like our own, but because they desire to avoid sanctions (BFN, 114–17). The legal subject is “unburdened” of the cognitive demand to apply abstract norms to complex situations under temporal and spatial constraints, and from the motivational burden always to act conscientiously. Absent a revival of strong traditions within modernity, positive law is an indispensable resource for legitimacy and social coordination. While Habermas has, in more recent years, emphasized the contingency of the legal medium, some of his earlier work offers a stronger, more normatively loaded justification for modern law. In Theory of Communicative Action, Habermas argues that the positivity and formalism of the modern legal system needs to be understood as a consequence of modern, “posttraditional” moral consciousness: “The form of modern law is to be explained . . . in terms of the posttraditional structures of moral consciousness it embodies” (TCA 1, 260). The development of this modern moral consciousness is, for Habermas, not just a form of consciousness that happens to appear in the modern European world, but a development with an internal, rationally reconstructable logic. In Between Facts and Norms, Habermas basically contends that, once traditional forms of ethical life have dissolved, modern moral consciousness emerges on the scene. It turns out, however, that it cannot come close to fulfilling the same functional requirements for social integration, and the modern legal form proves to be indispensable for



Discourse Theory and the Constitutional Democratic State

filling this vacuum. In Theory of Communicative Action, Habermas acknowledges, with Weber, that the modern legal form can, to a certain extent, be understood as developing in tandem with market economies, opening up domains within which instrumentally rational action could be considered valid. But that is, at best, a partial explanation, for we have yet to say why it is that, in these domains, an instrumental orientation is legitimate.6 Although the development of the modern legal form is related to the imperatives of the capitalist economy, persons still must be willing to accept the validity of instrumentally motivated actions that are justified by reference to conventionally posited, rather than traditionally valid, norms. And this requires a learning process: “The rationalization of law reflects the same series of stages of preconventional, conventional, and postconventional basic concepts that developmental psychology has shown to obtain in ontogenesis” (TCA 1, 258). The justification of a positive legal order depends on the structures of modern moral consciousness in the following manner: The positivization, legalization, and formalization of law mean that the validity of law can no longer feed off the taken-for-granted authority of moral traditions but requires an autonomous foundation, that is, a foundation that is not only relative to given ends. Moral consciousness can satisfy such requirements at the postconventional level. It is here that there first emerges the idea that legal norms are in principle open to criticism and in need of justification. (TCA 1, 260)

To be sure, Habermas would now probably put this somewhat differently: modern morality involves but one form of post-traditional justification, and post-traditional legal justification does not stand in a subordinate relation to it. For that matter, it is not clear that Habermas wants to rely on such developmentalist arguments anymore: they suggest that the use of the legal form is normatively called for by the internal logic of post-traditional consciousness and not just functionally required. He now gives the impression that the functionalist argument is sufficient for his purposes, avoiding appeal to the ontogenetic premises that have proven to be such a controversial element in his thought. Whether he can, in fact, avoid recourse to these developmentalist arguments is a question we will consider in the next chapter. So, to bring a few strands of argument together: modern law integrates societies not held together by a thick, common ethos by creating a domain of action within which persons may legitimately act strategically. Legal norms define interaction complexes whereby actors are relieved of the burdens of communicative action, and are thus free to pursue their interests.7 It is expected that persons interacting within legally defined and regulated

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systems like markets and bureaucracies will be responding to “media” such as money and power instead of norms, and will be oriented toward the advancement of their own preferences, rather than toward cooperation or mutual understanding. But that is not necessarily to cede control over social integration to autonomous systems, insofar as the interactions within these legally defined contexts can be seen as authorized by rationally acceptable norms. Persons, even while acting strategically, can be aware that it is rationally acceptable for them to act in such a way, within legally defined contexts; a similar point may be made about the legal regulation of nonlegally defined contexts, such as the family, in which we do not presume that persons are oriented toward conscientious action, narrowly construed (that is, insofar as we assume that their motives are more complicated than simply the desire to act out of respect for the moral law). Law must make possible a dual perspective on itself: it can always be encountered as a social fact that defines risks and consequences for its violation, which strategically oriented actors must take account of when pursuing their interests. On the other hand, in order for it to be legitimate, law must at least make it possible for actors to view legal norms as norms that should be followed for good reasons. Since the authority of positive law cannot be underwritten by a common ethos and, contra Weber, it has no intrinsic features of its own that render it legitimate, the legitimacy of law—the reason that a conscientiously oriented person has for recognizing its validity—must come from elsewhere.8 Habermas writes: A legal norm has validity whenever the state guarantees two things at once: on the one hand, the state ensures average compliance, compelled by sanctions if necessary; on the other hand, it guarantees the institutional preconditions for the legitimate genesis of the norm itself, so that it is always at least possible to comply out of respect for the law. (BFN, 448)

Since Habermas rejects foundationalism in moral and political theory, these “institutional preconditions” cannot mean institutional mechanisms designed to ensure that positive law is compatible with an exogenously determined moral order.9 Rather, it refers to conditions under which the discursive legitimation of law is possible. Habermas characterizes his principle of legitimacy—the democracy principle—as the result of “the interpenetration of the discourse principle and the legal form” (BFN, 121). This “interpenetration” is said simultaneously to represent “the logical genesis of rights.” Thus, we have four concepts in front of us: the discourse principle, the legal form, the democracy principle, and the system of rights. According to Habermas’s argument, the



Discourse Theory and the Constitutional Democratic State

combination of the former two concepts gives rise to the latter two. The idea here is to use the theoretical materials we have at hand—the discourse principle and the legal form, which has been said to be functionally indispensable—and apply them to the practice of self-government, which, because of the indispensability of the legal form, must take the form of a constitutional practice of juridical collective self-legislation. Habermas’s argument sounds, in places, as if it simply consists in mixing the former two (the discourse principle and the legal form) together, and watching as the latter two (the democratic principle and the system of rights) emerge: “The logical genesis of [the system of rights] comprises a circular process in which the legal code, or legal form, and the mechanism for producing legitimate law—hence the democratic principle—are co-originally constituted” (BFN, 122). Quick sketches of the argument make it sound like a lot of hand-waving, first of all because the argument takes an avowedly circular form, making any linear presentation of it problematic, but also because Habermas shifts here between the legal form, which operates as a functional input for constitutional practice, and the legal code, which is part of the normatively binding result of this practice, giving the impression that some smoke-and-mirrors are being used. But the care with which Habermas develops his argument belies this impression. He stresses that it begins from an observational perspective: “As in social contract theories, [the system of rights] should be introduced first of all from the perspective of a non-participant” (BFN, 118). Why start here? Habermas emphasizes that his argument is juridical from the beginning because he has made the point that the project of political self-legislation in the context of modernity cannot even get off the ground unless the legal medium is presupposed. We cannot, after all, use postmetaphysical reason to argue that the legal form is given to us a priori by human reason. So we have to start from outside the participant’s perspective by determining that we, once we do begin our constitutional practice as participants, need to use the legal form in order to discursively organize our social lives. The external perspective draws on the “models” provided by “two hundred years of European constitutional law” (BFN, 129). Knowledge gleaned from this perspective informs us, first, that this aspiration has to take place through the medium of positive law. That is, we will have to render ourselves as citizens and will have to arrange for the creation and the administration of law. Now, we can see that the discourse principle places certain demands on the legal process recommended from the observational perspective: while

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we know by now that the discourse principle itself does not necessitate assigning any rights, it “reflects those symmetrical relations of recognition built into communicatively structured forms of life in general” (BFN, 109). In order for our constitutional practice to be legitimate, according to the discourse principle, those participating in it must legally recognize themselves and others as responsible agents entitled to an equal say in the political process. Put another way, successful constitutional practice depends, in the first place, upon guarantying the “communicative freedom” of participants: their ability freely to enter into, or freely opt out of, communicative practices, to say what they believe and have it considered, to accept or challenge arguments and proposals (BFN, 119). If the legal form is being presupposed, this means, according to Habermas, that the participants must assign equal rights to one another, as the notion of actionable rights is essential to the modern legal form: “[T]his legal form itself already gives rise to the privileged position that rights occupy in modern legal orders” (BFN, 119).10 More specifically, it implies a general right to equal liberties (BFN, 120). Thus, we are in a position to posit three categories of rights that define the participants as citizens: (1) “the right to the greatest possible measure of equal individual liberties,” (BFN, 122); (2) basic rights of membership as legal consociates; and (3) actionable rights for individual legal protection. All told, these rights constitute the legal code—“[T]here is no legitimate law without these rights” (BFN, 125). Habermas takes the general right to equal liberties to be constitutive of the legal form as such; the second set of rights locates the legal community in space and time; and the third set provides for due process, making these rights meaningful. These are the liberties of private persons whose communicative freedom must be secured before they can enter into a process of collective self-legislation that can be legitimate. Now, the latter statement makes it sound as if the integrity of private persons is foundational for the project of autonomous self-government, which is obviously a conclusion that the antifoundationalist in Habermas wants to avoid. But nothing essential is supposed to hinge on the order of presentation; there is another equally valid sense in which the citizens themselves must be in a position to give themselves these rights through constitutional praxis before they can be said to have them at all. From this perspective, Habermas is a legal positivist about rights.11 In order for the citizens to give themselves their private liberties and to give these liberties real content, we need to posit a fourth set of rights: rights securing the equal opportunity to participate in the legally constituted practice of collective self-government—that is, rights of equal access to the political process.



Discourse Theory and the Constitutional Democratic State

Finally, in order to make these formal rights meaningful, citizens must have the resources needed to make extensive use of them: hence, we posit a final category of equal social, technological, and ecological rights. In Habermas’s argument, we imagine ourselves a group of persons who want to legitimately regulate our social life; because of our commitment to mutual understanding, we presuppose the discourse principle, which we may introduce as an unavoidable normative presupposition for mutual understanding among persons who must (at least occasionally) engage in discourse in order to have any cooperative social life. But as participants we may presuppose nothing else, especially no cultural knowledge (such as the vocabulary of rights, duties, or enacted law), since what we are after are the presuppositions that any modern community must fulfill in order to legitimately regulate their lives together. We cannot realize through, say, a rational intuition that we must use positive law to regulate social life (this would be, as Kant argues, but Habermas does not, that morally decent coexistence among rational agents requires the rule of law). Rather, we shift into an observational perspective whereby we learn that positive law is the medium we must use, at least in the context of modernity, to accomplish our goal. Now, when we return to the participant perspective, we bring with us objective knowledge about the social mechanisms required to operationalize the discourse principle: we must employ the medium of law and recognize and define ourselves as legal persons and rights bearers. The horizontal structure implied by the discourse principle translates this into a set of equal private liberties. We must be careful at this point, since we are liable to think that these first steps in the argument serve to constitute and justify the legal code and the set of private liberties, and the democratic principle and public freedoms are subsequently justified as implications of institutionalizing the discourse principle. That would be a problematic way of construing an argument intended to show the co-originality of public and private freedom. Habermas’s is not an argument that purports to reveal the natural rights that consociates actually have in a prepolitical sense. We have instead learned of the kinds of statuses that we need to assign to one another in order to legitimately constitute the legal code, but we have not actually conferred these legal statuses upon one another yet. Habermas makes this clear when he writes as follows: Thus far, nothing has actually happened. Nothing could happen: before the participants conclude their first act of lawmaking, they must achieve clarity regarding the enterprise they have resolved upon with their entrance into a practice of constitution making.12

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Here, we again find Habermas’s central idea that norms have no actual substance in advance of their being discursively concretized and applied. In order to constitute the legal code in a way that is itself legitimate, we require the tools to legally give ourselves the rights constitutive of the legal code itself, and so we are obliged to posit the democratic principle, the public, participatory freedoms (category 4), and the rights that grant the material conditions for the more or less equal exercise of these rights (category 5): “[T]he principle of democracy must not only establish a procedure of legitimate lawmaking, it must also steer the production of the legal medium itself ” (BFN, 111). This all serves to reveal the presuppositional structure of the practice of legitimate collective self-governance in the context of modernity. Just as we have to be careful to avoid seeing this reconstruction as an expository device that reveals the moral rights that persons are obliged to grant one another, we also should avoid seeing it as too closely related to more familiar social contractarian models of justification. That is, this is not a thought experiment that directly justifies a principle of popular sovereignty and a system of rights by uncovering a hypothetical original agreement—for example, “these rights and principles are justified because anyone who is committed to the communicative regulation of social life would have agreed to them in order to constitute the legal community.” Such an argument, for Habermas, would either be empty or question-begging, since it would have to presuppose the framework that would make such an agreement legitimate.13 Notice that none of these categories of rights specify any concrete right: Habermas avoids phrases like “right to due process,” “right to vote,” “freedom of expression,” and the like. The reconstruction of the system of rights establishes only the kinds of rights that constitute the legal code and the process of legitimate lawmaking: “[T]he basic rights inscribed in the legal code remain unsaturated, so to speak. They must be interpreted and given concrete shape by a political legislature in response to changing circumstances” (BFN, 125). Giving specific shape to the legal code is the task of citizens, who must tailor the legal code to their particular political culture and circumstances. As we have already seen, Habermas does not believe that philosophers are in a position to make these sorts of concrete prescriptions and insists that actual discourses are necessary in order to answer practical questions. Later, he expands on this idea, making it clear that the actualization of the system of rights, enshrined in particular constitutions, is the historical task of a political community, who have to reinterpret the promise of a constitution and constantly reactualize its emancipatory achievements.



Discourse Theory and the Constitutional Democratic State From this long-term perspective, the constitutional state does not represent a finished structure but a delicate and sensitive—above all, fallible and revisable— enterprise whose purpose is to realize the system of rights anew in changing circumstances, that is, to interpret the system of rights better, to institutionalize it more appropriately, and to draw out its contents more radically. This is the perspective of citizens who are actively engaged in realizing the system of rights. (BFN, 384)

Some further clarifications about this central argument are no doubt in order. Let us start with the circular structure of this argument and the perspective shift that it contains. What, if anything, makes Habermas’s argument here a “virtuous” circle, rather than a “vicious” one? As Ingeborg Maus writes: “Subjectively or intersubjectively elaborated justifications are necessarily circular if only because they can no longer presuppose common reasons.”14 Maus’s suggestion is that postmetaphysical justifications must all be, in a certain sense, circular, since they abjure appeals to “the given,” or to self-evident premises. But some circles are more circular than others. Rawls, for example, certainly qualifies as a postmetaphysical philosopher, whose argument proceeds, not from anything given, but from reflective equilibrium, which is a hermeneutic circle of sorts. But Rawls uses reflective equilibrium to garner substantive premises that are treated, for methodological purposes, as given for the constructivist argument. Clearly, Habermas’s argument, where public and private autonomy, the democratic principle and system of rights simultaneously coconstitute one another, is a more circular circle than this. The legal medium establishes a logical relation between rights-bearing individuals and constitutional lawmaking; in elaborating this relation we could start with either rights bearing individuals who constitute a practice of legitimate lawmaking, or with citizens who mutually grant one another rights through their lawmaking practice. To put a finer point on it, the argument shows that we cannot actually start at one end and proceed to the other without begging the question. Depending on one’s sympathies, this might show us something profound about the coherence structure of democratic constitutionalism, but it could also be taken as a demonstration of the theoretical implausibility of that paradigm, or as evidence that a more foundational model of the democratic constitutional state is unavoidable. After all, unless we are willing to think of “the people” as a quasi-natural entity with a prepolitical existence, we appear to be involving ourselves in some Hegelian bootstrapping maneuvers of the sort that Derrida has famously pointed out (for example, “the people declare their independence, yet this declaration is itself that which

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constitutes ‘the people’”), and this is bound to seem problematic to a lot of philosophers.15 In the case of Habermas’s argument, the paradox is this: we need to constitute ourselves as a political community before we can give each other rights, and yet we need already to be rights-bearers in order for this activity to be legitimate.16 The key to understanding Habermas’s argument here lies in the importance of the perspective shift that is undertaken in the course of elaborating the circle. For those familiar with Habermas’s usual insistence on the superiority of nonobjectivating, hermeneutic models of understanding in the human sciences,17 it may be startling to see him make such liberal use of an observational perspective when elaborating the system of rights. One instead probably expects an intersubjective justification for basic rights that begins from and ends with the participant perspective. A thumbnail sketch of such an argument might run as follows: persons who sincerely take up the collective project of authoring the norms that will govern social interaction will discover, upon reflection on the practice, that they must—indeed, as fellow lifeworld participants, already do—recognize their interlocutors as persons of integrity and dignity. Once institutionalized, this form of recognition would constitute basic rights. This political, pragmatic, recognitive, and intersubjective justification for basic rights could complement a more universalistic justification for human rights as morally valid claims, consistent with the way Habermas now views basic human rights. And there does not seem to be any obstacle to filling out the recognition relations in communication-theoretic terms. Why does Habermas not opt for this approach, which looks like it is more consistent with his overall program? It must be because of the pivotal importance that he attaches to the legal form. Recall that the discourse principle and the legal form are the materials out of which the system of rights is articulated. The discourse principle has to be introduced from the participant perspective. The legal form, however, cannot plausibly be introduced in this way. The discourse principle is an indispensable presupposition for persons who are trying to achieve mutual understanding about any kind of action norm, and the legal form is similarly indispensable for the practice of collective self-government. But there is a crucial difference. The discourse principle is a pragmatic presupposition of the pervasive practice of discourse; participants socialized in linguistic forms of life already recognize it, and Habermas claims only to be giving it an explicit formulation—that is, transforming “know-how” into “know-that.” As such, introducing the discourse principle on behalf of participants in communicative action is un-



Discourse Theory and the Constitutional Democratic State

problematic. The modern legal form, however, is not similarly immanent in human social life, but instead is a contingent historical artifact. Therefore, it can be introduced into the argument only from the outside, and must be presented to citizen participants from an observational perspective, in order for them to make use of when seeking to govern themselves. The circle is not vicious because it represents complementarity between participant and observer perspectives, not an operation of logical bootstrapping internal to a single standpoint from which democratic constitutional orders are reconstructed. The perspectives are complementary because neither one, by itself, is sufficient to provide a justification for the system of rights—the theorist cannot dictate to the participants moral contents that they should inscribe in law, and the people cannot simply constitute themselves and give themselves the system of rights through a decisionistic founding moment, just as Habermas’s argument is intended neither to reveal the prepolitical natural rights that persons are obliged to recognize in one another, nor how the system of rights is justified through an original act of popular sovereignty. As such, it is misleading to think that, even when taken together, both perspectives provide a sufficient justification; Habermas’s elaboration of the system of rights and the democratic principle does not provide a justification for the system of rights in the way that natural law or social contractarian theorists understand justification. It is not justified in one fell swoop by either a demonstration of its moral rightness or its being the object of some original agreement. “The law receives its full normative sense neither through its legal form per se, nor through an a priori moral content, but through a procedure of lawmaking the begets legitimacy” (BFN, 135). The system of rights is legitimated through the process of citizens learning anew and (it is hoped) more adequately what it would be for everyone to have equal rights, and enact those insights through the democratic process; the justification is circular because it is one that unfolds in time through the pursuit of a constitutional project. [E]ach citizen of a democratic polity can at any time refer to the texts and decisions of the founders and their descendents in a critical fashion, just as one can, conversely, adopt the perspective of the founders and take a critical view of the present to test whether the existing institutions, practices, and procedures of democratic opinion- and will-formation satisfy the necessary conditions for a process that engenders legitimacy. Philosophers and other experts can in their own way contribute explanations of what it means to pursue the project of realizing a self-determining association of free and equal consociates under law. On this premise, each founding act also creates the possibility of a process of selfcorrecting attempts to tap the system of rights ever more fully.18

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What is important to emphasize here is that even though the legal system is legitimated with reference to a founding moment, this does not mean that its legitimacy is sustained by maintaining fidelity to a pregiven scheme of liberties and procedures, already established by, for example, Rawls’s original position, a constitutional text, or a scheme of natural rights.19 Unlike these, Habermas’s system of rights is not a container, fully formed prior to ordinary politics, within which legitimate politics takes place. The legally constituted democratic process legitimates itself by re-creating itself through the practice of self-legislation, which in turn depends on ever more adequately realizing the public and private autonomy of all citizens through the system of rights.

2. j ustifying the discourse principle and the legal form Now that we have the core of Habermas’s political philosophy in front of us, we can take initial stock of the senses in which it might offer an advance over Rawls’s substantive theory of political justice. We can adduce three apparently distinct reasons for its preferability: (1) Habermas might be thought to have a more sociologically informed account of the prospects for and obstacles to the institutionalization of democratic procedures and the administration of justice in modern, complex societies. (2) He might be thought to have a sounder metaphilosophical view of the aims of political theory—that is, he might have a better conception of the kind of modesty appropriate to postmetaphysical political philosophy. (3) He might be thought to have a less ambiguous, better theorized account of the normative sources of his theory. The first claim seems correct—one could disagree about the adequacy of Habermas’s social theory, but there is no doubt that it presents us with more of a worked-out, complete view of how justice and legitimacy could be actualized in modern societies. But it is hard to see this as a decisive advantage for Habermas. Certainly, it might be useful to have such a sociologically informed perspective, but unless one can make the charge of naïveté stick to Rawls, he may contend that incorporating specialized social theory into his account is inconsistent with his views about the proper ends and limits of political theory. The adequacy of the theory of justice



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is supposed to be evaluated in terms of the everyday moral intuitions of democratic citizens, and as such should be independent of social theory. Of course, it would be damaging to Rawls to show that social theory contradicts the theory of justice in the sense that it shows that the theory of justice cannot be institutionalized, but short of that, his theory is not harmed in any essential way. This brings us to the latter two senses in which Habermas might be thought to have an advantage over Rawls. Unless Rawls’s notion of a freestanding theory can be maintained in all of its austerity (and I have argued in that it cannot), then Habermas’s reconstruction of the procedural framework for democratic self-government might appear to be an appealingly postmetaphysical version of normative democratic theory. But, in contrast to Rawls’s substantive theory of political justice, Habermas’s proceduralism cannot be treated as a “freestanding” conception of justice that can be justified by reference to reflective equilibrium. It cannot be plausibly defended simply as a construction based on the sorts of normative structures that we moderns have come to accept. Or, rather, one could argue that basic rights, due process, and contested elections are all that modern pluralistic societies can achieve a reasonable consensus on, and that political philosophy therefore ought to content itself with a procedural conception of justice and legitimacy. That, however, is not Habermas’s argument, and, as I shall argue shortly, there are sound reasons to reject views of this sort. Therefore, the second reason just adduced for preferring Habermasian discourse theory over Rawls’s theory of justice is not really an independent reason at all, but is rather essentially linked to the third: proceduralism might be thought to be superior to the Rawlsian theory of justice because it depends on a different and arguably sounder kind of justification. That is, it might be thought that Habermas’s theory is preferable to Rawls’s because Habermas is able to elaborate a firmer normative basis for his conception of law and democracy than Rawls is able to muster for his theory of political justice. If Habermas is to be preferred, this will be the decisive reason why. And indeed, this is probably what we should have expected, given the argument in Chapter 3, where I tried to show how the normative basis of Rawls’s theory oscillates between a quasi-descriptive and a moral-metaphysical interpretation of it, neither of which proves to be adequate. There, I suggested that Habermas’s discourse theory might offer us a more critical, yet postmetaphysical, basis for normative justification. And it may seem as though that promise has been fulfilled: the system of rights and the democratic principle are simultaneously elaborated and justified by the application of the discourse prin-

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ciple to the legal form, the discourse principle being justified as the core normative principle of the theory of communicative action, and the legal form being justified as functionally indispensable for integrating modern societies. Yet, we do need to check the assumption that Habermas’s justification for the system of rights and democracy is actually normatively stronger than Rawls’s. The most obvious way to raise doubts would be to question whether the discourse principle and the legal form are themselves adequately justified as the basic ingredients in the reconstructive justification. As I shall argue presently, before turning in the next chapter to what I regard as the most serious challenges to Habermas’s theory, doubts of this sort can be answered without too much trouble. Essentially, what I will be arguing over the course of the rest of this chapter and the next is (a) that Habermas’s arguments for the validity of the discourse principle and for the functional necessity of the legal form are sound enough, so that one can give at least a coherent account of the democratic constitutional state’s rational basis, in largely procedural terms; (b) that the question of whether Habermas’s account is more than merely coherent, but powerful, binding, and incisively critical, is a more serious question; and (c) that the question is one that can be answered affirmatively given a certain interpretation of Habermas’s political program.

A. Justifying the Discourse Principle Habermas sometimes argues as if the disintegration of strong traditions and conventional forms of ethical life leaves discursively mediated rational consensus as the sole source of normative authority left to us moderns; if true, that would make the discourse principle the clear entry-point into the critical reconstructive enterprise. Now, it is easy enough to argue that the discourse principle, or something quite like it, is one source of normative authority, but why should we consider it to be so fundamental? Why is it not the case that once the obfuscating fog of tradition and superstition clears, it becomes clear that utility is the only possible source of value, and that therefore the principle of utility is the only normative principle that is ultimately viable for us moderns? Or, why not say that the transition to modernity has ultimately taught us that all persons are free and equal (Rawls), or that everyone has a right to be treated with equal respect and concern (Dworkin)? To be fair, Habermas does have his own way of capturing these insights: the notion that we all deserve to be treated as free and equal persons is intimated in the discourse principle, the structure of which



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points to a universal communication community with its universalistic structures of recognition (BFN, 106). Nevertheless, Habermas’s formulation is appreciably different. For Rawls, and even more so for Dworkin, the notions of freedom and equality are represented as substantive moral principles that are given to us as foundational pillars of our ethical thought. Thus, if Habermas is able to capture more or less the same intuition, it is only by way of a more roundabout path that does not make immediate appeal to moral principles. In any event, these are just non-nihilistic, nonskeptical versions of this story about what is revealed to us moderns as a result of the collapse of traditional worldviews. The twentieth century has, in addition, produced a number of philosophical luminaries who have argued that the decline of transcendent authority shows us that nothing, by itself, is normative for us. Furthermore, we might question the premise—shared by utilitarian, Rawlsian, Dworkinian, Habermasian, and skeptical narratives—that modernization discredits traditional values in favor of some principled core (or no core at all); instead, it could be that modernity is just another cultural development that has bequeathed to us its own set of distinctive values— what I was earlier calling the modern moral worldview.20 Finally, even if we can single out the discourse principle as being uniquely authoritative, we might still want to be reassured that it is something more than just a principle that European history has happened to cough up.21 Fortunately, Habermas does have a better story to tell than what I have indicated so far. The challenge for justifying the discourse principle is not so much to show that it successfully captures a principle that is normative for us, but rather to show that it captures something so central to the modern self-understanding that its foundational role in his political theory would be warranted. He has, however, persuasively argued something to that effect in Theory of Communicative Action: the marks of the modern worldview are the differentiation and heightened reflexivity of validity claims. They are characterized as a rational advance over animistic, mythological, or otherwise premodern worldviews, not because they are necessarily better at promoting human flourishing, but because their reflexivity allows them rationally to solve problems of social coordination that would otherwise have to be resolved through force or appeal to normatively ascribed authority. The adoption of reflexivity is irreversible—one can be nostalgic for less reflexive, fractured forms of life, but one cannot actually go back to one, nor can cultural systems, absent catastrophic regression. Defenders of the principle of utility, or substantive principles of free-

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dom and equality, or substantive canons of virtues, no longer argue that the authority of their principles is some revelatory truth (or, if they do, we are having a different sort of argument). The authority of substantive principles is established if good intersubjective reasons for them can be given in specific contexts. It is true that in many contexts, we take some principles of utility or efficiency to be authoritative, but that weight is given by the intersubjective recognition of its appropriateness. In discourse, to be sure, substantive principles are appealed to by participants (what else would they be appealing to?), but their validity stems from their ability to withstand critical testing and from arguments for their appropriateness.22 This indicates a certain logical priority of the discourse principle over any of the above substantive principles of ethics or morality: for persons socialized in linguistic forms of life, the validity or appropriateness of substantive principles is established and sustained through discourse. More would no doubt have to be said to establish the developmental superiority of the procedural conception of rationality that Habermas offers in Theory of Communicative Action over substantive conceptions of reason.23 But there is a plausible case to be made that the open, critical, and fallible orientation toward normative accountability expressed by the discourse principle represents an advance over rationality conceived as consistent adherence to a set of substantive principles. Part of the appeal of Habermas’s view on this point comes from the parallels he draws between the validity of moral-practical claims and the acquisition of empirical knowledge; just as valid empirical knowledge depends on correctly processing experience, the validity of moral-practical norms depends upon their being tested and redeemed in actual discourse with those affected. Since Kant, philosophy has been the guardian of reason that opposes dogmatic adherence to supposed givens or absolutes, and instead puts itself on trial. We would therefore appear to have a strong case for introducing the discourse principle as an entry point into normative philosophizing.

B. Justifying the Legal Form What then of the other pillar of Habermas’s reconstructive argument: the legal form? As we have seen, he introduces it by way of a functional argument, which is to say that the justification for introducing it at the basic level of justification does not involve any argument about how we are categorically obliged to enter into legal relations with one another.24 In its simplest form, a functional defense of the legal form would establish that in modern societies in which the authority of traditional forms of ethical life



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has diminished and that are integrated into large-scale economic networks, positive law that has the power to guaranty predictable patterns of behavior through sanctions is simply indispensable. At this level Habermas is not making a particularly novel argument, and it is hard to imagine anyone seriously disagreeing with him. But he is in a position to make a somewhat stronger argument than this. His argument does not merely show that law is necessary for maintaining some basic threshold of order. At the base of Habermas’s social and political thought is an argument that combines normative and functional elements: all societies require legitimacy in order to reproduce themselves—in the long run, persons must have reasons of some sort for accepting their social order as valid.25 In modernity, legitimacy cannot be secured by the widespread and passive acceptance of a system of authority and domination that is thought of as natural and given, or divinely ordained. Thus, the functional demands placed on the legal form are not solely to maintain order, but to maintain rationally acceptable order; this allows Habermas to claim that the equal right to liberties (categories 1–3 in the system of rights) is constitutive of the legal form: a legal system that failed to sufficiently secure a more or less equal distribution of individual rights would be incapable of producing order that was of sufficient rational acceptability to produce the requisite degree of legitimacy functionally necessary for the reproduction of society. I do not claim that there is anything conclusive about the arguments just presented on behalf of the discourse principle and the legal form—I have only tried to dismiss the doubt that the basic ingredients of Habermas’s articulation of the system of rights are arbitrary. Rather, there are strong enough prima facie arguments in favor of discursively achieved agreement as a source of normative validity, and the functional indispensability of legal orders built around actionable individual rights for the nonpathological reproduction of social life, such that combining them gives us a coherent normative account of the democratic state’s procedural framework. So far, however, that is not saying much. After all, much the same sort of thing could be said on behalf of Rawls’s political conception of justice: if it is true that the ideals Rawls picks out (citizens as free and equal, society as a well-ordered system of social cooperation) are central to the modern moral worldview, then a conception of justice constructed out of those ideals might enjoy a certain prima facie plausibility as well. And even if it is true, as I argued, that the discourse principle can be singled out as a more uniquely plausible entryway into normative theorizing about politics than can the Rawlsian ideals, it is equally true that this superior justification is

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bought at the price of considerably more abstraction than we find in the Rawlsian account, where the principles of justice are concrete and substantive. This leads us into some more serious critiques of Habermas’s theory of law and democracy. There are some doubts about whether Habermas’s presentation, whatever its prima facie plausibility, is normatively powerful and consonant with the self-understanding of citizens engaging in the practice of self-governance. Articulating those doubts, and seeing whether they can be answered, is the task of the next chapter.

chapter six

Proceduralism and Functionalism in Habermas’s Theory of Law and Democracy

Initial concerns about the justification of the discourse principle and the legal form are not well founded: Habermas can adduce good reasons for using them as inputs at the basic level of justification. However, a more serious set of objections can be raised at this point. Is Habermas’s rational reconstruction the right kind of justification for democratic constitutionalism? He argues that the mutual implication of the discourse principle, the legal form, the system of rights, and the democratic principle amount to a reconstructive justification of the procedural features of the democratic process—that is, the system of public and private liberties that make the production of legitimate law possible. But that seems problematic in a number of ways, for Habermas looks to not be capturing the reasons that participants in practices of self-government would give for viewing those practices as justified. From the perspective of Habermas’s reconstructive, presuppositional analysis, the essential features of a given legal order are justified to the extent that they make the rational and autonomous governance of society possible. From the perspective of participants, however, political judgment is a substantive matter: the essential features of a political framework are considered valid because they are viewed as substantively right or good, a point that Rawls captures well when he argues that persons in an overlapping consensus justify the political conception of justice to themselves in light of their own comprehensive doctrines. This raises a potentially serious problem for Habermas, because his philosophical method depends on a harmonistic relationship between the objective perspective of reconstructive theory and the participant perspective. In Habermas’s theory of universal pragmatics, for example, when we reconstruct the system of validity

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claims and reference, we are taking knowledge that it is presupposed by participants and rendering it explicit—that is, transforming know-how into know-that. Although the theorist may use this reconstructed knowledge to critical effect by showing how participants fail to live up to the idealizations they presuppose, the key point is that they do presuppose them, and so to that extent the theorist is neither adding anything contentful to the knowledge the participants already have, nor offering a redescription that would be at odds with the reflective self-understanding of the participants. But the existence of this harmony seems questionable in Habermas’s political theory. Bernhardt Peters succinctly expresses the problem: [We] might well say (with Habermas) that what marks a modern worldview as rational, and institutions like science, law and politics as rational enterprises is not any substantive insight or achievement, but a general openness to argument and criticism or the reliance on certain forms of open discourse. From the standpoint of the participants at any given historical moment, however, it is obviously not this feature alone, but it is still the convincing force of substantive arguments that (ideally or rationally) leads them to accept certain propositions as true, certain norms or institutional orders as legitimate.1

In the reconstruction of the system of rights, the perspective of reconstructive legal theory complements the citizen-participant perspective by revealing to citizens how they ought to constitute the practice of self-government through the medium of law; although in this case the theoretical perspective does add something not contained in the participant perspective by itself (that is, the legal form), the theorist is not redescribing the participants’ practice. But Peters’s suggestion is that the reasons that participants have for considering laws and legal systems, rights and systems of rights, legitimate will differ in kind from the philosophical reasons that Habermas offers for their justification. If this difference really does drive a wedge between the stand-in and the interpreter, the objective and participant perspectives, then the soundness of Habermas’s whole approach in this area is in jeopardy, as it depends on these perspectives being more or less complementary so that participants may bring knowledge gleaned from the objective, reconstructive perspective to bear on their practice. The most credible critiques of Habermas’s theory of law and democracy—critiques of his formalism or proceduralism, on the one hand, and of his legal positivism or functionalism, on the other—turn on this tension in one way or another, by arguing that his account does not capture the substantive grounds upon which the democratic legal order must be justified. I shall argue that these criticisms do require us to interpret Habermas’s argu-



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ment in a way that makes some concessions to the Rawlsian position, by conceiving of reasonableness as a substantive commitment to a rational and communicative form of life shaped by a process of legitimate lawmaking. On the other hand, by the end of this chapter, I will show that the point of Habermas’s derivation of the system of rights and principle of democracy is appreciably different from the Rawlsian enterprise as to make the criticisms discussed here miss their mark. For while both Rawls and Habermas seek to articulate a normative framework within which legitimate political communication can take place, Habermas is not giving us a fixed and firm framework of moral principles that the business of legitimate self-government can take place within, once it is in place. I will be calling theories of the latter sort container theories of legitimacy. In the next chapter I will argue that Rawls is committed to such a thing, and in Chapter 8, I will develop the Habermasian alternative to it. According to Habermas, a container theory is not really possible under conditions of postmetaphysical reason, nor would it be normatively desirable if it were. Seeing this makes Habermas’s argument that the legal system has a rational, but not a specifically moral, foundation less unsettling. For Habermas, a legitimate democratic practice is not something that takes place inside a container made of prepolitical moral principles—it is constrained by the preconditions for rational discourse through law, but the actual shape that these preconditions take is something that has to be constantly worked out by participants, through moral, ethical, and pragmatic discourses. This leaves the normative substance of the democratic constitutional state considerably more underdetermined than it is for a Rawls or a Dworkin, but it also, Habermas thinks, reveals the empancipatory, performative meaning of the system of rights in a way that container theories cannot.

1. proceduralism and formalism Habermas has consistently resisted all attempts to view the legal system as justified by virtue of reflecting either substantive moral norms or a form of ethical life. The former he associates with natural law theories, the latter with Hegel’s subordination of law and morality to ethical life. Both strategies suffer from a weakness common to substantive approaches, Habermas thinks, and proponents of both approaches make very similar arguments against him. I will take up the natural law (A) and ethical life (B) objections in turn.

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A. The System of Rights from the Perspective of Moral Foundationalism In his essay “Pluralism and Proceduralism,” Joshua Cohen argues that democracy should be considered a substantive moral ideal with regard not just to its justification and rationale but also to its preconditions. He criticizes Stuart Hampshire, who attempts to turn Rawls’s “fact of pluralism” against him by contending that the deep pluralism pervasive in modern democracies effectively rules out the possibility of any unforced consensus on a substantive conception of justice and underlying ideas of personhood and society, or the common good. Instead, according to Hampshire, democracy represents, at best, an unforced consensus on a fair way to settle conflicts that arise among people who disagree about substantive justice.2 Against this, Cohen contends that procedure and substance come “as parts of a package” and that “moral pluralism does not drive a wedge between them.”3 His basic argument is this: we cannot say that we consider the democratic process to be legitimate simply because it is a fair procedure without explaining what makes it fair, and that inevitably involves us in substantive considerations. Democracy, insofar as it is supposed to be an attractive normative ideal amounting to more than simple majoritarianism or aggregation of interests, ought to be characterized as a process that is both open to the contributions and voices of all and protects certain fundamental interests shared by all.4 We can only make sense of why we think of democracy so, Cohen argues, by referring to a substantive moral conception of persons as free and equal: Democracy, in short, is a procedure that institutionalizes an idea of citizens as equals. Agreement on the democratic process—a constitutional consensus— must also, then, constrain what can count as an acceptable reason within that process. For if one accepts the democratic process, agreeing that adults are, more or less without exception, to have access to it, then one cannot accept as a reason within that process that some are worth more or less than others, or that the interests of one group are to count for less than the interests of others. And that constraint on reason will limit the substantive outcomes of the process, in ways that supplement the limits set by the generic idea of a fair procedure.5

In Chapter 3, I urged us not to make the mistake of thinking that Habermas’s proceduralism is of the same sort as Hampshire’s: Habermas’s is based on a theory of rationality, whereas Hampshire’s is based on what he sees as the consequences of the fact of moral pluralism. Yet even though Habermas does not argue, as does Hampshire, that a procedural consensus is all that we can reasonably expect in modern pluralistic societies, he nevertheless runs afoul of Cohen’s argument by reversing the order of jus-



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tification that it suggests. For Cohen, democracy becomes an attractive ideal by virtue of being based on substantive ideas of persons as free and equal beings—according to his argument there could be no justification for the procedure independently of or prior to the justification of substantive moral norms. Habermas, on the other hand, does capture the notion that persons are to be thought of as free and equal, but that is an implication of applying the discourse principle to the legal form, just as basic rights are justified by virtue of being necessary for constituting the legal process, not by direct appeal to conceptions of the person and substantive moral norms about essential interests that persons are entitled to have protected. And in his earlier accounts of the normative presuppositions of discourse, we find a similar argument: the practice of discourse constrains us to view our interlocutors as free and equal persons. The result of these Habermasian arguments is arguably similar to the moral-foundational, substantive arguments advanced in metaphysical (Dworkin, Larmore) and nonmetaphysical (Rawls, Cohen) forms. But Habermas does not make foundational claims about what moral norms are true, or how human beings are entitled to be treated by virtue of their nature; instead, he argues that this is how we must regard others insofar as we are participants in certain pervasive, inescapable practices (discourse, collective self-government) by virtue of being socialized in linguistic forms of life. And Habermas’s method should be impossible, according to Cohen and Peters, or at any rate, it cannot capture the way that the democratic legal process is justified for us, since procedures have to be justified in terms of the substantive goods, values, or norms that they embody or promote.6

B. The System of Rights from the Perspective of Substantive Ethical Life Habermas’s rejection of Hegelian ethical life has often drawn the ire of thinkers hostile to the neo-Kantian separation of the right and the good, but he has also been pressed on this point by more sympathetic critics such as Richard J. Bernstein and Albrecht Wellmer.7 Well-crafted democratic procedures do not by themselves a legitimate legal system make, these critics argue, but rather they require an active citizenry that is willing to deliberate in good faith, accept reasonable and rational arguments, and be oriented toward the common good rather than their own particular interests. In the absence of such a “democratic Sittlichkeit,” as Wellmer calls it, the most elegantly designed procedures and constitutional structures will not lead to the expectation that the results of the process will be rationally acceptable to all citizens, but will threaten instead to degenerate into a non-nor-

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mative form of politics, like the bureaucratic management of depoliticized populations (technocracy) or elites and social groups struggling for power (interest group pluralism). For the most part, Habermas has been happy to concede this much—he writes repeatedly of the need for a populace accustomed to freedom and a rationalized lifeworld that accommodates the demands of discourse theory: “[D]eliberative politics is internally connected with contexts of a rationalized lifeworld that meets it halfway” (BFN, 302).8 He also recognizes that the legal system is permeated by the ethical life of the community and that there is a perfectly legitimate role for hermeneutic self-clarification to play in the lawmaking process: [It] is inherent in the concrete nature of matters to be regulated that in the medium of law—as opposed to morality—the process of setting normative rules for modes of behavior is open to influence by the society’s political goals. For this reason every legal system is also the expression of a particular form of life and not merely a reflection of the universal content of basic rights. (IO, 217)

These concessions, though, have not satisfied critics of a republican, communitarian, or Hegelian bent. For the dependence of the legal order on democratic Sittlichkeit is asymmetrical: a community’s ethos is called on to support the ongoing legitimation of the legal order, but only after its essential structure has been determined. The hermeneutic self-clarification of democratic Sittlichkeit does not operate at the basic level of justification, and while it has its place in animating the process of self-legislation, it does not contribute to determining the fundamental shape or meaning of that enterprise.9 For Habermas, this is simply a consequence of postmetaphysical thinking: substantive moral norms cannot be called on to directly justify the legal order, and appeals to forms of ethical life do not provide a rational basis for justifying it. And so the limited role of hermeneutic self-clarification and the supporting function delegated to democratic Sittlichkeit will have to do. Critics may also point out that while Habermas sees the legitimacy of the lawmaking process as depending on the support of a democratic ethos, he has comparatively little to say about how to cultivate such an ethos.10 But he may just see this as another consequence of postmetaphysical thinking, as philosophers are not in a privileged position to advise cultures on how to keep their civic life vibrant, and the conditions for such an ethos cannot be legislated or administered (RS, 385). Moreover, Habermas does not see this point about the dependence of his theory upon a democratic ethos oriented toward deliberation and the common good as upsetting his order of justification:



Proceduralism and Functionalism [T]he stability of any democratic process depends on the context of a liberal political culture and on the value orientations of a population that is already accustomed to the use of political freedom. Such a reading of the democratic ethos would not challenge the priority of the Right over the Good. In the order of justification, it is still the other way around: The political ethos of a democratic community is designed for complementing the legal implementation of constitutional principles with a shared cultural form of life that meets certain cognitive and motivational requirements.11

But this will not do as a response to the problem that Peters and Cohen raise—namely, that Habermas’s order of justification itself is the problem, as it does not capture the substantive basis upon which judgments about legitimacy rest. The relationship between the right and the good is not the main issue here, but rather whether Habermas’s reconstructive justification for the framework of democratic constitutionalism is capable of capturing what it is that illuminates it as a worthwhile human practice. This problem is not just one of the separation of law from ethical life, but the separation of the justification of the legal order from substantive norms altogether. According to this line of thought, Habermas’s justification for democratic constitutionalism falls short on account of the fact that its formality causes it to be disconnected from ordinary human reason that is oriented toward substantive norms as grounds for taking something to be just or legitimate. To this extent, Habermas fails to provide a reasonable framework for justifying democratic constitutionalism.12

C. Procedure and Substance, Again The line of thought that animated the previous few chapters is that Habermas’s discourse theory of law and democracy can be seen as providing a stronger normative basis for justification than Rawls’s freestanding theory, which I argued finds itself buffeted between a quasi-descriptive version of itself and a moral-foundational one. Unsurprisingly, Rawlsians like Cohen do not see matters that way, but the reasons Cohen adduces for seeing a stronger normative basis for justification in Rawls are revealing, especially in light of his argument against proceduralism. He writes: “In general terms, Habermas’s account is insufficiently explicit about the normative substance of radical democracy, in part because he seeks to found it on a general theory of human reason rather than the political values associated with democracy.”13 Cohen sees a Rawlsian variety of deliberative democracy as plainly superior in this regard, since it locates its normative basis in substantive conceptions of persons as free and equal and therefore

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appeals directly to the political values that we tend to see the democratic process as promoting and embodying.14 Now, if my argument in Chapter 3 is correct, then it is a mistake to see an appeal to political values in Rawls’s sense as providing a firm normative basis for justification, but Cohen’s point against Habermas still stands. It shows that Habermas may in fact be vulnerable to objections similar to the ones that dogged Rawls’s enterprise: given Habermas’s very clear rejection of natural law approaches, he cannot be faithfully interpreted in a moral-foundational way, as Dworkin and Larmore try to interpret Rawls, but he is subject to a similar pressure when confronted by a critical interpretation that reads him as providing what amounts to a functional explanation for the basic features of democratic constitutionalism, which is normative only in a relatively weak sense associated with the demands of rationality, rather than in a stronger sense associated with a moral imperative. Habermas’s account of rights and democracy claims to capture some basic moral intuitions associated with these concepts: that human beings are free and equal, that justice requires that they have an equal voice in the public affairs of their community, that they have interests that they are entitled to protect and have protected, and therefore that there are moral reasons for regarding them as bearers of rights. But these emphatically moral intuitions do not inform the justification of the system of rights and democracy in a foundational way. Now, it would be misleading to say that Habermas provides only a functional explanation for the existence of the system of rights and democracy, since they result from institutionalizing the discourse principle, which is certainly normative. So, in the first instance, legal rights for Habermas have a normative basis, but not a specifically moral one. The story is somewhat more complicated here, since, for Habermas, basic human rights are distinct from other legal regulations by virtue of being supported primarily by moral arguments about what is equally good for everyone. However, the basic idea of a legal right in particular, and the democratic legal order in general, is justified by the normative presuppositions of communicative reason and the functional necessities of modern law, even though specific portions of the legal order may be subsequently supported by moral (or ethical) arguments. Although I have been dwelling on what many see as the problematic aspects of this feature of Habermas’s thought, we need only recall our discussion in Chapter 4 to realize that he sees it as a great virtue of his approach: it avoids metaphysics by not depending on rational intuitionism or natural rights, or any metaphysical or prepolitical account of the human subject,



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and yet it provides a normative basis for the justification of democratic constitutionalism that can withstand the withering scrutiny of objectivating approaches from the social sciences. But now we have to face the possibility that there is a high price to pay for these virtues. We have already been examining one consequence: the materials that Habermas uses to create a normative basis for the system of rights justify those procedural features of the constitutional state that make legitimate democratic practice possible, and critics charge that this justification is oddly disconnected from intuitions that normally inform a commitment to basic rights and democracy, and illuminate them as worthwhile practices. As Jon Mahoney puts it: “[We] don’t regard others as bearers of moral rights, if we do at all, merely because doing so makes certain forms of (albeit legitimate) democratic practice possible.”15 At bottom, this is a complaint on behalf of substantive political philosophy and as such can be expressed from a number of theoretical orientations: Rawlsians can join with communitarians and Hegelians to argue that the political and legal order should be justified on substantive grounds, be they political values (Rawls, Cohen) or a democratic ethos (Wellmer, Bernstein); more orthodox Kantians may argue that the system of rights should be justified through a more straightforward appeal to deontological norms linked to a conception of the morally autonomous subject (Mahoney).16

2. functionalism and legal positivism The other concern relating to Habermas’s justificatory strategy in Between Facts and Norms pertains to the legal positivism associated with his functional explanation of the legal form. As we have seen, Habermas’s elaboration of democratic constitutionalism takes the legal form and the conception of individual legal rights connected to it as given. His constitutional order does not presuppose moral rights, although legal rights are a consequence of it. “The concept of human rights does not have its origin in morality, but rather bears the imprint of the modern concept of individual liberties, hence of a specifically juridical concept. Human rights are juridical by their very nature” (IO, 190). Certain legal rights may be deemed valid from the moral point of view, and specific aspects of the lawmaking activities of democratic citizens may similarly be validated or criticized from the moral point of view, but the justification of the system of rights that resides in the core of the constitutional state is not subject to a moral justification, on Habermas’s account. This leads Mahoney to comment as follows:

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Proceduralism and Functionalism To raise a claim concerning a law, policy or act of legislation is not, however, to raise a claims about the foundations of a legitimate democratic state, but, rather, to raise a claim that already presupposes the non-moral foundations of such a state. In this regard it is arguable that in his attempt to avoid subordinating law to morality, Habermas in fact subordinates morality to law in at least one respect: morality can constrain intra-legal disputes but not disputes concerning the foundation for the legal order as such.17

Habermas’s argument does imply that the normative structure of the constitutional state is fixed by the nature of modern rationality and the basic functional demands for social integration in modern societies. Once that is established, discourses of all sorts—including moral and ethical-political discourses—carried out by actual persons determine the particular shape of the legal community in question. But we should ask at this point whether we think it meaningful to deliberate about the basic normative structure of the legal order itself: can there be reasonable disagreements about what kind of legal community we should have? Habermas’s argument would suggest that there cannot. His strategy for defending this point is to contend that anyone who wants to question the positive, individualistic, rights-based nature of the modern legal form is actually arguing for the replacement of something with no functional alternatives. He thus shifts the burden of proof back onto the objector: However, if the critique targets the concept of rights itself, then the discussion shifts to another level. Then the opponent must propose either an alternative to law . . . or an alternative concept of law. I have no problem with this type of questioning, since I am not proposing a normative justification for law as such. We are not under an obligation to regulate our living together by means of positive law. A meaningful discussion can get underway, though, after the alternatives have been stated with sufficient precision. I consider it sufficient to provide a functional explanation for why it is advisable or prudent to prefer orders of positive law[.] . . . I see no functional equivalent for this way of stabilizing behavioral expectations (i.e., through equally distributed individual rights). (RS, 411–12)

This sounds eminently reasonable; Habermas presents the issue as if, in order to disagree with him, one would have to offer up something like a retrograde Aristotelian or Thomist version of the legal community, or a Marxian “withering of the state” thesis, and make it plausible for complex, modern societies. And the prospects for doing so look dim. But the alternatives are not necessarily so extreme. One can certainly imagine variations on the model of a legal community that would be less individualistically



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oriented, without rejecting the notion of rights as such, or for that matter, would be more explicitly individualist in orientation. One might think of Charles Taylor’s “Liberalism 2” as articulated in his essay “The Politics of Recognition” in this regard.18 Liberalism 2 acknowledges that recognition is “a vital human need,”19 one that is not fulfilled merely by recognizing people as autonomous, rights-bearing legal subjects, but also requires esteeming them as complete persons, whose cultural identities have value and worth. Taylor contrasts this to “Liberalism 1,” which has a rock-bottom commitment to individual rights and takes this commitment to necessitate neutrality with regard to the flourishing or stagnation of cultures within the legal community. Since Liberalism 2’s vision of the legal community is connected to a conception of the person, not just as a legal person but also as an ethical person, in Habermas’s terms, the legal system would generate its legitimacy by serving the needs of the consociates that compose it, in part by acknowledging the cultural worth of its citizens and promoting the survival and flourishing of the various fragile forms of cultural identity within the legal community. Since the legal order under Liberalism 2 would consider the forms of recognition associated with the ethical-culture dimension of personhood as at least comparable to the forms of recognition associated with the autonomous moral and legal individual, it may, at times, be permissible to promote cultural values at the expense of individual rights,20 and the legal order will find a place for group rights along with individual ones.21 In his response to Taylor’s essay, Habermas argues that Liberalism 1, with its fixation on individual liberties, is blind to the internal connection between private and public autonomy, how this connection shows the way in which struggles for recognition contribute to the realization of the system of rights, and therefore how a democratic interpretation of liberalism need not be as blind to cultural difference as Taylor thinks. More fundamentally, though, Habermas argues that the form of law to a large extent fixes the terms of this debate: collective goals are allowed to operate within a legal framework defined by individual rights (IO, 217). According to Habermas, Taylor, who imagines claims of cultural survival and group rights to compete on the same plane with individual rights, “calls into question the individualistic core of modern freedom” (IO, 205). But that is a serious objection only if the meaning of modern freedom is fixed by modern rationality’s normative demands and the functionally indispensable features of modern law. This does appear to be Habermas’s position, but

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it looks unsatisfactory. We might agree with him that certain visions of the legal community (for example, premodern Thomism or utopian Marxism) do not warrant attention until someone produces a compelling argument for their plausibility under present social conditions. But Taylor’s vision of the legal community, while perhaps revisionary, does not appear to be one that can be dismissed simply on functional grounds. At any rate, this is an argument that must be made; it will not do just to say that the burden is on the objector.22 The point here is not to argue that Taylor’s vision of the legal community is desirable, merely that it seems premature to dismiss it on functional grounds.23

3. the rational basis of the democratic legal order In order to begin answering the criticisms from the previous two sections, we need to get a sense of how functional an explanation Habermas is offering for the procedural democratic legal order, and this will point us toward a rebuttal to the critique of Habermas’s proceduralism. Now, if Habermas is offering only a functional defense of the democratic legal order, then he has at best a shaky justification for dismissing versions of the legal community grounded in more substantive conceptions of the moral or ethical person. But, of course, Habermas’s argument is certainly more than a merely functional explanation. This becomes apparent by looking at an account of the foundations of a legal order that is avowedly descriptive, like H. L. A. Hart’s legal positivism. There are some surface similarities between Habermas’s system of rights and what Hart calls “the minimum content of natural law,” as Hart argues that there are certain functional requirements placed on legal systems by more or less universal features of the human condition (similar to Hume’s circumstances of justice), such as vulnerability, limited scarcity, limited altruism and understanding, and approximate equality of power. Since a legal system needs to make human sociality possible given these circumstances, it must take on certain features that have moral content: guaranties for personal security, some degree of formal equality, norms for voluntary transactions, actionability of legal rights, and so forth.24 These functional requirements may easily be translated into moral terms, like rights to life and property, equality under the law, due process, and so on. Hart is clear, though, that this does not show that the legal system is founded on moral norms—these requirements are a “natural necessity,” not a moral imperative.25 Hart claims that his project is



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descriptive and non-normative, because he holds that legal systems cannot be analyzed in teleological terms. Although there is some minimal sense in which we can say that the point of a legal system is to provide order, law as such does not aim at any particular kind of order: “I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of conduct.”26 The first main difference between Hart and Habermas is that Hart analyzes law as it is functionally required for any society of minimal social complexity, whereas Habermas analyzes the demands on modern societies, which include a demand not just for order but also for reflexively legitimate (that is, rationally acceptable to those affected) order. In this sense, I believe that Habermas would agree with Lon Fuller, against Hart, that modern law has a telic structure that aims not just at order but at “good order”—that is, order that serves human needs in a more robust sense than the one suggested by Hart.27 For Habermas, the modern legal order has the following telic structure: it is an instrument for organizing social life on the basis of deliberatively achieved mutual understanding. This conception of politics is clearly a normative one. Moreover, it is an optional normative account, which is to say that we might look at our politics this way, but that there are other viable ways to interpret it. Habermas does not claim that it follows from any conception of human nature that a deliberative politics of mutual understanding is best suited to our nature as, say, political animals. And our actual politics may not come very close to resembling this deliberative ideal. Arguably, democratic politics can at best be described as the domesticated struggle for power among self-interested groups, and it is futile to see it as aiming for anything more.28 This may mean that Habermas ought not to be allowed simply to help himself to a conception of democracy as deliberative self-government, since the reconstructive enterprise is, after all, supposed to draw only on idealizations that are actually present in human practices. And if an interpretation of our politics as a modus vivendi, balance of power and interests that secures peace, “fits” our politics more accurately than Habermas’s deliberative conception, then the latter ought not to be able to get a normative foothold on political practices.29 While there is no clear way to answer this point in Habermas’s philosophy, it does not require a direct refutation. He recognizes the empirical possibility that the resources of civic solidarity and an orientation to the common good that both constitute and make possible deliberations in the public sphere will dry up, and radical democracy will not be able to reproduce itself (CES,

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188; BFN, xlii–xliii). Until that time, though, any normative perspective on politics whatsoever requires us to pick out those features of our political practice that do point beyond the strategic orientation of modus vivendi politics and reconstruct them in a way that at least does not distort those practices, even if it is a selective reconstruction of present political practices. Critics therefore misrepresent Habermas’s argument (and indeed, Habermas may be guilty of misrepresenting it, himself) to the extent that they emphasize the purely functional nature of his argument for the legal form. The point of the argument is not to claim that law is necessary for order, and positive law is necessary for order in modernity, but to show that the legal form—connected to the notion of individual legal rights and a procedural, democratic mode of legitimation—is necessary for communicatively organized social life: The separation of morality and legality effected in modern law brings with it the problem that the domain of legality as a whole stands in need of practical justification[.] . . . Precisely the posttraditional structure of legal consciousness sharpens the problem of justification into a question of principle that is shifted to the foundations but not thereby made to disappear. The catalog of basic rights contained in bourgeois constitutions, insofar as they are formally set down, together with the principle of sovereignty of the people, which ties the competence to make law to the understanding of democratic will-formation, are expressions of this justification that has become structurally necessary. (TCA 1, 261)

Under modern conditions of the separation of morality and legality, procedures for determining legitimacy of laws shift away from evaluating their fidelity to traditional norms and toward determining whether they are the product of a democratic legal system that is itself legitimate. So, individual rights and democracy are, like the legal form itself, normatively called for by the development of post-traditional consciousness. This shows how we might begin to make plausible the notion that a system of rights and the democratic principle are justified because they make a mode of social integration based on reasoned mutual understanding possible, and at bottom, all of the critics of Habermas’s proceduralism and functionalism that I have been discussing consider this to be a dubious proposition. We need to be more precise about the issues under discussion. Habermas’s procedural conception of law and democracy is sometimes thought to imply pure procedural legitimacy—that is, the idea that any norm, policy, or piece of legislation is legitimate insofar as it is adopted in accordance with the democratic process. But Habermas is consistently



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careful to say that a legitimate democratic practice will offer citizens only the rational expectation that such norms and policies will prove rationally acceptable. Discourse theory does contend that no norm may claim legitimacy that has not been redeemed through actual discourses, or a democratic process that models actual discourse in various ways (for example, hearings and parliamentary debates) and feeds off of the results of actual discourses in the public sphere. But as Habermas emphasizes in his debate with Rawls, an appropriately modest postmetaphysical theory will not prejudge the results of these discourses, and, as I said earlier, this is both a matter of deference to the autonomy of democratic citizens and a recognition that actual discourses of application are necessary in order to put abstract moral norms into contact with concrete legal norms and policies. The point worth emphasizing here is that actual discourses do deal with substantive matters—for example, arguments about whether norms and policies are morally right, ethically good, efficient, and prudent, and (to the extent that they are not) whether the expectation of rational acceptability has been compromised to such a degree that the norm in question should no longer be regarded as legitimate. So, if the critics of Habermas’s proceduralism and functionalism are making an interesting critical point, they must consider his justification of the structure of the democratic legal order itself, and especially the system of basic rights, to be dubious. As we have seen, Habermas does argue that the legal order has a rational and functional basis, but not immediately a moral or ethical one. The first question that we need to tackle is whether this is a coherent justificatory strategy, as Cohen’s argument in “Pluralism and Proceduralism” suggests that it is not. But we can lay this criticism to rest for the reasons just discussed. What Cohen points out is that procedures cannot be justified without reference to the substantive norms or values that they promote. Habermas would be vulnerable to this objection if he were offering only a functional explanation, but as we have seen, his reconstruction of democratic procedural orders draws on the telic structure of politics as the deliberative organization of social life on the basis of mutual understanding, and this is assumed to be a way of doing things that is preferable to the alternative of noncommunicative social organization. To this extent, Habermas’s theory is not purely formal, but refers to a “dogmatic core” containing the idea of human beings being free only when they author the norms they obey (BFN, 445–46).30 But Habermas’s critics still contend that the structure of rights and popular sovereignty warrant a more emphatic justification. The next ques-

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tion that we have to consider, therefore, is what the relevant alternatives to Habermas’s mode of justification are. The critics we have been discussing all contend that the democratic legal system ought to be justified on either a substantive moral or an ethical basis. Their further suggestion is that such a basis is normatively stronger and better captures the intuitions that illuminate democratic constitutionalism as an institutional practice worthy of being committed to. Habermas’s conception looks antiseptic to them. To be sure, there remain many philosophers and political theorists who see their preferred version of democracy as justified on the basis of substantive moral and ethical theories, connected to substantive conceptions of the human subject and the human good. Both Rawls and Habermas, however, reject such strategies as being inappropriate for societies shot through with reasonable disagreements about the nature of the human subject and the human good, and too metaphysical on account of their dependence on such conceptions to be philosophically viable. Rawls emphasizes the former argument and Habermas the latter, but they are basically on common ground here. The Rawlsian option of resting the foundations of the democratic legal order on political values that are accepted by all in terms of their own private comprehensive doctrine is one that I have argued is insufficiently normative and intersubjective—the meaning of the political values is too unfixed, and Rawls’s method does not provide a genuinely public, shared platform for justification. Thus, it might be tempting to endorse Habermas’s mode of justification by default. But we still have to deal with the potentially damaging allegation that Habermas’s rational-functional justification bears too little resemblance to the ordinary way in which participants deliberate about the legitimacy of rights and democratic procedures, since a reconstruction with normative implications has to be faithful to the structure of discursive deliberations. When we are considering whether a specific legal right is justified, it is no doubt true that we conclude in deliberations that it either is, or is not, on the basis of moral or ethical arguments. But it is important to realize that Habermas has no quarrel with this idea: we may determine that a given legal right is justified either because all human beings are entitled to the protection it provides, or because it is good for our group to have it. Arguments about whether persons ought to be recognized as bearers of certain kinds of basic human rights are certainly moral arguments on Habermas’s model, for there is no doubt that he sees the basic categories of human rights as justified from a moral point of view that overshoots any positive legal order. So when critics remark that Habermas’s justification of



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rights misses its mark because it is unconnected to the moral reasons about how we think human subjects deserve to be treated, we need to realize that the reconstruction of democratic legal orders is intended to justify not so much the idea of basic rights, as such, but the democratic legal order as a whole, the framework through which individual rights are articulated. For that matter, if Habermas’s reconstructive argument were intended to show solely that we ought to have democracy and some categories of basic legal rights, it would be of less interest than it is, for everyone, of course, agrees with that much. And we do not need an argument like Habermas’s to know that human beings should not be subject to torture or wrongful imprisonment, or similar serious moral harms.31 Moral discourses suffice to answer questions like those, and questions of whether, for example, persons ought to have rights to free expression and the exercise of their religion, or whether it is fair to extend voting rights to some citizens and not others. A combination of moral, ethical, and pragmatic discourses, and legal discourses of application in the course of judicial review, serve to fill out the concrete shape that the system of rights takes. So what contribution does the reconstruction of the democratic legal order make to our normative understanding of it? Beyond the rather academic question about the precise rational grounds upon which popular sovereignty and basic legal rights are justified, it should be seen as a normative account of what the meaning of an ongoing enterprise should be for us and how we ought to think of the rights that we mutually recognize one another as bearing. This contribution is made mostly by Habermas’s proceduralist paradigm of law, which characterizes in a more determinate manner the shape that the legal form takes when seen through the lens of the reconstruction of democratic legal orders. As Kenneth Baynes describes it: Within such a “procedural paradigm,” rights are conceived not as a determinate solution to a specific set of problems but as an important element within a model of constitutionalism, that is, as one (but only one) central means by which a modern democracy is able to learn by responding through constitutional change to the varying problems that confront it.32

Habermas contends that understanding democratic law without tying it to the substantive conceptions of person and society made use of by liberal and welfare state paradigms shows how rights enable democracy instead of competing with it, or undermining it. The point that a politics fixated on the concept of individual rights may have “deadening effects . . . on spontaneous political action” has often been made in recent decades.33 Habermas’s conception of law and democracy can be read as an attempt to

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solve this problem (at a conceptual level, at least) without jettisoning the concept of rights, as such. For example, feminist theorists whom Habermas (and Baynes, in his discussion of Wendy Brown’s work) is keen to accommodate have often expressed the concern that rights have reifying effects in addition to their emancipatory ones, by sealing off a sphere of private autonomy, keeping women subordinated in private life, and generally treating subjects as clients whose needs and interests are presupposed by the system of rights. When paternalistically imposed, rights threaten to normalize their subjects. The liberal and welfare state paradigms of law, while opposed insofar as the former is fixated on formal negative liberties and the latter on material equality, share an essential flaw according to Habermas: they both see rights as a kind of entitlement. According to the liberal model the entitlements have a prepolitical character, while according to the welfare-state model they are granted to subjects by the state. Against this, Habermas writes: Rights can be “enjoyed” only insofar as one exercises them. Moreover, individual self-determination manifests itself in the exercise of those rights derived from legitimately produced norms. For this reason the equal distribution of rights cannot be detached from the public autonomy that enfranchised citizens can exercise only in common, by taking part in the practice of legislation. (BFN, 419)

Models of the legal order that miss the internal connection between the system of rights and democracy fail to capture how citizens contribute to their own emancipation. The proceduralist paradigm, on the other hand, conceives of rights as the sort of thing that protect needs that persons have a voice in articulating (as opposed to treating them as given and prepolitical), and this serves to counteract the reifying and normalizing tendencies that result from depoliticized models of law. Habermas’s proceduralist model of law aims to reveal how rights empower while they constrain. Now, that a political regime of rights may have distorting effects when participants are not allowed to articulate their own needs is a point that has been argued for persuasively by a number of theorists other than Habermas.34 What is innovative in his account is the way that he links the failure of liberal and welfare state paradigms not to a moral or ethical deficit, or a flawed account of the human subject, but to a failure to recognize the rationalizing character of modern law itself. This shows us how the reconstruction of democratic legal orders has something to contribute to the justification of that institutional practice beyond the relatively uncontroversial claim that the combination of human rights and democracy form a normatively desirable institutional complex. Now the decisive question



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remains as to whether this is a good way to make this point.35 There are a number of avenues that Habermas might pursue, which are not mutually incompatible, but neither are they, in my view, all equally persuasive. The most expedient (if successful) argument that Habermas makes is the functional one: conceptions of the legal order that locate their justification in an account of the ethically good or human flourishing are functionally incompatible with modern societies. This argument is based on a series of plausible claims—namely, that law needs to have a certain changeability and flexibility in order to fulfill its steering functions, which means that it must be positive and enacted, and not constrained by a cumbersome ethos, and that it therefore refers to individual legal persons from the beginning, making individual rights essential to the legal form. Above, I argued that while certain accounts of the legal community can be eliminated in this way, Habermas attempts to get too much mileage out of these functional considerations, as it is not apparent that competing conceptions of the legal community (for example, Taylor’s Liberalism 2 and classical liberalism) can be dismissed quite so easily. At the very least, the burden of proof here should not lie so squarely on Habermas’s opponents, unless they have a genuinely unorthodox version of the legal community in mind. We therefore require further arguments that would show more definitively that more substantial conceptions of the legal form are actually unworkable, or failing that, normative considerations for why we ought instead to adopt the perspective of Habermas’s reconstructive argument. Second, Habermas often makes the metaphilosophical point, which we examined in Chapter 4, that his rational-functional argument is the only viable postmetaphysical path for justifying the democratic legal order as a whole and providing a general standard of legitimacy. This argument is based on the contention that postmetaphysical reason is not so directly prescriptive as to be able to translate abstract moral principles into a concrete blueprint for the legal order of modern, complex societies. While persuasive, this argument is not decisive. It is persuasive when we survey, along with Rawls, the pervasive difficulties involved in offering a comprehensive account of the moral basis of the political order that is compatible with the contractualist intuition that such an account should be able to meet with the agreement of all reasonable people. It is also persuasive when we examine, against Rawls, the difficulties that he has in generating a moral account of the basic structure of society that is sufficiently independent of comprehensive moralities to satisfy this contractualist intuition. Nevertheless, we still need some independent reason for thinking that Habermas’s reconstructive

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approach succeeds where Rawlsian and natural law approaches fail, for the critique of Habermas’s proceduralism and functionalism contends that his rational-functional justification puts too much distance between the reconstructive justification and the moral sources that make such justifications compelling from the participant’s point of view. This is just another way of putting an obvious point: the fact that Habermas’s theory avoids the pitfalls of Rawls’s does not show that his is true or better, only that it is different. If the critique of proceduralism and functionalism is damaging to Habermas, it may simply be that either postmetaphysical normative political philosophy is not a viable enterprise, or that we need an entirely new way of doing it, neither Rawlsian nor Habermasian. Just as Rawls has difficulty singling out his particular conception of justice as fairness based on the premises of his argument (that is, reflective equilibrium and political constructivism), so too for Habermas, one of the problems that comes up in the critique of his proceduralism and functionalism is that an argument based on a conception of procedural rationality and functional considerations may not successfully single out his particular conception of individual rights and democracy, or his preferred legal paradigm. Habermas has, in the past, made the developmentalist argument that the internal, rationally reconstructable logic of moral development singles out these procedural conceptions of rights, democracy, and law. As I mentioned in Chapter 4, it is not clear how strongly Habermas would endorse these arguments today, and the trend in his thought seems to be moving away from relying on them. But while it may not be prudent for Habermas to link his theory to the fate of Piaget’s and Kohlberg’s strong ontogenetic claims, it seems that we do his argument a disservice by emphasizing the following points: (a) that the necessity of modern law is purely contingent and functional, and (b) that the commitment to autonomy which underlies the argument is, at the end of the day, “dogmatic.” For, while these moves reduce Habermas’s justificatory burdens, they also leave him open to the objection that his premises are not strong enough to draw the conclusions he wants: based on functional and dogmatic premises, it is difficult to make the case that Habermas’s system of rights and his proceduralist paradigm of law are normatively singled out among competing conceptions of the legal order and the place of individual rights within it. But Habermas does still want to maintain that the development of modern moral consciousness— or to use more recent terminology, the post-traditional mode of justification captured by the discourse principle—has a rationally reconstructable logic. For persons to interact with one another as reasonable people who



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countenance no metaphysical certainties that insulate social norms from criticism, who acknowledge that the justification of a norm does not determine its application, and who therefore treat the discourse principle as authoritative, the proceduralist paradigm of law and the system of rights will be normatively singled out. For, once we accept that particular laws, norms, policies, and principles must be justified in actual discourses within which, on the one hand, we are constrained to respect the autonomy of our interlocutors, but which, on the other, are not at the outset structured by substantive moral principles, we are bound to accept a conception of law that is positive (that is, whose validity is not bound to prepolitical moral principles, or substantive conceptions of persons and society) and that is legitimated by the actual discourses modeled in the democratic legislative process. This is not a direct moral justification of the system of rights and the proceduralist paradigm, but it does suggest that they are the results of a learning process of which the development of modern moral consciousness is one part; and thus there remains in Habermas an argument for positive law and individual rights that is tied to a social evolutionary perspective, and goes beyond mere appeals to their functionality. It might be thought that refurbishing Habermas’s developmentalist arguments, helpful though they might be in singling out his preferred conceptions of law and democracy, offer too “theoretical” a justification for them—that is, one that is still too distant from the participant’s perspective to satisfy the critics of his proceduralism and functionalism. Finally, then, it is left to us to deny what those critics contend: that it is implausible from the participant’s perspective to view the legal order as having a rational, but not a specifically moral or ethical, foundation. This can be done by appealing to some considerations that are in some ways Rawls-like in their emphasis on the persistence of reasonable disagreement: citizens who share a commitment to a society regulated through mutual understanding rather than through any noncommunicative means should be reflectively aware that while their common human reason gives them a shared framework through which to achieve discursive mutual understanding (as Habermas emphasizes), the pluralism of their society makes any consensus on substantive moral and ethical conceptions of the person fragile at best. If it can be demonstrated, as I have tried to do in Chapter 3, that cobbling together a framework for regulating the basic structure of society on the basis of a moral (but abstract, freestanding) conception of person and society, as Rawls tries to do, will not result in a framework that is sufficiently normative or constraining, then it makes sense for citizens to make a further

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abstractive move. Given the implausibility of a substantive consensus, it makes sense for citizens, concerned to establish a common framework for the communicative regulation of their social lives, to see the system of rights as legitimating itself by continually enabling the possibility of a rational social life based on mutual understanding, and to see it as justified because it furnishes that possibility. As in Rawls, this depends on the reasonableness of citizens and their willingness to make use of a public framework of justification when giving shape to their social lives; only here reasonableness is not defined in substantive terms, but in the willingness to adopt a shared perspective, to orient oneself to the common good. The only substantive elements are the commitment to a rational, communicative form of life as opposed to the alternative, and the legal medium, itself. The idea here is that the possibility of a rational, communicatively integrated political community depends on seeing the legal community as consisting of rational persons oriented around a shared network of validity claims, but not as consisting of moral or ethical persons—at least not in the first instance.

4. the system of rights, the proceduralist paradigm, and their relationship to positive constitutional orders It is important here to realize that Habermas’s reconstruction of the democratic legal order does not claim to supply a shared framework for political justification, as does Rawlsian container theory, as the system of rights does not represent a concrete legal order but rather a series of “unsaturated” placeholders that need to be filled in by particular legal communities. The reconstruction of democratic orders provides the framework for constructing such a framework, if you will. So, the reconstruction itself does not provide the citizens with a shared perspective. This is why constitutionalism has become an increasingly important element in Habermas’s political philosophy. In recent years, he has written suggestively about the constitution (and not the moral point of view) as providing the appropriate perspective for the public use of reason within the legal community: “Like any other communicative practice, constitutional law-making has a performative meaning. It provides a normative perspective from which later generations can critically appropriate the constitutional mission and its history.”36 The viability of this shared perspective has a contingent basis. As rational persons, we are always capable of relating to each other through



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the network of validity claims presupposed in any linguistically structured form of life, but we can relate to each other as legal consociates only on the basis of the nontrivial assumption that we are all in it together, that our fates are linked as a particular community that inherits a particular constitutional history. For while this relation is less demanding than a moral one, whereby we would have to relate to one another in terms of reasons that all rational persons could share (as in Kant’s kingdom of ends), or an ethical one, whereby we relate to one another according to the terms of a thick, taken-for-granted cultural bond, it nevertheless depends on the commitment to a common framework for the justification of coercive power. This framework is not given by reason alone, or by some combination of reason and the functional demands of social integration in modernity, but can be given a recognizable shape only by a particular constitutional text and history. In order to sustain the commitment to a communicative form of political life, citizens must be oriented not just to the demands of discursive rationality but also to a particular concretization of those demands. Whoever bases her judgment today on the normative expectation of complete inclusion and mutual recognition, as well as one the expectation of equal opportunities for utilizing equal rights, must assume that she can find these standards by reasonably appropriating the constitution and its history of interpretation. The descendents can learn from past mistakes only if they are “in the same boat” as their forebears. They must impute to all the previous generations the same intention of creating and expanding the bases for a voluntary association of citizens who make their own laws.37

Rawls and Habermas both share the project of providing a public framework that citizens of a political community can take up when engaging in the public use of reason for the purposes of justification or criticism. The establishment of such a framework is not a simple matter for modern persons who may no longer take a framework of strong traditions for granted. Rawls holds out the hope that we might be able to avail ourselves of a constructed perspective of justice for these purposes, which reasonable people could be brought to share in spite of their other differences. Although I have argued that this procedure fails to generate a perspective that is genuinely public and authoritative, Rawls too recognizes that the perspective would have to be concretized in terms of a constitutional order, for the notions of person and society that he appeals to in order to construct the framework of justice are, despite being substantive, too indeterminate in the absence of a positive legal order; hence the necessity of moving to stages of constitution-making and legislation after we have selected a con-

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ception of justice in the original position. Habermas can be seen as making good on some of the deficits that we find in Rawls by locating the shared framework at a higher level of abstraction: discursive rationality as opposed to substantively moral conceptions of person and society. Although the resources that Habermas makes use of are not, in the first place, as emphatically normative as the ones Rawls attempts to appropriate, I have defended Habermas against the charge that he lapses into a kind of descriptive functionalism, or that he should draw more directly on moral norms. I have suggested that we reinterpret reasonableness in terms of the commitment to a rational practice of lawmaking. A philosophical reconstruction shows us that we are constrained to give ourselves a scheme of rights that fits a set of functionally defined categories of public and private freedom, and that we threaten to distort our capacity to give ourselves the law if we interpret those rights as defined in a natural law manner against the state or as goods gifted to us by the state in order for us to make use of our freedom. But the framework can be defined only in terms of the common commitment to a particular positive constitutional order. The commitment to this particular order is rational only if I have the expectation that my consociates and I understand ourselves as being constrained in the same way—that is, if we can understand our fellow legal consociates as a community of “constitutional patriots.” According to Habermas’s discourse theory, this expectation can be met without interpreting the constitution as a container, shaped by a pre-given moral or ethical order, within which legitimate politics can take place. But as of yet, we have shown only how Habermas’s theory is dependent upon such an understanding of constitutionalism, not that such an understanding is viable.

chapter seven

Rawls and the Critique of Constitutional Contractarianism

In the previous chapter, I intimated that Rawls’s and Habermas’s theories rely in important ways on the idea of constitutionalism—that is, the idea of a foundational set of legal norms that both enable and constrain a practice of legitimate democratic lawmaking—and hence, that the frameworks of justification they attempt to articulate and justify must be completed, or filled in, as it were, by positive constitutional orders. This chapter begins to develop that line of thought, first by explaining the nature of this dependence in the postmetaphysical paradigm of political philosophy, generally (1). Next, I explore the relationship between Rawls’s political conception of justice and his concept of “constitutional essentials,” considering the possibility that Rawls’s theory can be rehabilitated and respond to the descriptivist critique by seeing his theory of justice as a device for interpreting and guiding the development of a constitutional project (2). Nevertheless, I argue that although the notion of constitutional essentials does important work in Rawls’s thought, his appeal to it again leads to the problem of vacillation between the descriptivist critique and the moral-foundational interpretation that I discussed in Chapter 3, and that leaves him unable to answer the critique of what Frank Michelman calls “constitutional contractarianism” (3).

1. p ostmetaphysical political phil osophy and constitutionalism To avoid being misunderstood, I should explain more carefully why I hold that the theories of “postmetaphysical” philosophers like Rawls and Haber-

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mas are linked to constitutions and constitutionalism in a more integral way than their more “metaphysical” predecessors and contemporaries. This may seem to be an odd claim, particularly in Rawls’s case, as he does not understand himself as a legal theorist in the first instance, and many political philosophers that Rawls would regard as metaphysical or comprehensive theorists, from Aristotle to Dworkin, have devoted much more attention to law and constitutional theory. Yet Rawls and Habermas distinguish themselves from such theorists with their lively sense of philosophy’s limitations and by responding to those limitations by laying out a systematic division of labor between philosophers and citizens. As we have seen, there are differences in the manner that each schematizes this division of labor: for Rawls, the philosopher is charged with mining the moral intuitions of a political culture and working up the most reasonable, most appropriate conception of political justice for that society, whereas private persons are delegated the task of figuring out how the political conception of justice is to be justified by the lights of their own comprehensive doctrine. For Habermas, on the other hand, the philosopher identifies the necessary preconditions for a legitimate democratic politics, but leaves it to the citizens to give concrete shape to their legal community, determining for themselves and according to their particular circumstances what is just, good, and prudent for them. While these differences are significant, it is important to note that both do consider themselves obliged to outline such a division of labor in the first place. Rawls and Habermas recognize the fact of reasonable pluralism: disagreement on matters of principle is symptomatic of the free and public use of reason and therefore not to be regretted, and practical reason is unable to single out a unique set of moral norms for structuring a political society of free equals. For both, the work of citizens takes place on the ground, in historical time, and, as I emphasize in this chapter and the next, through the medium of law. For Rawls, the public justification of the conception of political justice is nurtured, not just by a vaguely defined political culture but also by a legal culture that cultivates a certain reverence for the rule of law, and a constitutional tradition that reveals to citizens through its history how a political conception of justice is instantiated, and what it promises. For Habermas, the system of rights provides not so much a framework for a legitimate democratic politics, as a framework for designing such a framework. The system of rights represents a series of “unsaturated” placeholders that remain loosely defined and without determinate implications for particular instances of legislation prior to being filled in by a specific, positive constitutional order and the constitutional history accompanying it. The



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system of rights becomes meaningful only when connected to particular legal orders and cannot be conceptualized independently of the medium of law. This is why Habermas declares that his project is juridical from the start. The reason that constitutionalism represents a crucial element for Rawls and Habermas emerges when we consider the kind of justifications for positive law that the political/postmetaphysical turn forecloses—namely, the idea that we can justify a specific scheme of moral norms prior to their articulation through discourse or prior to their institutionalization in a positive constitutional order. This does, however, represent the basic order of justification in the modern natural law and social contract traditions. Although more would have to be said to establish this in the case of individual thinkers, the general idea behind these theories (which is perhaps also the intuitive one) is that constitutional norms receive their authority by institutionalizing exogenously determined moral requirements. In natural law, rational intuitions access the content of these exogenous norms, whereas in contractarian thought, a rational, hypothetical agreement sets the basic terms of social interaction. In both cases, positive laws answer to a pre-given scheme of principles that form the container within which legitimate lawmaking is possible. Strategies of this sort are not available to Rawls and Habermas, as the prepolitical or prelegal justification of moral norms cannot, for them, serve as the basis for the rational acceptability of a democratic legal order. For Habermas, this follows from his conception of postmetaphysical reason and its limits and from his deference to the contributions of actual discourse. For Rawls, on the other hand, it stems from his methodological strategy of avoiding controversial philosophical grounds for the political conception of justice. This point is abundantly clear in Habermas, as he repeatedly declares that the functionally necessary medium of modern, positive law is implicated from the very beginning of his rational reconstruction, at the basic level of justification: we do not proceed by determining the norms that ought to govern our political lives and then hit upon law as an efficient (or, as in Kant, morally required) way to institutionalize them. He criticizes Kant’s “subordination of law to morality” as “incompatible with the idea of an autonomy realized in the medium of law itself” (BFN, 120). Put another way, the communicative regulation of social life for modern societies that must contend with various forms of complexity and diversity is not a project that can be sensibly contemplated without the legal medium. For Rawls, on the other hand, it is less clear whether his project should

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be characterized as essentially juridical. At first glance, the four-stage sequence for applying the principles of justice that Rawls describes in Theory (§31) suggests an order of justification akin to a natural law or social contract approach: the principles of justice are specified in the original position, and only once that is done do we raise the veil of ignorance high enough to consider basic social conditions and design a constitution that will protect the equal liberty of all in light of these conditions. “In framing a just constitution I assume that the two principles of justice already chosen define an independent standard of the desired outcome” (TJ, 198/174). The point of constitutional design is to create a legal order that will most effectively instantiate the principles of justice.1 Questions of constitutional design are essentially technical, revolving around the issue of how to meet this independently determined “standard of the desired outcome.” The political philosopher is charged with specifying and articulating an optimally reasonable conception of justice, but possesses no special competence in determining which institutional arrangements would make the conception most efficacious: “These things depend on history and how institutions are to be arranged” (R, 409). Like natural law theorists, Rawls has a container theory of constitutionalism, and the meaning of the constitutional project revolves around institutionalizing predetermined principles. In pointing out this resemblance between Rawls and the natural law approach, I do not mean to make a guilt-by-association argument. I will argue below that this natural law residue creates some real problems for him that appear from within the horizon of his theory. Despite this affinity with natural law, however, Rawls’s project does move entirely at a level that presupposes the medium of law and the notion of a constitutional project, where constitutional texts and histories represent important sources of the moral intuitions that philosophers draw upon to construct the conception of political justice. In the process of constructing and applying justice as fairness, we do not start with a blank slate: the existence of state power and law is presupposed, and we know that the institutions of the basic structure, which we seek to bend toward justice as fairness, already exist in some historically given form.2 Nor should the natural law residue obscure the crucial role that “constitutional essentials” play in providing a transparent basis for public reason. Constitutional essentials are those elements of the political conception of justice that, in order to be effectively enforced, ought to be explicitly enshrined in a written constitution and treated as a matter of constitutional law. In order for the political conception of justice to fulfill its function as a transparent basis for social cooperation, citizens



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need to be in a position to ascertain whether or not the legislative process is operating in accordance with the accepted political conception of justice, and the link that Rawls forges between the abstract principles of justice and constitutional essentials provides this. These aspects of his thought certify his status as a postmetaphysical philosopher by showing how there are some reciprocal relations of justification between political justice and the positive constitutional order, rather than a purely one-sided relation in which exogenously determined requirements of justice govern what law and the legal culture should be like.

2. rawls: constitutional essentials, legitimacy, and transparency In Chapter 3, I argued that Rawls’s political conception of justice encounters a serious difficulty in its attempt to be simultaneously normative and nonmetaphysical. Either the political conception of justice ends up describing a certain projected overlap in the moral-political intuitions of reasonable persons, where the “module” of political justice is embedded in the mutually inscrutable comprehensive doctrines of individual citizens, such that there is (a) no rationally binding, public justification for the preferred political conception of justice as fairness, leading to (b) a serious indeterminacy in its application that undermines it ability to fulfill its desired function as a transparent basis for fair, social cooperation. Or, if we seek to articulate a rationally binding “source” that underwrites the authority and correctness of justice as fairness (or at least the moral intuitions modeled in the original position), we violate the restriction Rawls places on his theory that it be freestanding. There is some reason to hope that turning to constitutional and legal theory might help Rawls alleviate the problems raised in the descriptivist critique, without falling back on any kind of moral-metaphysical foundationalism. With regard to (a): if the “essentials” of a positive constitution can fruitfully be interpreted in light of Rawls’s political conception of justice—for example, if, following Dworkin’s method of constructive interpretation, justice as fairness captures the overall moral contours of a constitutional project and therefore helps us interpret that project in specific hard cases—then acceptance of the political conception of justice supports the rule of law and the values connected to it (such as transparency, predictability, and impartiality), which in itself supplies a fairly compelling

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justification for it. Concerning (b): if the political conception of justice is embedded in a constitutional text and accompanying constitutional history, these elements of positive law render more concrete and transparent just what it is that citizens are actually agreeing to when they agree upon a political conception of justice, making its application more predictable. I will take up both of these lines of defense in turn. In general, both contentions support a line of interpretation of Rawls’s theory that I alluded to at the end of Chapter 3 but deferred consideration of until now, since it is connected to issues in legal theory. According to a “democratic” or civic republican interpretation of Rawls’s work,3 perhaps the best justification for (a) justice as fairness itself, and (b) making use of a procedure (that is, the original position) that models the fundamental conceptions of person and society, is the following: such a conception of justice is an optimally well suited framework for allowing citizens’ political relations to be maximally transparent, cooperative, and mutually beneficial. This perspective on Rawls’s theory connects him most profoundly with the high social contract tradition of Rousseau and Kant—particularly, I think, with Rousseau, who thinks of the general will as constituting a standpoint from which all citizens consider only what is equally in the interest of all, avoiding treating the social order as a means for leveraging their private interest at the expense of anyone else.4 This is illustrated both in the form of the constructivist procedure (the structure of the original position compels the deliberators to consider only fully general interests and prevents them from being able to press for their individual preferences), as well as the content of the two principles (the difference principle makes it impossible to work justifiably for the benefit of oneself without working for the betterment of all).

A. The Rule of Law and Legitimacy From the perspective of legal theory, the criticisms I raised against Rawls in Chapters 1 through 3 have the potential to seem rather arcane. After all, if it can be persuasively argued that justice as fairness is the most reasonable conception of justice for our society, then the real problem for legal theory is how it could effectively be made to discipline the use of coercive political power, shaping the legislative process and guiding the interpretation of law in the adjudicative process. These problems are thorny enough, one might say. It is difficult, after all, to give a consistent account of how impartial adjudication and enforcement of justice are possible at all. From this perspective, questions about the precise normative basis of principles of justice



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are, if not altogether unimportant, best left in philosophy seminar rooms. It is sufficient praise of justice as fairness to point out that it synthesizes certain prominent intuitions of the modern moral worldview and promises to structure society around democratic ideals of mutuality and reciprocity. This can be illustrated by recalling Dworkin’s theory of adjudication: for Dworkin, I argued in Chapter 3, the question of whether a conception of justice that underlies a set of legal principles is correct is actually a secondary concern. The mere fact of having a conception of justice in light of which a constitution could be consistently interpreted supports the Dworkinian value of integrity and, when that conception of justice forms the content of an overlapping consensus, the democratic rule of law. Of course, problems of justification do not simply disappear when we shift to a legal theoretic perspective. The conception of justice must be a reasonable approximation of the true conception of justice, or if one does not like that formulation, it cannot permit clear injustices and must be reasonably complete. But we can use Rawls’s concepts of public reason and overlapping consensus to explain how the people may see themselves as the authors of the laws that bind them (what Rawls calls “full autonomy” [PL, 77]). And we can do this without taxing his theory with questions about why one particular political conception of justice is more justified than its close relatives. If this shift in emphasis seems distorting, we need only recall the importance that Rawls accords to public reason in the final articulation of his theory, even when its content is not specified by any one conception of justice but by a family of liberal conceptions. Public reason, Rawls thinks, is a practice capable of mediating between citizens that hold at least somewhat different concrete conceptions of justice, so long as those conceptions are reasonable, or liberal (PL, 226). While he continues to regard it as an important task for political philosophy to show why one particular conception of justice is more reasonable than its close competitors, the point of Rawls’s political philosophy (in its late form, at any rate) is not so much to answer the question of why justice as fairness is the most appropriate and reasonable conception of justice for us, as to show how consensus at least on a family of conceptions of justice quite like it could legitimate the use of coercive law.

B. The Rule of Law and Transparency In Chapter 3, one of the criticisms that I pressed against Rawls was that his division of labor between private persons and their comprehensive doctrines, on the one hand, and persons in their public role as citizens, on the

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other, led to a certain justificatory deficit: it becomes unclear why persons ought to accept the constructivist argument from the original position, and therefore, why justice as fairness enjoys any normative superiority over other conceptions in the liberal family. But even in my earlier exploration of these issues, that was not the crucial argument against Rawls. For it is always possible for his defenders to contend that those who press such criticisms against him miss the genuinely revolutionary point of Rawlsian political philosophy by chiding him for not fulfilling argumentative burdens that he no longer accepts. But even if, following Laden’s interpretation of Rawls, for example, we accept that justifying Rawls’s political conception of justice through reflective equilibrium amounts to the strongest justification that we are entitled to expect, we should still expect that the conception will serve to normatively constrain our practices. By this I mean that we should still expect justice as fairness to represent a critical standpoint that citizens can adopt when evaluating arguments in terms of public reason, and when determining whether or not certain policies and features of their society are just or unjust. And it should be able to do this, not just in cases of obvious injustice (for we need not have anything resembling a full consensus on political justice for this) but in borderline or hard cases as well. And it was this that I argued Rawls’s theory is ill equipped to do. For there is an important sense in which the political conception of justice is not public, not shared, embedded as it is in our own individual, mutually inscrutable, comprehensive worldviews. It therefore cannot give us grounds for saying that anything is unjust, so long as other reasonable persons within the overlapping consensus think otherwise. Now, it seems plausible to think that these difficulties, too, can be relieved by seeing our political relationship to one another as mediated through a legally institutionalized practice of constitutional interpretation. Rawls sees a certain epistemic dimension to our political relation: we must be in a position to be able to recognize that the basic structure of our society is regulated by the political conception of justice that we endorse. What he calls “the publicity condition” requires not just that citizens “accept and know that others likewise accept” principles of political justice, but also that “the institutions of the basic structure are just (as defined by those principles) and everyone with reason recognizes this” (PL, 66). Why is this important? Rawls’s idea of public reason conceives of “the political relation” between citizens as a justificatory one: citizens must be in a position to offer reasons to one another for the use of coercive law. “For if the basic structure relies on coercive sanctions, however rarely and scrupulously ap-



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plied, the grounds of its institutions should stand up to public scrutiny” (PL, 68). Citizens are able to accept coercive law and other “pervasive influences of the basic structure” when they know that their fellow citizens by and large accept the same, or at any rate a similar, conception of political justice, which effectively shapes the basic structure, especially the political process. Thus, an overlapping consensus gives citizens a general sense of what counts as a reason for the purposes of political justification. Even when citizens do not agree about matters of justice, even when the reasons they offer to one another are not ultimately convincing, they are at least able to recognize one another as offering reasons that are compatible with a reasonable construal of the principles of justice. Constitutionalism enters the picture here when we consider the kinds of resources available to citizens for recognizing the continual operation of the conception of justice in their society and understanding how to evaluate arguments. Rawls writes: “[A] democratic constitution is a principled expression in higher law of the political ideal of a people to govern itself in a certain way. The aim of public reason is to articulate this ideal” (PL, 232). The Supreme Court serves two important functions here: first, it enforces the basic liberties and constitutional essentials in publicly accessible decisions. Second, it offers an “institutional exemplar” of public reason through its written decisions, which use the kinds of principles and values that citizens engaging in public reason ought to appeal to.

3. rawls and constitutional contractarianism This raises the following question: how are we supposed to evaluate the degree to which the basic structure of society complies with the requirements of justice and recognize that we accept a shared conception of justice with our fellow citizens, if we continue to disagree about matters of justice? How are basic liberties to be balanced against one another, how far are they to be extended, and are fair equality of opportunity and distributive justice being satisfied? When we reach a consensus on abstract principles of justice, but then proceed to disagree about specific matters of justice, why should we not conclude that we do not agree on the same conception of justice, after all? Should we not think that our previous agreement about principles merely served to paper over still-pervasive disagreements, which come bursting back onto the scene once we have to make decisions on specific issues?5

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Although these are difficult questions, and it is asking too much for a theory of justice to do away with this anxiety entirely, constitutional design plays an important role for Rawls in relieving it. In Theory, he acknowledges that any given citizen in a well-ordered society knows that his opinions will not always coincide with those of others, since men’s judgments and beliefs are likely to differ especially when their interests are engaged. Therefore secondly, a citizen must decide which constitutional arrangements are just for reconciling conflicting opinions of justice. (TJ, 196/172)

A good constitutional design is one that makes deviations from justice as fairness through the ordinary channels of politics less likely, while acknowledging that no constitution can prevent them all (TJ, 198/173). To put it another way, Rawls approaches the question of constitutional design from the perspective of those who have already reached an agreement on principles of justice and are moving to the more practical question of how to stably institutionalize those principles.6 The question of how best to embed a conception of justice in law is an empirical one, and Rawls’s position on this issue is complex.7 He thinks that the basic liberties should be enshrined in a written constitution that can be enforced against legislative majorities, and he deems judicial review of legislative acts by a constitutional court to be a good way of ensuring that they are enforced. He also holds that formal guaranties of equal protection under the law (for example, something like the equal protection clause in the U.S. Constitution’s 14th Amendment) should be a matter of constitutional law. More controversially, he also charges the constitutional court with enforcing some guaranty that the basic “needs” required to make minimal use of one’s liberty (for example, nourishment, shelter, health, money) are met.8 Altogether, these make up what Rawls calls “constitutional essentials.”9 Interestingly, however, these categories do not exhaust matters of basic justice, which include the demand for a “fully adequate” scheme of liberties, “fair” and not merely formal equality of opportunity, and the satisfaction of the difference principle. Rawls considers it prudent not to tie the enforcement of these matters to fixed and unchanging constitutional principles; better, he thinks, to leave it up to ordinary legislative politics (PL, 228). In other words, he believes that courts are not good institutions for enforcing basic justice in these areas. Constitutional courts are more adept at defining lines of principle and determining whether or not laws cross them (for example, through “tests”). But figuring out how to make the scheme of liberties fully adequate, how to achieve the substantive equality called for



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by fair equality of opportunity, and how to move the overall basic structure of society in line with the (notoriously elusive) difference principle—these are policy questions that require expert knowledge, trial and error, and the subtle balancing of many considerations. It does not seem wise to Rawls to invest the courts with this amount of policy-making power. It is worth noting that nothing essential to Rawls’s theory hangs on any of this, though; this is simply his assessment of the institutional structure that would be most effective in bringing the basic structure of society into compliance with the two principles of justice. Because, as Rawls recognizes, any political system, even one regulated by a reasonable conception of justice, will allow some unjust legislative acts, it would be unrealistic to make legitimacy dependent upon the reasoned acceptance by all citizens of each and every legislative act. Instead, he argues that justice as fairness includes the principle of liberal legitimacy, which is worth quoting once more: [O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in light of principles and ideals common to their human reason. (PL, 136)

A reasonable standard of legitimacy operates by determining whether the political process is structured by the conception of justice our community collectively endorses, not by determining whether individual legislative acts are just or unjust. So long as we are able to recognize that the conception of justice effectively disciplines the ordinary political process, by way of constitutional constraints, we may reasonably accept as legitimate outcomes that are, on our estimation, unjust, even seriously so from time to time. It seems reasonable enough to demand that citizens accept the legitimacy of ordinary policies and laws that they disagree with; as Rawls says: “[I]nsistence on the whole truth in politics is incompatible with democratic citizenship and the idea of legitimate law” (CP, 579). Constitutional democracy institutionalizes the notion of a loyal opposition. Good faith disagreements are an ineradicable element of politics, even in a well-ordered society. All is well, so long as we are jointly committed to the exercise of power in accordance with a set of constitutional essentials that reflect our political conception of justice. But what happens when our disagreements spill over onto constitutional essentials and matters of basic justice themselves? At first glance, it might seem that, in Rawls’s well-ordered society, all such disagreements have been eliminated. But this is implausible: even if we are

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fortunate enough to have a wide and deep overlapping consensus, there are bound to be questions about how to satisfy abstract principles of justice in particular cases. The burdens of judgment alone ensure this. It is true that constitutional controversies would likely be somewhat fewer in number and perhaps less ferociously contested in a society that had a deep and wide overlapping consensus than in one that did not. But clearly, even within an overlapping consensus, there remain any number of extremely important constitutional controversies and matters of basic justice over which there is considerable disagreement. Rawls himself admits (indeed, he takes it to be a virtue of his theory) that a political conception of justice does not settle questions about abortion or school prayer, as public reason may be drawn on for arguments both for and against, which allows justice as fairness to be endorsable for persons with either religious or secular comprehensive doctrines. We could add any number of issues: the limits of police and executive powers, compensation for domestic work, right to die, pornography, workplace democracy, religion in the public sphere, the proper extent of affirmative action, welfare, progressive taxation, estate taxes, the legitimacy of international law, and so on. The extent to which a political conception of justice either settles or narrows the scope of disagreement on public issues pertaining to constitutional essentials and basic justice seems to me entirely contingent, depending on two independent and historically variable factors: (a) the set of issues confronting us at a given time, and (b) the width and depth of the overlapping consensus. With regard to the latter, clearly there would be a significant difference in the scope and contentiousness of disagreements about justice in Rawls’s earlier ideal version of a well-ordered society compared with his later, more “realistic” scenario of a consensus around a “family” of basically liberal conceptions of justice. I am not saying that we ought not to fault a theory of justice, which is after all composed of abstract principles, for not directly solving all pressing and complex political disagreements. Indeed, expecting such a thing from a conception of political justice is quite at odds with Rawls’s thought, which seeks an abstract level of agreement among people who disagree about many other things. But it is important to realize that we are talking about matters of constitutional essentials and basic justice here, not just ordinary legislative politics. Take an example from the latter category such as tort reform. Some of us might have strong opinions about the goodness, rightness, or prudence of this or that proposal for defining corporate liability. But as reasonable citizens, we should accept that appealing to ab-



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stract principles of justice by itself does little to settle disagreements about this, beyond eliminating obviously unjust proposals. Thus, it is perfectly possible that people who are commonly committed to a conception of political justice might nevertheless have sharp disagreements at this level of policy. We should, therefore, accept that the political conception of justice regulates ordinary legislative politics in only a procedural way by defining the framework within which they are conducted. In terms of the principle of liberal legitimacy, we should accept the legitimacy of legislative acts we disagree with, so long as our confidence remains that the political process is structured and constrained by our political conception of justice. But we cannot take the same position with regard to disagreements about constitutional essentials and basic justice; significant and pervasive disagreements at this level have the potential to undermine any rational basis for such confidence. Such controversies normally have to be settled in a “yes or no” manner by either ordinary legislative politics or a constitutional court.10 This means that there will be citizens (that is, the dissenters in these outcomes) who believe that some features of the basic structure of society do not reflect the conception of political justice, as they understand it, perhaps to a serious extent. Do reasonableness and the principle of liberal legitimacy demand of the dissenters that they nevertheless regard as legitimate these purportedly unjust outcomes? When we are talking about serious disagreements at the level of basic justice and constitutional essentials, the conditions under which the principle of liberal legitimacy gains its validity—namely, that political power is being exercised in accordance with a constitution, the essentials of which embody the conception of justice—may no longer be taken for granted. This raises a problem for the position that Michelman calls “constitutional contractarianism”: the view that legitimacy is secured by a background agreement on moral principles that are then embedded in a constitution, which in turn transfers legitimacy to individual outcomes. The problem, simply put, is the following: How can intelligent citizens possibly decide to approve, as rationally acceptable to all who are reasonable, an essential constitutional agreement so much of the actual content of which at the business end they cannot know, until after the Supreme Court or other powers that be will have finished ruling on a neverending stream of major, contested, issues of constitutional interpretation?11

Michelman’s question is, of course, rhetorical. He is convinced that, if the legitimacy of constitutional adjudication can be established, it cannot be done through contractarian means—that is, by making reference to a hy-

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pothetical rational agreement among reasonable persons about moral principles the constitution embodies. It is important to be clear about the nature of the complaint that I, following Michelman and Waldron, am making. The problem may seem to be that Rawls’s theory of justice is not determinate enough, that it does not tell us enough about how to resolve specific disagreements about justice. That would be a feeble critique. After all, the difficulties involved in applying abstract principles to particular situations are not new, and it is not a serious complaint against a theory of justice that it does not spell out all of the particular, practical implications of its application. Rather, the problem is that Rawls cannot succeed in specifying the rational basis of a constitutional regime’s legitimacy. It cannot be the case that law is legitimated by a background consensus on justice if, as Waldron argues, agreement on principles of justice is illusory, a thin veneer underneath which swirl serious disagreements at the level of application, where, so to speak, the real action is. It could not be rational in the first place, according to Michelman, for persons to think that law could be legitimated by a prior agreement on abstract principles, if the concrete content of those principles is so underdetermined that they can have little idea what the legal articulation of those principles over time will amount to. If positive law is to be legitimated, the relationship between law and morality that Rawls envisions cannot be correct. Actually, I think that these Michelman/Waldron lines of argument move too quickly. They assume that disagreements about application reveal agreement about principles to be illusory. Put another way, they presuppose that an agreement on principles is not ultimately meaningful, and that what really counts is substantive agreement on how actual issues should be settled. Although such a position does have a distinguished pedigree in American pragmatism and legal realism—and, more recently, moral particularism—it is nevertheless counterintuitive. Participants in practical discourse are capable of recognizing that agreements on abstract norms do not by themselves settle concrete practical questions. And yet such justificatory discourses are nevertheless useful in reaching mutual understanding in concrete, practical discourse: abstract and general principles have a cognitive function in argumentation. They normatively structure practical discourse insofar as it is part of our practice of practical argumentation to justify particular action norms with reference to general principles. When we share with our interlocutors a background agreement on abstract moral norms that bear upon a particular issue, that consensus shapes the practical discourse about par-



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ticular issues: what we are often after in such discourse is to determine how a shared norm bears on the issue at hand. Such assumptions are, of course, fallible: in the course of a practical discourse, it may turn out that, although I thought I shared with my interlocutor certain principles regarding human autonomy, for example, our respective understandings of what it means and how it should be prioritized are in fact too divergent for our discourse to continue on the assumption that a shared norm constrains what counts as a reason. In order for such assumptions to be rationally sustainable, it must be the case that the principles are sufficiently the same for us—that is, that our agreement draws on shared meanings. Rawls would not run afoul of the Michelman/Waldron critique if he could rationally ground the assumption that our disagreements about justice and constitutional essentials are disagreements about the application of the same principles. For then, it would make sense for the dissenters to continue believing that, while their opponents are incorrect about what the proper implications of the conception of justice are, they are nevertheless all still commonly committed to the same principles, and that they can use the force of reason to make their case within a framework that is already in place. Granted, this position becomes more difficult to maintain with regard to matters of basic justice that are under the legal jurisdiction of a constitutional court, given the finality of those decisions—in the American case, the Court’s (occasionally disputed) presumption to speak with finality about what the Constitution means12—and the difficulty of reversing them through ordinary political channels. Nevertheless, political decisions are never truly irreversible in a democracy,13 so the fact that we think the constitutional court is incorrect as a matter of both constitutional interpretation and substantive justice need not lead us to conclude that our society has irrevocably strayed from the political conception of justice, as we understand it. So long as we think that an overlapping consensus is still in place, we may still recognize the legitimacy of the constitutional order, while holding out hope that we may eventually convince our fellow citizens that our position is a more appropriate application of the principles of justice we already agree upon. The question is whether Rawls’s theory is able to vindicate this assumption of sameness: given an overlapping consensus, in either its ideal or realistic forms, are disagreements about constitutional essentials and basic justice properly conceived of as disagreements about the proper application of previously determined principles to particular cases? It follows from my argument in Chapter 3 that Rawls understands the political conception of

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justice and its justification in a way that makes him unable to give an affirmative answer to this question. Even in the ideal case, in which the semantic content of the principles of justice is fixed by a fairly explicit consensus, there is an important sense in which the conception is not shared: it is embedded in the various comprehensive doctrines of citizens. The sharedness of the semantic content is due to a fortunate confluence in the political culture, rather than being established by rational discourse between citizens about the meaning and value of political principles. And it is surely naive to think that our comprehensive views about how political justice is related to such matters have nothing to do with what we think political justice ought to mean in specific instances. Nor would Rawls, I think, deny this; he hopes that civil and legitimate political relations are possible in spite of it. Because he denies that there is a metaphysically privileged way of embedding the conception of justice in a comprehensive doctrine, he cannot expect that there are single correct answers for what justice as fairness ought to mean in hard cases. As a purely philosophical matter, he allows, there may in fact be a true comprehensive doctrine and so true answers to all questions about justice. That is, there may actually be something like a true blueprint for the just society. Rawls never denies this possibility, but the burdens of judgment suggest that we could never know whether or not we had ever hit upon it, much less get a consensus on such a blueprint. For political purposes, however, hard cases do not have single correct answers. How could they? There is no sense in which the principles of justice have a political existence independent of our diverse comprehensive doctrines. Political justice is only the content that reasonable persons rationally agree to; what it means in actual hard cases is up for grabs. This ends up being a serious problem for Rawls, as it shows why he is vulnerable to the critique of constitutional contractarianism. Public reason and the principle of liberal legitimacy are supposed to represent normative standards we ought to use to determine whether and when legislative acts are worthy of being obeyed for good reason, and whether we can see ourselves as the author of the laws that bind us. But it turns out that the indeterminacy of the public conception of justice prevents us from being able to make use of the conception in these ways. And it is not simply that we are never in a position to know whether a disagreement about basic justice or constitutional essentials is a disagreement about the application of the same principles. That might be tolerable, if it is at least likely that such is the character of our disagreement. But unless our interlocutors are limited to persons with whom we substantially share a comprehensive outlook



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on political morality, there is little reason to think that our overlapping consensus represents a common commitment to a shared constitutional project within which collective self-government would be possible. We might put the problem this way: Rawls’s theory captures how a consensus on principles regulates disagreement from the outside, but not from the inside. That is, if there is an overlapping consensus in place, we can observe our fellow citizens, our constitution and its history, and get a sense of what kinds of arguments and outcomes our fellow citizens and our legal tradition are likely to accept. But that does not yet capture the internal perspective of citizens in a shared project of self-legislation: norms can be said to govern argumentation from within this perspective only when we can understand ourselves as engaged in a project of mutual understanding, attempting to come to an understanding about the correct application of shared norms. Without the rational expectation that we share univocal principles that constrain our thinking about what counts as a public reason in the same way, we lack a shared perspective. And without the expectation that our consensus establishes a common perspective of evaluation, the use of principles of justice in public reason amounts to mutual button-pushing: we appeal to these norms because we anticipate that persons of a certain description (that is, reasonable) are likely to respond to them in a predictable manner.14

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The democratic interpretation of Rawls’s theory of justice, and its application to the constitutional convention stage, founders on the following point: the constitutional order of justice as fairness cannot be thought of as a shared project that connects and rationally mediates between citizens with different comprehensive doctrines, since the connection between them that Rawls identifies is based on a fortunate overlap in the terminology that individuals use to describe their own conceptions of justice but need not be shared in any deeper sense. We can expect, then, that consensus at the level of principle (should we be lucky enough to have that) will fracture and prove insubstantial at the level of application and law, since application of the political conception of justice will be heavily colored by the comprehensive doctrine it is embedded in. Since no way of embedding the conception of justice in a reasonable comprehensive doctrine can be said to be normatively superior to another, citizens who construe their legally mediated relations to one another in the terms that Rawls recommends will be unable to regard their disagreements as being rationally resolvable. Can Habermas contend any better with this problem? I shall argue that he can by theorizing the relationship between the system of rights and positive constitutional orders in a way that makes credible the assumption that disagreements about issues of constitutional justice can be understood as disagreements about the application of principles, not about the principles themselves. Arguing this requires formulating a Habermasian response to Michelman’s critique of constitutional contractariansim—a stronger one than Habermas himself provides. Michelman maintains that his critique of constitutional contractarianism plainly applies to Rawls, and probably



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to Habermas as well. I think that he is to some extent mistaken about this: while the label “constitutional contractarian” may be fairly attached to Habermas, unlike Rawls, Habermas does not have what I have been calling a container theory of legitimacy, and that shields him from the most damaging version of the critique. With Habermas we see, on the one hand, an attempt to argue within the framework of constitutional contractarianism that there are single right answers to questions about constitutional principles. On the other, we also have an account in which persistent disagreements about matters of justice and constitutional essentials are not incompatible with the legitimacy of the democratic legal order, if that order is conceived in the procedural terms that I suggest, rather than being defined by a container of fixed principles. In effect, Habermas tries to show that the problems raised by Michelman’s critique of constitutional contractarianism cannot, and need not, be definitively resolved. I will start (1) by briefly explaining the sense in which Habermas’s approach does, and does not, fit the “constitutional contractarian” label, and then present his solution to the problem. This has three elements, each of which I will discuss in turn: (2) the distinction between justification and application, (3) the concept of legal paradigms, and (4) the concept of constitutional patriotism. In conclusion, I argue that Habermas’s solution raises the possibility—feared by those that press for constitutionalism against democracy—that democracy leaves everything up for grabs, so to speak. I close (5) by suggesting that this consequence is tolerable as both a practical and normative matter.

1. h abermas and constitutional contractarianism As we have seen in the previous chapter, the constitutional contractarian problem confronts Rawls quite vividly because, for him, constitutions are (ideally) supposed to be interpreted and applied in light of a conception of justice that is the object of an overlapping consensus. But if the application of constitutional norms and other higher-order principles is rendered indeterminate by differences among comprehensive doctrines, then the consensus cannot be rational in any strong sense, and indeed its very existence is to a certain extent questionable. Much of Rawls’s problem stems from his adherence to a container theory of legitimacy: the legitimacy of a legal order depends on its conforming to a pre-established scheme of substantive principles. But Habermas strongly rejects the container theory, and his discourse theory of law reconstructs the categories of rights that form the

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preconditions for legitimate lawmaking under postmetaphysical conditions in the form of “unsaturated” placeholders. As we have seen, this means that the abstract system of rights does not, in its “transcendental purity,” serve to norm any actual legal practice. This requires a positive legal order and a democratic constitutional tradition that adequately realizes concrete rights that satisfy the system’s requirements. Constitutional principles and rights are, for Habermas, akin to Hegel’s “concrete universal”: the abstract and universal requirements of right get translated into particular, concrete forms that, while preserving a moment of universality, are anchored in the real and are capable of making rational requirements felt in this world. Despite these differences between Habermas and Rawls, however, two problems in Habermas’s constitutional theory threaten to expose him to the critique of constitutional contractarianism, as well. First, as in Rawls, the legitimacy of particular legislative acts presupposes that a constitution is in place that disciplines the use of political power by maintaining and enforcing the system of rights (as opposed to the constitutional essentials of a political conception of justice, as in Rawls). But questions about whether particular legislative acts violate basic constitutional norms are subject to reasonable disagreement. This is essentially the same difficulty that makes Rawls vulnerable to Michelman’s criticism: how can the constitutional order serve as a resource for transmitting relations of mutual recognition and justification, in the face of deep and persistent disagreement about what it ought mean with regard to particular issues? There is, moreover, an additional wrinkle to this problem for Habermas, for the question of whether the constitutional norms themselves properly fulfill the requirements delineated by the system of rights (which is, unlike Rawls’s conception of justice, unsaturated and not substantive) is potentially a further source of reasonable disagreement. There does not seem to be a clear way to rationally resolve either kind of disagreement. In the former case, the application of norms is indeterminate, since principles do not determine their own application. In the latter case, there is no single answer to the question of which concrete legal-constitutional rights best fulfill the requirements of the system of rights. It would seem, then, that the consequences are the same as they were with Rawls: Habermas will have failed to provide a rational basis for the legitimacy of any particular democratic legal order. In some brief remarks on Waldron’s and Michelman’s “reasonable interpretive pluralism,” Habermas suggests that, on the one hand, the problem they raise is essentially endemic and unsolvable, but that, on the other, it does not ultimately threaten the legitimacy of the democratic legal order.1



Habermasian Constitutional Theory

Indeterminacy stemming from disagreement about the correct meaning of norms and principles is ineradicable and will always be a potentially disruptive force in human social relations: “[N]orms are inherently indeterminate” (BFN, 217). Nonetheless, Habermas believes that he can use discourse theory and liberal political culture to manage these problems adequately. There are two main moves in this line of thought: first, discourse theory distinguishes between the justification of norms and their application, which opens up the possibility that citizens disagreeing about the application of constitutional norms might nevertheless genuinely agree on the principles themselves. Habermas then seeks to make this possibility more plausible by reconstructing the rational evolution of legal paradigms, and appealing to the idea of a liberal culture animated by constitutional patriotism, which allows citizens to expect that their fellow citizens are the inheritors of a shared constitutional project.

2. justification and application, single correct answers Drawing on the work of Klaus Günther, Habermas has developed a distinction between discourses of justification and application in the context of his discourse ethics. There, he seeks to compensate for a widely perceived weakness in Kant’s moral philosophy—namely, its insensitivity to questions of application. Kant reduces problems of application to a matter of testing the universality of maxims and thereby, in effect, denies that there is a hermeneutic dimension to ethics. Against this, Habermas and Günther press for a division of labor between two types of discourse. In discourses of justification, participants consider which norms, when generally observed, would be in the equal interests of all affected. Of course, they cannot anticipate all the situations that the norm in question might plausibly be applied to. Therefore, it can be demanded at most that in justifying norms, those consequences and side effects be taken into account that general adherence to the norm can be anticipated to have for the interests of each on the basis of the information and reasons available to them at a particular time.2

In discourses of application, by contrast, a “principle of appropriateness” functions as a rule of argumentation for participants considering which principles bear upon a particular situation and how the principles should be applied, given the relevant nuances of that situation. The crucial claim

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here is that the meaning of impartiality is exhausted only through the execution of both types of discourse. As Günther puts it: [T]he idea of the impartial application of norms compels us to become involved with the particular circumstances of a situation and appraise them in light of competing normative viewpoints. The relation of a norm to all other aspects of a situation has to be determined anew in every application situation because changes in the constellations of features cannot be foreseen.3

The impartial justification of a norm does not itself imply that any particular decision, action, or judgment invoking it is valid: “We cannot justify norms and defend concrete actions in the same breath.”4 Impartial consideration must also be given to the norm’s appropriateness and implications to the particulars of the situation to which it is to be applied. Impartial discourses of application take up norms that have been deemed prima facie valid in prior justificatory discourses. “That a norm is prima facie valid means merely that it has been impartially justified; only its impartial application leads to a valid decision about a case” (BFN, 217). The division of labor between discourses of justification and application suggests to Habermas a corresponding division of labor in the infrastructure of the democratic constitutional state. Those institutions charged with translating the rationally formed will of the public into legislation—that is, the legislative branch—specialize in discourses of justification. That is to say, they determine which generally applicable legal norms would be in the interest of all those affected. The judiciary, on the other hand, specializes in discourses of application, determining which prima facie valid legal rules and principles apply to cases that arise and how they do so. Constitutional norms articulate basic rights justified largely by moral arguments; the justification of statutory laws that touch on basic matters of justice proceed in the legislature with reference to these norms, and constitutional courts apply constitutional law to check these legislative acts.5 Whereas the application of existing legal rules to particular cases is a task for courts, the application of constitutional norms in lawmaking is one carried out by the people and the legislatures, checked by the courts.6 If a political process is to amount to more than a modus vivendi balance of power, Habermas considers it essential that it express a common project of realizing a political union of free and equal persons, and that our inevitable disagreements do not question the very validity of that enterprise or its pragmatic presuppositions. The project of self-legislation depends, in his view, upon the assumption that our disagreements about justice have rational answers, however difficult and exhausting it may be to get at them.



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Habermas writes: “The democratic process promises to deliver an ‘imperfect’ but ‘pure’ procedural rationality only on the premise that participants consider it possible, in principle, to reach exactly one right answer for questions of justice” (RS, 403). For this to be credible, the meaning of a given constitutional principle must be considered univocal and objective, in the sense that the correct answer to the question is independent of however I or my interlocutor happen to subjectively understand its meaning. If we did not understand things this way—that is, if we thought that the meaning of constitutional principles was determined by our own understanding of what they ought to mean in specific instances—then disagreements about concrete issues would amount to collisions between subjective and mutually uncomprehended worldviews, rather than the search for mutual understanding about a norm we simultaneously hold in view. This would make the notion of a common constitutional project difficult to sustain. For the project of self-legislation is a rational and communicative one, not a struggle between worldviews. And just as we must jointly recognize the presuppositions for rational discourse in order to make intersubjective communication possible, legal consociates need to take themselves to be committed to constitutional principles of univocal meaning in order for communication through law to be possible. The question is how this could possibly make sense, given the persistence of serious disagreements about the meaning of constitutional principles in practice. The distinction between justification and application helps explain the justifiability of this assumption by opening up the possibility that such disagreements are disagreements about application, which would then not undermine any consensus achieved by prior discourses of justification. Legal adjudication has a special role to play in sustaining the pragmatic presuppositions of a shared constitutional project. Courts must proceed on the assumption that the justificatory discourses that produced the legal system as a whole form a coherent unity: hard cases involving clashes between prima facie valid rules and principles can be resolved without the courts having to resort to discourses of justification (that is, without having to posit and justify principles not already contained in the law) that they themselves are not legitimately equipped to carry out. For if there were gaps or serious, unresolved clashes among principles, disagreements about how issues implicating constitutional rights and issues of justice should be resolved would no longer be about application of the same principles, since no coherent set of principles could be said to contain the answer to the hard case in question. It is easy to see how this leads Habermas and Günther to

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endorse a version of Dworkin’s “law as integrity”: judges are charged with the task of resolving hard cases by reconstructing the set of principles that makes the best, most coherent moral sense of the statutes and precedents applicable to the case at hand. Habermas and Günther must, however, make sense of this practice without the moral realism about deontic principles that Dworkin uses to support the conclusion that hard cases have single, correct answers (BFN, 211 and following). Helpful though the justification/application distinction may be in answering the critique of constitutional contractarianism, it cannot demonstrate, in one fell swoop, that disagreement about basic justice and constitutional essentials does not undermine the rational basis of a constitutional order’s legitimacy. While it opens up the possibility that a given disagreement concerns only the appropriate application of a shared principle to a particular case or issue, leaving agreement about principles intact, disagreements at the level of justification remain equally possible. What compounds the problem is that we do not seem to have any reliable criteria for determining whether a given disagreement concerns either justification or application; in many cases, this is itself a source of metadisagreement. And while the mode of adjudication recommended by the Habermas/Günther discourse theory of law may (in most cases, at least) be able to maintain the ideal of a legal system’s coherence by “rationally reconstructing existing law so as to allow precisely one right decision for each new case” (BFN, 219), it does so, they admit, in a manner that is not easy to predict in advance. As Günther notes: “The participants know with which norms a prima facie applicable norm will collide in a situation only after they have related all the relevant features of a description of that situation to applicable norms.”7 Even if it were possible (for example, for Dworkin’s Hercules) to work out all the subrules that should govern the application of constitutional principles to a comprehensive scheme of situation types, in the here-and-now we certainly have no way of knowing what this would look like, beyond our no doubt patchy and fallible reconstructions and projections of existing constitutional law.8 Habermas comments: “Evidently, this coherence theory of law can avoid the indeterminacy due to the contradictory structure of the legal system only at the cost of the theory itself becoming somehow indeterminate” (BFN, 219). How, then, can this approach ensure a consistent project of working out the same constitutional principles over generations, if we cannot reliably distinguish between disagreements concerning justification and application? If Habermas accepts some version of Rawls’s publicity conditions, it would seem important that we be able to do so. The



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distinction between justification and application opens up space for solving the constitutional contractarian dilemma, but hardly does so on its own. In this connection, however, Habermas adverts to complexity-reducing features of liberal legal and political culture: legal paradigms and constitutional patriotism.

3. l egal paradigms For Habermas, legal paradigms are generic conceptions of (a) the nature of the legal person, the subject of law, and (b) the telos of the rule of law— that is, its point or goal. Together, these elements serve as a resource for legal interpretation, constraining the realm of valid interpretations. Much as Habermas’s idea of the cultural lifeworld equips participants with stocks of paradigmatic interaction and situation types that grease the wheels of everyday communication in his social theory, well-established and publicly accepted legal paradigms allow participants interpreting existing laws, or seeking in a more general way to understand the direction of their constitutional project, to avoid having to reconstruct the legal system from the ground up, each and every time—an impossibly cumbersome task. Modern legal history, Habermas thinks, offers two prominent paradigms: the liberal and the welfare state paradigms. In the former, legal persons are construed as private persons bearing natural rights that insulate them from outside interference, and the point of the legal system is to secure both the negative liberties of private persons and the market structure of society. In the latter, the legal person is a client of the state with a set of needs relating to life prospects, and the legal system aims at securing for all an adequate degree of substantive equality. Habermas argues that both paradigms are too concrete for contemporary societies; they rely on substantive conceptions of person and society, which distort the meaning of political autonomy by conceiving of autonomy as something already defined and to be achieved through bureaucratic mechanisms, rather than something that must be given shape by persons in the process of becoming autonomous. Both paradigms thereby fail to capture the co-originality of private and public autonomy. Habermas’s proceduralist paradigm accepts that the achievements of the welfare state ought not be abandoned, but contends that understanding the welfare state in terms of a client relationship between citizens and the state threatens to distort the meaning of private autonomy, and that an unprob-

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lematic retreat to the liberal paradigm is not a viable option for complex societies. Rather, the social welfare project “must be pursued at a higher level of reflection” (BFN, 410). What does this mean? The proceduralist paradigm interprets the constitutional project of realizing a union of free and equal persons in terms of citizens securing private and public autonomy for themselves and their consociates through the democratic process. Clients of the welfare state should have a stake and a role in the articulation of their own rights, their needs, and the interests of their communities; only so can the actions of a welfare state cast off their paternalistic connotations and be linked to the realization of rights through citizens’ participation (BFN, 411). Habermas sees the development from the liberal to the social welfare to the proceduralist paradigms as rationally progressive: in dialectical fashion, each responds to shortcomings present in the previous form. The problem here is the following: if we grant Habermas his argument concerning the co-originality of public and private autonomy, we can see how he is entitled to make the claim that a proceduralist legal paradigm represents a rational advance on its predecessors. But, ironically, those features that make it a rational advance prevent it from being particularly helpful in answering the constitutional contractarian critique. The critique of constitutional contractarianism draws our attention to the problem of indeterminacy in the application of legal norms, which leads to citizens not being able to understand the shape of their constitutional project. A legal paradigm could, in principle, ameliorate this indeterminacy by supplying stock answers to questions about what the legal system aims at and what conception of the person it should accommodate. This would help satisfy Rawlsian publicity conditions: citizens would be armed with a relatively concrete understanding of the meaning of their constitutional principles and a better idea of what their realization would look like. This shared understanding would then provide criteria for determining whether disagreements are merely about the application of shared principles, or are deeper disagreements about the moral substance of the constitutional order. But the proceduralist paradigm claims to be a rational advance over previous paradigms precisely by virtue of divesting itself of these sorts of substantive contents, leaving it to citizens themselves to determine what shape their autonomy shall take. In Chapter 6, I defended the plausibility and desirability of Habermas’s attempt to develop a political theory independent of moralized conceptions of person and society. But here this move looks problematic—or, at any rate, unhelpful in solving the problem of constitutional contractarianism. In order to solve this problem, Habermas now must appeal to features of a



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legal culture whose contingency is not easy to reconcile with the rest of his theory: constitutional patriotism—that is, citizens’ dedication to their common way of carrying out their constitutional project.

4. c onstitutional patriotism Although the idea of constitutional patriotism is closely associated with Habermas’s thought, his references to it are fairly scattered and, I contend, subject to a crucial ambiguity. Constitutional patriotism is, in the first place, an attitude or orientation that galvanizes loyalty to the principles of a constitutional regime and a sense of solidarity with one’s legal consociates. In this way, it is supposed to act as a functional substitute for the collective identities and orientations to the common good appealed to by familiar forms of nationalism or ethnic identity. When examined from this angle, it seems that Habermasian constitutional patriotism represents just a more abstract, less ethically substantial form of collective identity, whereby loyalty is tied not to a particular national ethnic culture but to a set of abstract principles as they are concretely embodied in the nation’s constitution. Thus, Habermas refers to constitutional patriotism when affirming a democracy’s functional need for a sense of solidarity among citizens who remain strangers to one another. In the absence of pervasive ethnic or kinship ties, democratic citizens still require some form of collective identity that motivates a sense of common purpose and citizens’ willingness to take responsibility and sacrifice for one another. Habermas is well known for arguing that modern moral consciousness is itself too abstract, too indeterminate, too narrowly focused, and most important, too divested of conventional sources of motivation to support these requirements for legitimate democratic politics. On the other hand, he is equally well known for refusing to concede that democracy therefore requires a substantive corporate identity involving ideas of an authentic national people or national culture. He argues, instead, that a form of life that successfully “decouples” majority national and ethnic cultures, which are inherently particularistic and connected to substantive conceptions of the good, from a more inclusive political culture that attaches to civic virtues, which all can partake of merely insofar as they are citizens, could potentially resolve the tension in the concept of democracy between the putative universality of its principles and the substantive national identities that it has heretofore relied on for its success.9

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Democracy requires a motivational supplement from constitutional patriotism (or some functional equivalent) because commitment to the moral/legal principles of democratic constitutionalism is insufficient for grounding a pervasive orientation toward the common good (BFN, 499). There are two reasons for this: first, there is the familiar communitarian/republican thesis that moral universalism alone is too bloodless to enliven the public-spiritedness of a legitimate democratic politics. The second, more specifically Habermasian, point is that, prior to the institutionalization of a system of rights and the democratic principle in a positive legal order, there is really nothing sufficiently tangible for anyone to be coherently committed to in the first place. For as we know by now, according to Habermas, the rational reconstruction of the system of rights provides only a series of abstract placeholders, and even the norms of basic human rights must be juridically concretized for them to have actuality. In this model, democratic public life is not integrated around a central corporate identity. Rather, “the abstract idea of the universalization of democracy and human rights forms the hard substance through which the rays of national tradition—the language, literature, and history of one’s own nation—are refracted.”10 Patriotism, then, centers on a dedication to those elements of a national political culture that can be reconstructed in order to give substance to the principles of human rights and constitutional democracy. There is nothing inherently wrong with citizens continuing to adhere to collective national or ethnic identities, so long as these remain distinct from an inclusive political culture of constitutional patriotism, and so long as it is the latter and not the former that constitutes the reference point for public-spiritedness.11 Constitutional patriotism focuses, then, on the concrete articulation of principles supported primarily by arguments from the moral point of view and dedication to the particular, exemplary way that one’s national political culture manifests these principles.12 While this moment of cultural particularity cannot be allowed to overwhelm the ethical neutrality of the law, it turns out to be quite important for the function that constitutional patriotism is supposed to play, as the system of rights “must be enduringly linked with the motivations and convictions of the citizens, for without such motivational anchoring they could not become the driving force behind the dynamically conceived project of producing an association of free and equal individuals” (IO, 225). Only by being ethically imbued through legal interpretation and application do constitutional principles take on sufficient substance to be recognized as being genuinely shared by a collectivity.



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Put another way, it seems that the particularistic element of constitutional patriotism is the crucial one for solving Habermas’s constitutional contractarian problem. Solving that problem requires that the applications of constitutional principles be consistent enough, over time, to make credible the assumption that they represent a coherent project. When citizens know one another to be constitutional patriots, similarly dedicated to a shared way of realizing a constitutional project, they can be reasonably confident that their disagreements over matters of justice and constitutional rights represent disagreements over application of the same principles, and not fundamental disagreements about the meaning or validity of the principles themselves. Indeed, that is how Michelman sees Habermas attempting to solve the constitutional contractarian problem: “Constitutional patriotism,” it appears, is the morally necessitated readiness of a country’s people to accept disagreement over the application of core constitutional principles of respect for everyone as free and equal, without loss of confidence in the univocal content of the principles, because and as long as they can understand the disagreement as strictly tied to struggles over constitutional identity. And what explains that readiness, when and where it is found? The answer to that must be that conditions then and there warrant a level of confidence that the struggle over corporate identity occurs within a corporate identity that is already incompletely, but to a certain degree, known and fixed.13

But this does not seem compatible with the best, most consistent interpretation of constitutional patriotism. Granted, sometimes Habermas seems to use the concept of constitutional patriotism as his answer to the question of whether a post-traditional form of identity could be strong enough to hold together a legitimate form of democratic politics. That is to say, he sometimes treats constitutional patriotism as a kind of communitarian glue, abstract enough to avoid the exclusionary consequences of nationalistic identities but nevertheless substantive enough to engage the cultural self-understandings and motivations of citizens.14 This would suggest that the difference between constitutional patriots and the more familiar national ones is a matter of degree. However, as Ciaran Cronin has argued, constitutional patriotism is not so much a form of national identity distinguished merely by its greater degree of abstraction; it is a procedural identity.15 Along similar lines, Jan-Werner Müller stresses that constitutional patriotism involves “an ongoing, critical process of attachment, revision, and re-attachment.”16 What distinguishes constitutional patriots from their nationalistic counterparts is their dedication to the framework through which diverse groups can jointly pursue a shared social life regulated by reason

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and mutual understanding (that is, the system of rights and principle of democracy), their standing commitment to enter into discourse about the substantive meaning of constitutional principles, and their willingness not to insist dogmatically upon their settled meaning. Thus, a crucial ambiguity remains. Recall that, for Habermas, different constitutional orders, insofar as they successfully enable legitimate democratic politics, actualize the system of rights in a variable manner, depending on the historical experience and political culture of the society in question. But they should nevertheless realize what are, in some sense or another, the same principles: “Each national constitution represents a historically different way of construing the same—theoretically reconstructable—basic rights, and each positive legal order implements the same basic rights in a different form of life” (RS, 400). But what, exactly, in all of this is the constitutional patriot dedicated to? There seem to be two possibilities: (a) constitutional patriots could be primarily committed to universal human rights and democracy, and committed to the local constitution as a presently adequate instantiation of that universal content. Or, perhaps, the emphasis is the other way around: (b) constitutional patriots could consider their constitution’s way of instantiating universal requirements to be exemplary and valorize the particular way that the system of rights is instantiated in the constitution and those local features of the constitutional history and political culture that allow the universal to shine through in an especially clear manner. One might want to refuse to see these options as distinct and answer, “Both.” And, indeed, the question here is one of emphasis, as I did just argue that constitutional norms are concrete universals for Habermas, and therefore, the respective concrete and universal elements cannot be fully parsed. Once we comprehend them as concrete universals, we see that it makes no sense to be committed only to the universal content, as that content cannot be represented in the absence of concrete instantiation in law; absent this instantiation, there is nothing to be committed to. Similarly, it makes no sense to be committed only to the particular way that rights and democracy are instantiated in the local constitutional order, as we are seriously misunderstanding the meaning of rights if we fail to understand them as involving validity claims that overshoot their particular context. But the emphasis one puts on either the concrete or the universal does matter, as the two interpretations of constitutional patriotism pull in different directions; one element must have priority over the other in order for the concept to have a fully coherent meaning—otherwise, it is not clear what constitutional patriotism would mean in specific cases. Do we give



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considerable weight to the precedents set by our tradition’s way of doing things, or just treat the concrete element as necessary for making the universal manifest, but of no particular normative significance? If (b) represents the fundamental commitment, then constitutional patriotism is most basically an ethical-political loyalty to the exemplary “way things are done here,” and, by extension, those legal consociates commonly committed to realizing this exemplary constitutional project. Constitutional patriots of the B variety are characterized by an inclination to valorize their national constitutional history—or, at any rate, what they take to be the most morally appealing appropriation of it. If, on the other hand, a commitment to (a) is the fundamental one, then constitutional patriots will be called on to relativize their understanding of what the system of rights calls for in this particular order, to realize that there are multiple valid ways for human rights and democracy to be actualized, that their particular constitutional order does not enjoy any privileged justification, and that changing circumstances might call for significant reforms. At best, the local constitutional order might represent an appropriate version of the system of rights, given a particular society’s contingent historical experience, but one can never take for granted that this is the case. Constitutional Patriot A is characterized by a refusal to see the features of a particular constitutional order as fixed or settled, rather being constantly and inevitably open to discursive development. This either/or becomes more pronounced when we realize that neither conception of constitutional patriotism is capable of solving all of the problems that Habermas wants the concept to solve, although I will argue that the (a) version nevertheless represents the better interpretation. Constitutional Patriotism B is better able to calm the communitarian worry about democracy’s functional need for a communal ethos, for the (b) version underlines the substantial (albeit thin), shared ethos of particular constitutional democracies—that is, the sort of thing that communitarians invoke as being necessary for the legitimate integration of political communities.17 More important for our purposes, it helps to solve the constitutional contractarian problem by stabilizing the application parameters of constitutional principles, giving citizens a relatively clear sense of how their constitutional project has been and (probably) will be realized, making more credible the notion that what we are pursuing in our disagreements about constitutional issues is the correct answer to the question of what already agreed upon principles mean in a specific case. Constitutional Patriotism A, on the other hand, seems clearly more

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consistent with the nonsubstantive, procedural conception of reasonableness that, as I argued in Chapter 6, is the most defensible interpretation of Habermas’s legal-political theory. It also is more consistent with some Habermasian aspirations that I have not attended to in this work, but that are nevertheless essential to his project as a whole: conceptualizing a fully inclusive form of politics and the rule of law that is capable of extending beyond the nation-state.18 For Habermas, it would be unacceptable to propose a conception of constitutional practice that would license nations to claim final validity for their particular, ethically tinged manner of concretizing human rights and democracy. Over the last decade and a half, he has forcefully argued that democracy and the rule of law are not essentially tied to any particular sort of community, nor are they inherently dependent on the sorts of nationalistic sentiments that admittedly aided in their development. Discursive democracy is available to any group of any scope that wants to shape its social life through the medium of law and is capable of sustaining the kind of ongoing communication that legitimates that medium. The nation-state is not the sole context for institutionalizing the rule of law and democracy. Moreover, given current trends toward the “denationalization” of governance and the growing prominence of transnational law, it seems important for theorists who defend a cosmopolitan outlook on such matters to oppose ideas of constitutionalism that accord any national community the final authority to determine what the meaning of the system of rights is. If constitutional patriots are also to be cosmopolitans, they will have to recognize the relative validity of their own constitutional traditions and accept the possibility that they may sometimes have to bend to the authority of cosmopolitan norms. And it is surely theoretically desirable to be able to understand those forces that promote support for the rule of law and democracy beyond the nation-state as the same as those that animate democracy within the nation-state. Only Constitutional Patriotism A accommodates this result. Version B opens up the possibility that constitutional patriotism and cosmopolitanism could pull in different directions.19

5. coping with constitutional indeterminacy No solution to the difficulties involved in the constitutional contractarian paradigm will be simple or complete. While an ethically substantial reading of constitutional patriotism, of the sort that Michelman favors, might be helpful for ameliorating the indeterminacy of application involved in the



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constitutional contractarian problematic, its substantiality is at odds with the procedural character of Habermas’s thought, which I have stressed throughout, and it opens up too many other problems to be a good interpretation. In short, the tools that a Habermasian might be tempted to use to resolve the constitutional contractarian problem—complexity-reducing legal paradigms and the ethos of constitutional patriotism—are, in their most developed forms, too formal and procedural to be of much help. So are we, then, stuck with the constitutional contractarian problem? To a certain extent, yes. In order to see themselves as the authors of the laws that bind them, citizens must be able to see themselves as jointly engaged with their legal consociates in a common constitutional project, such that their disagreements are good faith disagreements about what the correct meanings of the same principles are. The discourse theory of law and democracy explains how this could be the case, but that does not seem sufficient: given the persistence of deep disagreements about law and justice in contemporary constitutional democracies, it may seem like a pious wish to assume that a shared, continuous constitutional project underlies them in any given instance. There are, however, a few limited moves that can be made at this point. Habermasian reasonableness does not attach, as it does in its Rawlsian form, to substantive moral norms. It thereby obliges reasonable constitutional patriots to be willing to revise the concrete forms that their constitutional principles take at a given time in light of new arguments and experiences. This line of thought suggests that Habermas should be more explicit than he typically is in insisting that the articulation of a constitutional project over time is one that takes place neither merely nor even primarily through the technical vocabulary of law used in the judiciary, but rather also through the medium of ordinary language. As such, Habermasian constitutional patriots ought to think of themselves as having a participatory role to play in this process, one not ultimately subordinate to an elite judiciary.20 But this need not spark the fear that everything is up for grabs in constitutional democracy. At the very least, legal consociates are inheritors of a shared constitutional history. It is true that the implications of this history will often be controversial, and even if they are not, citizens are still not chained to the defects of that history, or obliged to give it any special justificatory weight in determining what their constitutional project should look like in the future.21 But they do have a broadly shared hermeneutic starting point, and, for better or worse, that usually makes a reversal of precedent, a shift in the way different kinds of rights are achieved in tandem, more difficult

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to accomplish than staying the course. Much depends on the existence of a nondogmatic political culture: if citizens need not believe that their fellow citizens are commonly committed to a set of substantive and invariant constitutional norms, they must at least need to believe that their consociates generally revisit the constitutional terms of their political union in good faith, ready to be swayed by the better argument, in a sincere effort to better realize the system of rights in changing circumstances, and not with dogmatic adherence to an ossified ideology or private interest.22 Citizens need to be reasonably confident that the machinery and political culture of their democracy is in good working order. And these assumptions may be quite tenuous in most democratic states. To the extent that they are credible, however, a regression in legal paradigms (for example, dismantling the welfare state and the return to a classical liberal or even premodern legal paradigm) should not be a serious possibility. Habermas has been criticized for being excessively sanguine in his assumption that the progressive transitions between legal paradigms are settled and more or less irreversible, and perhaps some of his rhetoric exhibits too much confidence in the progressive realization of the system of rights through the evolution of legal paradigms.23 But he does not assume that democracies cannot make serious mistakes. Rather, his contention is that there are better and worse ways of attempting to realize the system of rights, and that genuinely distorting regressions, such as dismantling the New Deal, would make themselves felt in the lifeworld to such an extent that they could not stand so long as the machinery of democracy is reasonably intact and responsive to the public sphere. On the other hand, Habermas’s procedural theory of law and democracy does leave us with the impression that much of the substance of constitutional democracy is up for grabs, a discomfiting impression that leads many to militate for constitutionalism against democracy. Given the fact that Habermas, following Günther, holds that we cannot know in advance the fully worked out subrules of application that would make our legal system fully coherent, the discourse theory of law demotes the principle of legal certainty as it applies to constitutional adjudication (BFN, 220). It thereby limits predictability as one of the canonical values of the rule of law. At the end of Chapter 6, I suggested a compromise between Rawls and Habermas: given the recognition of reasonable pluralism, and the illusory nature of consensus on substantive values, reasonable citizens would be better off both normatively and practically to regard the framework for



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their political relation as responding to the normative demands of rationality and the functional demands of law, and not to see it as a fixed container fashioned of substantive moral principles. A similar point can be made in this context: given the recognition of reasonable interpretive pluralism, we are better off acknowledging that for all of its merits, constitutionalism is not a magic bullet that fixes, once and for all, the legitimate terms of our political relations. Practically speaking, it is a potentially distorting illusion to see ourselves as unproblematically inheriting an already determined moral-legal order, a stable container for our politics. Seeing matters that way could lead us to minimize the scope of the reasonable disagreements we do have with our fellow citizens, or to view those who dissent from received interpretations of our constitutional project as being outside of it altogether.24 It is better to face the fact that the legitimacy of our political union is a fragile thing, which must be sensitively renegotiated time and again, between us here and now. Habermas hopes that people who share this reasonable willingness to revisit the terms of their political union will still understand themselves as critical inheritors of a shared history, which would allow them to see their differences in terms of competing proposals for realizing the same constitutional project. I think Habermas would grant that this sense of shared principles can become very tenuous, and it may sometimes (often?) not be credible at all. But that is not something to be wholly regretted, since, on the Habermasian way of looking at things, constitutionalism is something dynamic, and normatively speaking, it distorts the meaning of political autonomy to see our fidelity to the constitutional rule of law as bound to exogenously determined moral norms. It is better, on this view, to acknowledge that the meaning of our constitutional project is not fixed either in transcendental heaven or by any stable consensus, and that we are held together—when we are—by the more meager resources of our ability to reach mutual understanding with one another and our willingness to try to do so.

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Conclusion: Idealizations and Power

What I have tried to show in this work as a whole is that by looking at the two major systematic projects in recent political thought that seek to understand themselves in non- or postmetaphysical terms, the case can be made that there is a viable agenda for this kind of normative philosophy. I have not tried to maintain that the more contextual, genealogical, or otherwise localized political theory projects that I briefly surveyed in the introduction ought necessarily to be rejected in favor of some kind of suitably refurbished Rawlsianism or Habermasianism. But I have argued that the increasing implausibility of political theories that employ substantial, universalistic, practice orienting conceptions of reason should not lead us to abandon the attempt to develop impartial answers to the large questions of societal justice and legitimacy that are the legacy of so much modern political philosophy, as Rawls and Habermas have, with varying degrees of success, developed innovative ways of engaging these sorts of questions. By working through Rawls’s methodological paradigm, we get a sense for the hurdles facing a theory that seeks to justify a general normative perspective while being sensitive to the limitations of reason that so much nineteenth- and twentieth-century philosophy has drawn our attention to. In particular, the agnosticism involved in Rawls’s conception of reasonableness ultimately proves problematic: Rawls insists that the philosopher leave it to reasonable persons to determine for themselves why a given conception of justice is morally correct, while the philosopher remains agnostic on questions about its ultimate basis, above the fray of the various gods and demons of a pluralistic society’s comprehensive doctrines. Because of this, the content of the conception of justice, especially at the application



Conclusion: Idealizations and Power

stage, is hostage to the particular ways that different comprehensive doctrines substantiate it, causing it to be hobbled with indeterminacy when we attempt to employ it as a public perspective that all can occupy in tandem. In general, this shows that it is crucial for a theory to be able to occupy the perspective of citizens who are both participants in and subjects of the democratic constitutional state, something that the Rawlsian philosopher, whose perspective is essentially different than that of the citizen-participant, does not do. A reconstruction of the rationality involved in the activity of being a colegislator and subject can claim to be both reconciling and critical, whereas Rawlsian reasonableness ends up privileging the reconciliatory role of public reason over the critical one. A theory that attempts to justify a still-universalistic conception of public reason, as Habermas does, is not similarly hostage to the multitude of different concrete interpretations that the abstract principles and values embodied in the democratic process are subject to. A question that I have addressed only obliquely throughout this work is whether the development of this kind of project matters, or should be encouraged. While I have been dealing mainly with critics of Rawls and Habermas who are broadly sympathetic, and at least tacitly consider their work important, Rawlsian and Habermasian political philosophy has its share of detractors. One often hears it objected that there is a false, otherworldly quality to their thought: in Rawls’s and Habermas’s universe, all of the citizens are reasonable, they are engaged in earnest, spirited dialogue about what is equally in the interest of them all, their ethical differences are capable of being overcome or bracketed, and consensus is consistently achievable. Furthermore, the consensually generated rational insights produced in this impressively civil process can be translated more or less seamlessly into the state apparatus; though mediated through the legal state, it is more than merely metaphorical to say that the people use public reason to give themselves the laws that bind them. Finally, this phenomenon of a politically active citizenry engaging in rational deliberation is the core phenomenon of modern constitutional democracy. In the introduction, I hinted that I would be offering a reading of both Rawls and Habermas that de-emphasizes their respective Kantian moments (which both authors frequently draw attention to), while highlighting their Hegelian ones (which they tend to suppress, at least rhetorically). This reading, I would argue, helps us to parry these sorts of criticisms. For while Kant is arguably a less “formalist,” purity-obsessed thinker than critics often allege, it is certainly Hegel who stresses that we cannot discover

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the content of reason through some mental operation whereby we abstract away from our contingent circumstances, but rather that reason is always and only manifest in human activity of some sort or another, and activity takes place in some social context or other. This was not meant by Hegel to reduce reason to its particular context, but to point out that it is always bound up with “positivity” (or contingency, or power), even as it struggles to overcome it.1 This Hegelianism emerged in the final two chapters, in which I argued that issues from legal theory ought to be seen as residing at the center of Rawls’s and Habermas’s political philosophies, because post/ nonmetaphysical theories such as theirs cannot claim to have any “pure” content, so we must scrutinize how they conceptualize the relationship between rational constructs like the political conception of justice and the system of rights, on the one hand, and actual legal practice, on the other, where law always has positive elements and contingent origins in legislative institutions shaped by interests, power, custom, and the like. One way of reframing the points I made against Rawls in Chapter 7 would be to say that he threatens to slip into the bad Hegelianism frequently associated with The Philosophy of Right, in which Hegel is often thought to be claiming that the rational is actual, that we should be reconciled to the current social world by virtue of coming to see how it manifests the fullest development of Spirit. Rawls is arguably making a comparable move when he suggests that we regard the legal regimes that we are subject to as legitimate because they issue from a constitutional order that we are to interpret as if it represented a reasonable consensus about political justice.2 The reading that I gave of Habermas’s legal theory, on the other hand, may be recast as a form of good Hegelianism: a Habermasian constitutional project is not a course charted toward a communicative utopia or a kingdom of ends, but a never-completed, ongoing effort to produce a maximally transparent and mutual legal regime, while always contending with the fact that the universal pragmatic presuppositions of communication are, in the constitutional state, contingently and concretely embedded in positive law. It is true that Rawls and Habermas make frequent use of abstractions and idealizations in their approach to law and politics. Of course, any minimally sympathetic critic must acknowledge that they do not take the kind of deliberative politics described in their theories to be a reality. We should concede, however, that the kind of deliberative ideal supposed by both theories ought, at minimum, to be conceivable. For that matter, since both Rawls and Habermas advocate for aspirational representations



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of what political life should be like (but is not), it should be expected that their theories, as I argued in the introduction, will to some degree be capable of orienting practice—if not with a point-by-point reform agenda, they should at least be capable of equipping us with the ability to gauge progress and regression. And we should be able to recognize the more idealized conditions suggested by Rawls and Habermas as more than merely conceivable but also desirable, and worth aspiring to. It may seem far from obvious that either theory satisfies these conditions of conceivability and desirability. Richard Posner, for example, represents one recent expression of this skeptical line of thought.3 He groups together theories of democracy that tie political legitimacy to a process of inclusive, rational deliberation among citizens who subordinate their self-interest to the common good, and argues that, quite simply, politics in modern constitutional democracies bears so little resemblance to these ideals as to render them beside the point, at best. Politics is, instead, an essentially messy business conducted by a multitude of official and unofficial actors with widely varying amounts of information and social power, with little grasp of the total situation of which they are a part. Their motivations are complex; if they have any “orientation toward the common good,” it is likely vague and noncommittal, one consideration among many. Moreover, the expectation of broad-based, discursive, and rational participation on the part of the citizenry is a mirage: in modern democracies, voters tend to be apathetic and poorly informed, myopic and without well worked out views on what the common good consists in when they do participate. It is no accident, Posner contends, that idealized deliberative theories are the creations of philosophers, since they conceive of public deliberations on the model of discussions in a moral philosophy seminar. If one insists on linking the legitimacy of the lawmaking process to even an approximation of this deliberative ideal, one will simply end up concluding that nothing is legitimate. On Posner’s Weber- and Schumpeter-inspired view of modern politics, for as much as modern political philosophy may have contributed to the development of sensible political institutions and cultivated the laudable conviction that laws should be responsive to the interests of the governed, the radicalization of these ideas into the notion that law should literally be made by the people is quite unhelpful for coming to terms with the reality of modern democracy.4 When couched in these terms, there are reasonable Rawlsian and Habermasian rejoinders to this objection. Rawls does not take entirely seriously the idea that legitimacy depends on participation to a point at which the

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notion of government “by the people” would be more than metaphorical. Although Rawls clearly values the integrity of the democratic process, he refuses to follow “civic humanism” in viewing the exercise of political virtues as essential for the good life (though he claims that such an ethos may find itself at home within the big tent of political liberalism) (PL, 206). Implicit in this is the denial that the legitimacy of the democratic process depends strongly on the spirited activity of a virtuous citizenry. Rather, Rawls’s conception of political autonomy is an ideal whose realization depends primarily on (a) a certain degree of convergence toward attitudes of tolerance, fairness, and reciprocity among a society’s main comprehensive doctrines, which, Rawls contends, it is reasonable to think can happen; and on (b) political power being exercised through and justified with a language that invokes principles and values known to be mutually acceptable to the plurality of reasonable persons, which for Rawls is essentially a matter of civility and transparency. Now, there are real concerns associated with both (a) and (b), that I have, to some degree, sought to substantiate in my analysis. With regard to (a), I have argued that the occurrence of this convergence turns out to be basically a matter of happenstance, and that it is doubtful whether it will amount to much convergence on practical and concrete issues. This leads to my reservations about (b): the conciliatory language of the political conception of justice may prove to be a facade that covers unreconciled antagonisms and disagreements. That said, for as plural and mutually uncomprehending as the different liberal and conservative, religious, and secular worldviews within modern societies may be, it seems hard to deny that modernity does not at least put some pressure on group identities to accommodate beliefs and attitudes conducive to individuals’ ability to operate in civil society and the capitalist economy (for example, elements of the modern moral worldview, a degree of acceptance of scientific rationality, and so forth). And for as rancorous and vapid as political discourse in modern Western democracies strikes so many observers, one cannot easily deny the desire among significant mainstream elements for a more conciliatory politics of unity amid difference. There are, for example, strong elements of this latter dimension of Rawlsianism in the rhetoric of the (at the time of this writing) young Obama administration (though whether much will come from the reconciliatory aspirations of Obama’s politics remains to be seen). It strains credibility to look at the conditions for a reasonable approximation of Rawlsian ideals and to claim that they are utterly divorced from reality.



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Habermas is initially more exposed to Posner’s Weber/Schumpeter line of argument, as he does insist rather more strongly than Rawls that actual discourses are required in order for norms to be valid, and hence, that a good deal of actual participation (oriented toward mutual understanding, as opposed to narrow considerations of strategic interest) in both formal and informal settings, among those affected by the application of said norms, is required for the production of law that those affected may credibly regard as a norm that they give (or would have given) themselves. However, Habermas also confronts more directly the objection that a deliberative republic is a fanciful ideal. What, he asks, is the alternative? The days are gone when we can consider groups of natural superiors to be inherently better qualified, or morally entitled to rule. As Habermas’s early engagement with Herbert Marcuse’s thesis that the ability of experts and elites to exercise efficient control over social and economic life is turning into a self-sustaining justification for their domination—the thesis that science and technology are becoming ideological5—demonstrates, to imagine a political community that has altogether given up on the task of seeking consensual solutions to common problems and ceases to interrogate the justifications for laws that bind them, content instead merely to accept technical solutions, is to imagine a marked change in the life of a species socialized in linguistic forms of life to raise, accept, and reject validity claims: “Before norms of domination could be accepted without reason by the bulk of the population, the communication structures in which our motives for action have till now been formed would have to be thoroughly destroyed” (CES, 188). While Habermas acknowledges that we cannot be certain that such a thing cannot happen, it seems premature to declare blithely that it already has, much less that it is for the best. For all of the distortions and shortcomings of the public sphere, issues of public concern are discussed therein, with participants seeking to parse and prioritize the various moral, ethical, and pragmatic dimensions. Insofar as participants seem willing to engage in discourse (however mediated through legal and commercial institutions) rather than resorting to manipulation or outright power plays, we ought to presume that these discourses possess cognitive content. And although the responsiveness of legislative institutions to discourses of the public sphere is neither perfect nor one-way, we lack convincing evidence that the connection is nonexistent, or that elites are capable of seamlessly programming the responses of the public.6 Rawls and Habermas both advocate a certain way of looking at politics—that is, of how we ought to think of political discourses as being

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structured—given that we believe it makes sense to engage in a project of mutual, good faith engagement. Of course, this given ought never be taken for granted, and the question of whether social conditions are such that it does make sense will be an empirical and often difficult-to-evaluate one. Often enough (perhaps more often than not, depending on the context), strategies of struggle, resistance, protest, and obstruction make more sense for actors concerned with substantive justice than do the cooperative, dialogical approaches recommended by Rawls and Habermas. But if we abandon the idea that some sort of normative framework for mutual engagement underlies these often pervasive disagreements and conflicts, if we who take ourselves to be reasonable persons are convinced that it never makes sense to engage the general public in an open-minded, discursive fashion, then we lapse into what Rawls calls modus vivendi politics, which for him characterizes Europe during the era of the wars of religion, and for which he believes we have the resources to move beyond (CP, 424; compare PL, xxxix and following). We might follow Carl Schmitt and insist that the basic relation of politics is not the one between free and equal legal consociates, but between friend and enemy.7 But why take this view before alternatives are exhausted? This discontent with Rawlsianism and Habermasianism can, however, be expressed in another, more sophisticated manner. We might say that while Rawls and Habermas pay lip service to the idea that actual politics is infused with power and interests, in ways both subtle and overt, they conceive of the normative standpoints they defend as being untainted by those forces. This leads them to present their theories as being, so to speak, above the fray. And there is something potentially self-deceptive about this aloofness, if we are convinced that reason is bound up with human interests and practices and thus possesses no pure content for reflection to grasp: we would be blind to the fact that values, ideals, and principles are stewed in the same cauldron with power and interests. And this might even prove to be perniciously ideological, insofar as we understand ideologies as doctrines that represent social relations as being shaped by justice and reason, when in fact they are products of power, domination, and contingency.8 Here, we can identify some vulnerabilities in Rawls’s program, one specific, one more general. The specific point relates to the line of criticism that I have developed against Rawls throughout this work: Rawls takes for granted that reasonable people are committed to what I have been calling the modern moral worldview—that is, the set of moral intuitions revolving around the central notion of citizens as free and equal persons. He does



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not ask how seriously individuals are committed to these ideals, how inclusive or exclusive their conceptions of respect and merit are, how their understanding of this notion is shaped (or distorted) by their other beliefs, and so forth. That is not to accuse Rawls of an error of omission; he has well worked out methodological reasons for bracketing these issues, which pertain to the way that reflective equilibrium relates to the constructivist method. Since Rawlsian political philosophers are not in the business of criticizing the rationality of private comprehensive doctrines, of critiquing ideological consciousness, and the like, they abstract the modern moral worldview away from the particular comprehensive doctrines they are uniquely embedded in and press forward by using it as the material out of which to fashion the procedure of construction. What I have argued is that this abstractive move empties the political conception of justice of content in a way that is apparent only when we move from stages of theory construction to applicative stages, where power and contingency return with a vengeance, as different individuals will have different views (shaped by their unique comprehensive doctrines) about what the political conception of justice means in practice, and the political conception of justice itself cannot mediate their disagreements. More generally, it does seem fair to say that there is a strong counterfactual imagination at work in Rawls. We are asked to assume a series of “as if ” propositions that abstract away from the ways in which beliefs about justice, and practices of determining and applying it, are linked to contexts shaped by power and contingency: we are asked to look upon our constitutional structure as if it were the design of reasonable persons like us who were already in accord with each other, and with us, concerning principles of justice, though of course the reality is quite different. It is at any rate possible that the prevalence of a Rawlsian attitude might incline us to see our social arrangements as if they were shaped far more by will and reason than by power and contingent history; and theoretical Rawlsianism, I have argued, is unable to reconcile opposed (though still reasonable) comprehensive doctrines, as it holds out the promise of employing the political conception of justice to mediate reasonable disagreements, but ultimately proves unable to do so. The question of whether Habermas is similarly ill equipped to come to terms with the way in which communicative practices are entangled with contingency and power is a difficult one that I can only comment on briefly here. Certainly, many critics have thought Habermas to be guilty on this count. He is said to believe in an “ideal speech situation,” in which only

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“the unforced force of the better argument” rules, and then proceeds to model his moral and political theories on such an idealization. It is then pointed out that no such thing could be possible in the social world that we are acquainted with, that Habermas systematically marginalizes the role of power, interests, and contingency in social relations, potentially blinding his theory’s adherents to the prevalent effects of those forces. A less pointed way of making this criticism would be to say that seeking to orient human social life around a fantastical, unrealizable ideal is simply not a productive enterprise. Habermas, however, has largely abandoned the motif of an “ideal speech situation” in favor of “idealizing presuppositions.”9 His reasons for doing so are mostly rhetorical: the term “ideal speech situation” suggested some kind of social-historical goal on the order of Kant’s kingdom of ends—a domination-free communicative utopia. But although Habermas clearly does hold that the tools of discourse theory may be used to criticize actually existing democracies and social pathologies, he denies that something like an ideal speech situation could be used to delineate a form of life (PT, 145–46). It seems, then, that Habermas’s political theory is not teleological in any straightforward sense. He is not suggesting that we conceptualize progress in terms of movement toward a condition whereby social integration takes place entirely through consensus achieved under transparent conditions of communication. For that matter, as discussed in Chapter 4, Habermas rejects as too transcendental Apel’s view that there is a rationally grounded, moral imperative to pursue a social condition that is maximally integrated through communicatively achieved mutual understanding. For all of that, however, Habermas’s thought does strongly suggest that the critical stance requires us to make a distinction between social relations that are based on reason and communication, and those that are sustained by power, which in turn implies that reason has a “force” of its own, and that instances of mutual understanding free from the taint of power are theoretically possible. For as much as Habermas insists that “the purism of pure reason is not resurrected in communicative reason,”10 one wonders whether he protests too much. Is Habermas’s theory not ultimately oriented around the idea of critically evaluating social reality from an idealized perspective wherein norms are established through transparent mutual understanding, and where only the force of reason prevails? How does this not involve some kind of otherworldly purism? However we end up evaluating this question for Habermas’s philosophy as a whole (which does, after all, span several subfields), his political



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theory is an excellent place to begin developing a version of Habermasian critical theory in a way that more productively engages theorists emphasizing the impurity of reason, and the centrality of power and contingency in human life. I have argued that we need to underline the importance of law in both Rawls’s and Habermas’s post/nonmetaphysical philosophies. Habermas has suggested that we regard constitutions as schemes of principles and legal procedures that make the communicative production of legitimate law possible. Many legal theorists become, at this point, mesmerized by foundational questions about where the power of a constitution (itself a piece of positive law) to confer legitimacy onto ordinary positive law comes from. Habermas, however, demurs on this sort of question; the normative authority of basic law does not issue forth from some ultimate set of natural law principles, or an originary moment of popular sovereignty. Rather, Habermas suggests, we should regard the constitutional scheme that we find ourselves with as representing reasonable answers to the question of how mutual understanding among free and equal legal consociates is possible. Or, it might be better to say that we are provisionally compelled to regard it this way, at least when we are actively engaged in the effort to produce law that can claim legitimacy. However, any particular constitutional order will have a contingent origin, and often a quite compromised one, which we ought not to be blind to. We press forward using the terms set by a particular constitutional order not because we think of ourselves as drawing on some ultimate set of moral principles beyond the reach of power, but because we need an established procedural framework in order to make law, and this is the one that we happen to have. Rather than becoming a form of legal pragmatism, Habermas’s position implies that the constitutional order is more than just a tool we happen to possess for the communicative production of law and more like the vehicle within which a political community develops its historical project of a union of free and equal citizens. And while citizens of critical mind must question how and whether their constitutional frameworks concretely satisfy the presuppositions for mutual understanding through law, there is no higher moral point of view for them to occupy in order to make objective determinations about what kind of legal order reason demands that they should have. Since, in the system of rights, the universal must be made concrete through positive law, we have no ability to straightforwardly measure the concrete against the universal. Hence, Habermas can be read as denying that we are capable of conceptualizing progress by thinking of a constitutional project as a journey toward a state where the positivity of law, the

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contingency of origins, has been fully overcome.11 What I take to be the best interpretation of Habermas concedes that power in the form of positivity continually reasserts itself through communicative structures like law, and can very well threaten to overwhelm the communicative moment. This tendency is built into the very Janus-faced structure of modern law—law is both a coercive social fact and a freely self-authored norm—and those concerned with the ongoing possibility of shaping social reality through reason and mutual recognition must remain vigilant in the face of it. What this suggests is an agenda for postmetaphysical political philosophy, whether Rawlsian, Habermasian, or other, that gives equal weight to the reconciliatory and critical moments of reason, one that not only displays an interest in highlighting the prospects for consensus and mutual understanding but is also attentive to the ways that consensus and mutual understanding can prove illusory, or harden when embedded in the legal form, deadening communication and masking disagreement. Certainly, the reputation of Rawls and Habermas is of philosophers who amplify the role of reason and consensus in human life, and who are therefore staunchly opposed to those who see power as ineluctably prevalent in social life. I hope to have shown that this opposition need not be so stark. Obviously, I consider Habermas’s thought to be closer to striking an appropriate balance between these reconciliatory and critical moments. The possibility of doing something similar within the methodological framework of Rawlsianism is not one that I take myself to have foreclosed and it is to be hoped that there are conceptual resources within that paradigm that have yet to be explored. For political philosophy at its best is joined to both the aspirations and struggles of actual groups and persons, while allowing its practitioners a broad perspective on and critical distance from the societies they inhabit; the effort to combine these elements in thought is not the heritage of any one philosophical camp, but of those who continue to hope that the realization of rationality and the realization of justice are integrally connected.

reference matter

Notes

introduction 1. See Jürgen Habermas, “The New Obscurity: The Crisis of the Welfare State and the Exhaustion of Utopian Energies,” in The New Conservatism: Cultural Criticism and the Historians’ Debate, ed. and trans. Shierry Weber Nicholsen (Cambridge, MA: MIT Press, 1989), 48–70. 2. This is the lens through which Christian Rostbøll analyzes Rawls and Habermas. See his valuable Deliberative Freedom: Deliberative Democracy as Critical Theory (Albany, NY: SUNY Press, 2008). In a similar vein, Simone Chambers discusses the different theoretical bases for deliberative procedures in ethics and politics offered by Habermas, mainly, but also Rawls and T. M. Scanlon, in her Reasonable Democracy: Jürgen Habermas and the Politics of Discourse (Ithaca, NY: Cornell University Press, 1996). See also James Bohman, Public Deliberation: Pluralism, Complexity, and Democracy (Cambridge, MA: MIT Press, 1996); and Samuel Freeman, “Deliberative Democracy: A Sympathetic Comment,” Philosophy and Public Affairs 29, no. 4 (2000): 371–418. 3. Rawls identifies Hegel with a reconciliatory paradigm of political thought. See Lectures on the History of Moral Philosophy, ed. Barbara Herman (Cambridge, MA: Harvard University Press, 2000), 10, and Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, MA: Harvard University Press, 2007), 331–36. For a Rawls-inspired reading of Hegel that emphasizes the theme of reconciliation, see Michael Hardimon, ­­­Hegel’s Social Philosophy (New York: Cambridge University Press, 1994). 4. For Rawls, “metaphysics,” in addition to being a very general term, is also a rather loosely defined one, as he acknowledges. See CP, 403–4, note 22. The idea seems to be that metaphysics involves normative claims that aim at truth—for example, claims about how the social world ought to be, regardless of whether those claims seem likely to meet with the reasoned agreement of others, or whether they generally cohere with the moral intuitions of our culture. This is not to say that metaphysical notions need be counterintuitive, just that metaphysical thinking regards the reasonable agreement of others and the like as ultimately irrelevant to its validity.

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Notes to the Introduction 5. See, in particular, Rawls’s claim that utilitarianism “does not take seriously the distinction between persons” (TJ, 27–33). 6. Part of the communitarian backlash against Rawls during the 1980s, however, takes issue precisely with this point and contends that Rawls remains tacitly committed to a dubious atomistic metaphysics of the individual. See Michael Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982). 7. For a clear statement of this thesis, see Max Horkheimer, Eclipse of Reason (New York: Continuum, 2004), chapter 1. 8. See Habermas, “The Entwinement of Myth and Enlightenment: Re-Reading Dialectic of Enlightenment,” New German Critique 26, no. 2 (1982): 13–30. 9. For an early account of the basic difference and irreducibility between rationality aimed at the control of nature and rationality aimed at the achievement of mutual understanding between agents, see Habermas, “Technology and Science as Ideology?” in Toward a Rational Society, trans. Jeremy Shapiro (Boston, MA: Beacon Press, 1970), 81–122. 10. See Seyla Benhabib, Critique, Norm, and Utopia (New York: Columbia University Press, 1986); Axel Honneth, “From Adorno to Habermas: On the Transformation of Critical Theory,” in The Fragmented World of the Social, ed. Charles W. Wright (Albany, NY: SUNY Press, 1995), 92–120; and Peter Uwe Hohendahl, “From the Eclipse of Reason to Communicative Rationality and Beyond,” in Critical Theory: Current and Future Prospects, ed. Hohendahl and Jaime Fisher (New York: Berghahn, 2001), 3–28. 11. See Raymond Geuss, Outside Ethics (Princeton: Princeton University Press, 2005), chapters 1–2. 12. This is increasingly manifest in the Adorno revival now underway, as well as among critical theorists more inspired than is Habermas by French post-structuralism. See, for example, J. M. Bernstein Recovering Ethical Life: Habermas and the Future of Critical Theory (New York: Routledge, 1995), and Adorno: Disenchantment and Ethics (New York: Cambridge University Press, 2001); Espen Hammer, “Habermas and the Kant-Hegel Contrast,” in German Idealism: Contemporary Perspectives, ed. Hammer (New York: Taylor and Francis, 2007), 113–34, and Adorno and the Political (New York: Routledge, 2005); Nikolas Kompridis, Critique and Disclosure: Critical Theory between Past and Future (Cambridge, MA: MIT Press, 2006). 13. See PT, 28–53. 14. See Niklas Luhmann, Social Systems (Stanford, CA: Stanford University Press, 1996). 15. On the notion of context-transcendence in political theory, see Maeve Cooke, Re-Presenting the Good Society (Cambridge, MA: MIT Press, 2006), chapter 1. 16. See Wayne Norman, “‘Inevitable and Unacceptable?’: Methodological Rawlsianism in Anglo-American Political Philosophy,” Philosophical Studies 46 (1998): 276–94. 17. Jeremy Waldron, “Introduction,” in Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man, ed. Waldron (New York: Methuen, 1987), 2. 18. See also TJ, 580 and following. 19. Norman, “‘Inevitable and Unacceptable?’” 282.



Notes to the Introduction and Chapter 1

20. Habermas’s version of critical theory is not alone in being vulnerable to the charge of being vague and cagey in its practical prescriptions. See Chambers, “The Politics of Critical Theory,” in The Cambridge Companion to Critical Theory, ed. Fred Rush (New York: Cambridge University Press, 2004), 219–47. 21. For a more general overview of Rawls’s work and development, see Freeman’s introduction to The Cambridge Companion to Rawls, ed. Samuel Freeman (New York: Cambridge University Press, 2003), 1–61, and his extensive and excellent Rawls (New York: Routledge, 2007). See also Robert B. Talisse, On Rawls: A Liberal Theory of Justice and Justification (Belmont, CA: Wadsworth, 2001); for a more unorthodox, but compelling view of Rawls’s overall project, see Anthony Laden, “The House that Jack Built: Thirty Years of Reading Rawls,” Ethics 113, no. 2 (2003): 367–90. For the purposes of a general introduction, there is also Rawls’s own Justice as Fairness: A Restatement, which is based on lecture courses given by him at Harvard; it incorporates, and to some extent synthesizes, the main themes from Theory and Political Liberalism. General introductions to Habermas’s work are harder to come by, given the long development and topical breadth of his project. Thomas McCarthy’s The Critical Theory of Jürgen Habermas (Cambridge, MA: MIT Press, 1978) remains the authoritative account of what we would now regard as Habermas’s earlier theory—that is, up to Theory of Communicative Action. Stephen K. White’s The Recent Work of Jürgen Habermas: Reason, Justice, Modernity (New York: Cambridge University Press, 1987) focuses on Theory of Communicative Action and some of the developments in the 1980s. For an excellent account of how Habermas’s communication theory grows out of earlier versions of critical theory, see Benhabib, Critique, Norm, and Utopia. There are a number of summaries of the argument in Between Facts and Norms, including William Rehg’s fine translator’s introduction to that work. See also Kenneth Baynes, “Democracy and the ‘Rechtstaat’: Habermas’ Faktizität und Geltung,” in The Cambridge Companion to Habermas, ed. Stephen White (New York: Cambridge University Press, 1995); and Habermas’s own 1994 “Postscript” to Between Facts and Norms, and IO, 239–64. 22. See CES, 1–68. For a good commentary on this material, see Cooke, Language and Reason: A Study of Habermas’ Pragmatics (Cambridge, MA: MIT Press, 1994).

1. freestanding political philosophy 1. This corresponds to Rawls’s notion of political autonomy. See PL, 98 and following. 2. Throughout, I will be using the terms “freestanding” and “political” interchangeably, but some technical differences are worth noting here at the outset. For Rawls, a “political” theory is one with the practical intent of articulating an agreement about political justice, applied to the basic structure of society and that society’s “constitutional essentials.” Rawls attempts to accomplish this practical aim by rendering his theory in a freestanding manner—that is, by rendering it independently of any particular comprehensive doctrine or controversial philosophical or metaphysical premises. See JF, 19, 26–29.

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Notes to Chapter 1 3. According to David Rasmussen, this is the basic dilemma that Rawls sets up for Habermas. See his “Accommodating Republicanism,” Denver University Law Review 76, no. 4 (1998): 955–60. 4. On the fact of reasonable pluralism (as opposed to mere pluralism), Rawls cites Joshua Cohen, “Moral Pluralism and Political Consensus,” in The Idea of Democracy, ed. David Copp, Jean Hampton, and John E. Roemer (New York: Cambridge University Press, 1993). 5. See Richard Rorty, “The Priority of Democracy over Philosophy,” in The Virginia Statute of Religious Freedom: Two Hundred Years After, ed. M. Peterson and R. Vaughan (Cambridge, MA: Cambridge University Press, 1988), 161–76. See also Stanley Fish, “Truth but No Consequences: Why Philosophy Doesn’t Matter,” Critical Inquiry 29, no. 3 (2003): 389–417. 6. Not coincidentally, my own criticisms of Rawls bear some resemblance to the criticisms of Rorty’s attempt to bid farewell to philosophy that have come from the critical theory tradition. See Richard Bernstein, “One Step Forward, Two Steps Back: Richard Rorty on Liberal Democracy and Philosophy,” Political Theory 15, no. 4 (1987): 538–63; McCarthy, Ideals and Illusions: On Reconstruction and Deconstruction in Contemporary Critical Theory (Cambridge, MA: MIT Press, 1991), chapter 1; and Cooke, Re-Presenting the Good Society, chapter 2. 7. “As far as possible, the knowledge and ways of reasoning that ground our affirming the principles of justice and their application to constitutional essentials and basic justice are to rest on the plain truths now widely accepted, or available, to citizens generally” (PL, 225, see also 162). 8. Immanuel Kant, Critique of Pure Reason, trans. Paul Guyer and Allen W. Wood (New York: Cambridge University Press, 1997), A738–39/B766–67. 9. “Many if not most citizens may want to give the political conception a metaphysical foundation as part of their own comprehensive doctrine; and this doctrine (I assume) includes a conception of the truth of moral judgments” (PL, 126). 10. See, however, Habermas, Religion and Rationality: Essays on Reason, God, and Modernity, ed. Eduardo Mendieta (Cambridge, MA: MIT Press, 2002). 11. See, for example, Habermas’s exchange with Cardinal Joseph Ratzinger (now Pope Benedict XVI), Dialectics of Secularization: On Reason and Religion, ed. Florian Schuller, trans. Brian McNeil, C.R.V. (San Francisco: Ignatius Press, 2006). 12. Charles Larmore, “The Moral Basis of Political Liberalism,” Journal of Philosophy 96, no. 12 (1999): 616. Rainer Forst makes a similar point when he observes that Habermas’s claims about the “postmetaphysical” status of his philosophy represent not only a contentious philosophical position but also a comprehensive position that is controversial vis-à-vis other comprehensive doctrines. See “Die Rechtfertigung der Gerechtigkeit: Rawls’s Politscher Liberalismus und Habermas’ Diskustheorie in der Diskussion,” in Das Recht der Republik, ed. Hauke Brunkhorst and Peter Niesen (Frankfurt am Main: Suhrkamp, 1999), 112–26. 13. Habermas’s worry here may be connected to his reservations about earlier versions of Frankfurt critical social theory. As it appears to him that the position that Adorno and Horkheimer stake out in Dialectic of Enlightenment suggests that any trace of emancipatory reason has been all but entirely wiped out by the develop-



Notes to Chapter 1

ment of merely calculative instrumental reason, it would seem that reason could no longer be a thing of this world, making it hard to see how a critique of the modern world from the standpoint of emancipatory reason could be justified. Hence, in Theory of Communicative Action, Habermas wants to articulate a “social theory concerned to validate its own critical standards” (TCA 1, xli). 14. See G. A. Cohen, If You’re an Egalitarian, How Come You’re So Rich? (Cambridge, MA: Harvard University Press, 2000), chapters 8–9. For a rejoinder, see J. Cohen, “Taking People as They Are?” Philosophy and Public Affairs 30, no. 4 (2002): 363–86. 15. See Chambers, “The Politics of Equality: Rawls on the Barricades,” Perspectives on Politics 4 (2006): 81–89. 16. Habermas is one prominent proponent of this line of criticism, by suggesting that Rawls’s use of the overlapping consensus test blurs the line between rational acceptability and actual acceptance. See IO, 49–73. For a sampling of some other forms of this interpretation, see Kurt Baier, “Justice and the Aims of Political Philosophy,” Ethics 99, no. 4 (1989): 771–90; Jean Hampton, “Should Political Philosophy Be Done without Metaphysics?” Ethics 99, no. 4 (1989): 791–814; Joseph Raz, “Facing Diversity: The Case for Epistemic Abstinence,” Philosophy and Public Affairs 19, no. 1 (1990): 3–31; Chandran Kukathas and Philip Pettit, Rawls: A Theory of Justice and Its Critics (Stanford, CA: Stanford University Press, 1990), 142–50; John Exdell, “Feminism, Fundamentalism, and Liberal Legitimacy,” Canadian Journal of Philosophy 24, no. 3 (1994): 441–64; Sheldon Wolin, “The Liberal/Democratic Divide: On Rawls’ Political Liberalism,” Political Theory 24, no. 1 (1996): 95–119; George Klosko, Democratic Procedures and Liberal Consensus (New York: Oxford University Press, 2000), 183–207; Michael Baur, “Reversing Rawls: Criteriology, Contractualism and the Primacy of the Practical,” Philosophy and Social Criticism 28, no. 3 (2002): 251–96; and G. A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008). 17. G. A. Cohen, Rescuing Justice and Equality, part 2. For a Rawlsian rejoinder, see David Miller, “Political Philosophy for Earthlings,” in Political Theory: Methods and Approaches, ed. David Leopold and Marc Stears (New York: Oxford University Press, 2008), 29–48. 18. As G. A. Cohen puts his thesis: “[A] principle can reflect or respond to a fact only because it is also a response to a principle that is not a response to a fact. To put the same point differently, principles that reflect facts must, in order to reflect facts, reflect principles that don’t reflect facts” (Rescuing Justice and Equality, 232; italics in original). 19. Ibid., 236. 20. See ibid., 248–50. 21. Ibid., 265. 22. See Raz, “Facing Diversity.” 23. See Baur, “On Actualizing Public Reason,” Fordham Law Review 72, no. 5 (2004): 2153–75. 24. Previously, Rawls had held that categorical opposition to legalized abortion ought to be considered unreasonable. (Compare PL, 243, note 32.) 25. And, indeed, that is roughly the method the majority authors in both Roe

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Notes to Chapters 1 and 2 v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 883 (1992) employ, offering some support to Rawls’s claim that the U.S. Supreme Court issues its decisions in the language of public reason (PL, 231 and following). 26. I am drawing here on Alessandro Ferrara’s instructive discussion of the “sharedness” problem and Rawls’s treatment of the abortion question in his “Public Reason and the Normativity of the Reasonable,” Philosophy and Social Criticism 30, no. 6 (2004): 583–86. See also Ronald Dworkin’s brief but suggestive remarks on this topic in “Rawls and the Law,” Fordham Law Review 72 (2004): 1397–99.

2. the rawlsian apparatus of justification 1. Rorty’s interpretation of Rawls, for example, is to some extent in line with my sketch of the descriptivist critique, yet Rorty celebrates these moves as Rawls’s realization that philosophy has nothing to offer to the defense of what we find valuable in our political practices and institutions. See Rorty, “The Priority of Democracy over Philosophy.” 2. For an account of the contents of wide reflective equilibrium, see Norman Daniels, Justice and Justification: Reflective Equilibrium in Theory and Practice (New York: Cambridge University Press, 1996), 47–65. Although this essay deals primarily with Theory, and not later writings, Rawls did not significantly modify his views on the method or content of reflective equilibrium, only its role in his theory. 3. See Laden, “The House that Jack Built,” 385. 4. In this regard both Baier and Hampton overestimate the degree to which Rawls thought that the liberal political philosopher ought to be a public advocate for justice as fairness. See Baier, “Justice and the Aims of Political Philosophy”; and Hampton, “Should Political Philosophy Be Done without Metaphysics?” A more adequate account is given by Paul Weithman, “Liberalism and the Political Character of Political Philosophy,” in The Liberalism-Communitarianism Debate, ed. C. F. Delany (Rowman and Littlefield, 1994), 189–212. Weithman distinguishes between “political theory,” which gives an account of the process of justification as it takes place, and “comprehensive public philosophy,” which cautiously attempts to intervene among comprehensive doctrines held by citizens and to offer reasons that might nudge them toward justice as fairness. Political theory would tell us when we could say that the actual justification of a conception of justice has taken place, and therefore refers roughly to what I am calling the three levels of justification. Comprehensive public philosophy would therefore correspond to the three standpoints—it would use the devices of the original position and the well-ordered society to offer reasons why reasonable citizens ought to adopt justice as fairness. 5. As Laden writes: “[Rawls] devotes nearly four hundred pages in Political Liberalism to showing that it would be possible for reasonable citizens of faith to support a just democratic regime because he is much more keenly aware than most defenders of liberal democracy that it might very well turn out that they cannot. Readers who think that Rawls is begging his own question by limiting himself to finding common ground among reasonable citizens fail to see just how hard it is even to do that.” See “The House that Jack Built,” 381.



Notes to Chapter 2

This is a weaker rendering of the Rawlsian problematic than the one given by Norman Daniels: “[Rawls] is not worried about the traditional skeptic, who asks, ‘Why should I be just rather than pursue my own rational advantage?’ Rather he has in mind the moral person who will say, ‘Why should I be just, since justice is not as important as salvation’ or ‘why should I be just, since justice is not as important as establishing a caring community?’” Justice and Justification, 147. Here is the difference: Laden maintains that Rawls is targeting the citizen who is already committed to justice and liberal democracy but wonders about the possibility of a just and legitimate regime, whereas Daniels claims that Rawls’s intended audience are citizens with moral interests, but whose moral interests might not lead them consistently to uphold justice (conceived in liberal terms, involving respect for individual rights, tolerance, and so forth). That is, these citizens have a sense of justice, and a conception of the good, but they are not necessarily reasonable, in that their sense of justice does not always take priority over their conception of the good. Daniels highlights the stability problem from part 3 of Theory—that is, the problem of whether an institutionalized public conception of justice can successfully command the loyalty of diverse citizens over time, by inculcating in them a consistently effective sense of justice. Laden is pointing to the audience of concerned citizens who are committed to promoting and abiding by fair terms of cooperation, but who also want to know whether the idea of liberal legitimacy and public justification is coherent in light of the fact of reasonable pluralism. In my view, Laden’s reading does a better job of identifying the intended audience of Rawls’s work; after all, Rawls never really attempts to demonstrate at any length why justice is important, beyond pointing to its necessity as a result of the Humean “circumstances of justice” (TJ, 126–30/109–12), and by the time of Political Liberalism, he judges his solution to the stability problem in part 3 of Theory to be incompatible with the fact of pluralism, and hence inadequate. In his later work, Rawls is more content to leave it to reasonable people to decide for themselves whether and how justice as fairness is congruent with their conception of the good, and he basically assumes that reasonable people consistently accept the priority of justice over the good. Larry Krasnoff argues that critics of Rawls’s political turn often conflate these questions about consensus and stability, that they are (as we have just seen) distinct, and that the consensus Rawls seeks is a principled response to a practical problem that reasonable people are faced with. See his “Consensus, Stability, and Normativity in Rawls’ Political Liberalism,” Journal of Philosophy 95, no. 6 (1998): 269–92. Krasnoff contends, in effect, that making this distinction inoculates Rawls against the descriptivist critique; as I see it, however, it protects Rawls from the variant of that critique that charges him with being crassly political, turning political philosophy into a form of public advocacy, but not the more serious questions stemming from the dependence of the public on the private that Rawls sets up. 6. According to Daniels: “The key ideas out of which justice as fairness (or other alternative reasonable political conceptions of justice) are constructed, for example, the idea that citizens are free and equal, are now taken to be shared elements of our political life, that is, of public, democratic culture[.] . . . In effect, it is not philosophy alone—aided by universal reason—that has led people to converge on these ideas but a shared set of institutions and history.” See Justice and Justification, 148.

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Notes to Chapter 2 7. Ibid., 160–61. 8. Rawls makes it clear that the duties associated with public reason are binding only on these matters, but that nevertheless, it may be desirable for citizens to use public reason more broadly: “I grant that it is usually highly desirable to settle political questions by invoking the values of public reason. Yet this may not always be so” (PL, 215). 9. This supports Habermas’s complaint that this division of labor basically renders the achievement of an overlapping consensus a lucky coincidence. See IO, 84. 10. “[J]ustification is addressed to others who disagree with us, and therefore it must always proceed from some consensus, that is, from premises that we and others publicly recognize as true; or better, publicly recognize as acceptable to us for the purpose of establishing a working agreement on the fundamental questions of political justice” (CP, 394). 11. Rawls does, after all, claim that social interaction on such a transparent basis is a good worth pursuing for its own sake. See TJ, 440–42/386–88; PL, 318. 12. Rostbøll makes a similar point. See Deliberative Freedom, 109–32. 13. See IO, 83–86. 14. Some commentators have honed in on this issue in order to observe that Rawls’s conception of public reason is, in an important way, quite at odds with that of Kant: Kant’s point is that reason is, by its nature, public, and that there is no legitimate limitation to be put on the issues that can or cannot be put before the tribunal of reason. See Kant, “An Answer to the Question: What Is Enlightenment?” in Practical Philosophy ed. and trans. Mary Gregor (New York: Cambridge University Press, 1996), 11–22. Baur makes this point in “On Actualizing Public Reason,” 2153–5. 15. See Baynes, “Practical Reason, ‘the Space of Reasons,’ and Public Reason,” in Pluralism and the Pragmatic Turn, ed. James Bohman and William Rehg (Cambridge, MA: MIT Press, 2001), 78. 16. See Wolin, “The Liberal/Democratic Divide,” 96–99. 17. See Bruce W. Brower, “The Limits of Public Reason,” Journal of Philosophy 91, no. 1 (1994): 5–26. 18. Or so it would seem—perhaps I underestimate the importance of reflective equilibrium in the argument of Theory. See Laden, “The House that Jack Built.” Although Laden acknowledges that certain things that Rawls says in Theory might lead us to believe that the important part of that book is the rational choice argument from the original position, in fact, it is better read as relying heavily upon reflective equilibrium, with the original position being just “a handy way” of organizing its results. 19. Benhabib, “The Methodological Illusions of Modern Political Theory: The Case of Rawls and Habermas,” Neue Hefte für Philosophie 21 (Spring 1982), 55. 20. As Dworkin convincingly argues, the fact that Rawls describes the method of reflective equilibrium in such a way that at least sometimes recommends modifying or abandoning our initial judgments about justice rules out a scientific model of reflective equilibrium in favor of an interpretive one. See Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 159–68. 21. The term “moral theory” comes from Rawls’s later, 1975 paper “The Inde-



Notes to Chapter 2

pendence of Moral Theory,” (CP, 286–302), but he intends it to characterize a general way of proceeding that captures what he was after in Theory. 22. According to Gilbert Harman, the method of reflective equilibrium has become the mainstream way of proceeding in moral theory over the last few decades. See “Three Trends in Moral and Political Philosophy,” Journal of Value Inquiry 37, no. 3 (2003): 415–25. 23. Scanlon, “Rawls on Justification,” 149. 24. David Lyons, “Nature of Soundness of Contract and Coherence Arguments,” in Reading Rawls, ed. Norman Daniels (New York: Basic Books, 1975), 141–67. 25. Raz, “The Claims of Reflective Equilibrium,” Inquiry 25, no. 3 (1982): 318. See also D. W. Haslett, “What Is Wrong with Reflective Equilibria?” Philosophical Quarterly 37, no. 3 (1987): 305–11. 26. See Raz, “Facing Diversity.” 27. Rawls’s account of “moral theory” in “The Independence of Moral Theory” often makes it seem neutral and descriptive: “[O]ne thinks of the moral theorist as an observer, so to speak, who seeks to set out the structure of other people’s moral conceptions and attitudes” (CP, 288). Scanlon refers to this as “the descriptive interpretation” of reflective equilibrium in “Rawls on Justification.” See also TJ, 40/46. 28. Rawls does not mount much of a defense of these empirical claims. And I take it that they are fairly uncontroversial. Some, however, have wondered how well articulated these ideals are among individuals, as well as how deeply they are committed to them. The philosophical anthropology that Charles Taylor has undertaken lends some credence to Rawls’s assumptions. On freedom and equality, see Sources of the Self (Cambridge, MA: Harvard University Press, 1989), esp. part 3; on the idea of society as a system of cooperation, see Modern Social Imaginaries (Durham, NC: Duke University Press, 2004). It might be suggested, however, that these core moral and political intuitions are actually just the facile assumptions of mainstream political culture from which women and minorities may be alienated. On this, see Terrence Kelly, “Sociological Not Political: Rawls and the Reconstructive Social Sciences,” Philosophy of the Social Sciences 31, no. 1 (2001): 3–19. Klosko criticizes Rawls’s empirical assumptions on different grounds, by noting that Rawls never says much about how deeply held these intuitions are, and that empirical research on the matter indicates more of procedural consensus (among Americans, at any rate) about acceptable ways to settle conflicts, rather than a substantive commitment to explicit ideals of freedom and equality that might support the egalitarian impulse in Rawls’s argument. See Klosko, Democratic Procedures and Liberal Consensus. 29. It is true that Rawls does offer a speculative account about how the development of an overlapping consensus around justice as fairness, which he sketches in lecture 4 of Political Liberalism (158–68), might come about. Whatever one thinks about the plausibility of this sketch, all it can claim to show is that such a development is possible—certainly not fated, or even likely. 30. This disarms the criticism that Klosko intends when he cites empirical data that shows some disconnect between the actual attitudes of American citizens and Rawls’s principles of justice. See Democratic Procedures and Liberal Consensus. Rawls does not end his argument with an empirical claim about the possibility or likeli-

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Notes to Chapter 2 hood of a reasonable overlapping consensus on political justice, and displays some awareness of the present lack of fit between his views about justice and those of the broader public. 31. This is where I part company with Laden’s otherwise compelling interpretation of Rawls in “The House that Jack Built,” as he thinks that the original position argument amounts to a persuasive, but ultimately disposable, presentation of the two principles. Although I agree that critics have overestimated the role of the original position argument, if they take the entire Rawlsian argument to depend on it in a foundational way, it is nevertheless important for Rawls that there be some procedure of construction that both models and extends the intuitions of reflective equilibrium. 32. Baynes argues that there is a deep tension in Rawls’s work between the relativistic justifications suggested by his political turn and a more Kantian account that seeks to situate justice as fairness in an account of practical rationality. “Constructivism and Practical Reason in Rawls,” Analyse und Kritik 14, no. 1 (1992): 18–32. Although sensitive readers of Rawls will certainly detect tension between Rawls’s more relativistic moments (associated with reflective equilibrium and the overlapping consensus) and his more Kantian moments (associated with constructivism and the two moral powers), Rawls’s claim in Political Liberalism that political constructivism represents and extends the contents of reflective equilibrium suggests that he is aware of this tension but regards it as constitutive for his theory of justification as a whole, and not ultimately irresolvable. 33. Rawls’s conception of moral objectivity is connected to the sense of objectivity that he sees attaching to moral judgments resulting from Kant’s categorical imperative, where he contrasts the sense of moral objectivity countenanced by Kant with the mode of objectivity advanced by “rational intuitionism,” where objective moral judgments are ones that discover moral facts. See Lectures on the History of Moral Philosophy, 243–47. 34. Habermas, among others, draws this conclusion from Theory. See IO, 52. For Rawls’s mea culpa, see CP, 401 note 20. He points to TJ, 16 and 583, as the culprit passages. 35. This discussion of the problems that Rawls runs up against when trying to eliminate commonly held intuitions about justice that are contrary to those embodied in justice as fairness is indebted to Kelly, “Sociological Not Political.” 36. And it may be false. Kelly, ibid., cites Roland Barthes’s studies to demonstrate the persistence of intuitions that link justice with the achievement of substantive values—for example, the triumph of good over bad. To contrast with this, he cites studies by Lind and Tyler that indicate the prominence of procedural intuitions about justice in much of the Western world. See Barthes, Mythologies, trans. Annette Lavers (New York: Noonday Press, 1972); and Allen E. Lind and Tom Tyler, The Social Psychology of Procedural Justice (New York: Plenum Press, 1988). Kelly argues that Rawls’s stricture against the use of complex methodologies for use in political philosophy and argumentation prevents him from accessing the sorts of social scientific work (like Lind’s and Tyler’s) that could support his selective development of our society’s reflective equilibrium. See also Klosko, Democratic Procedures and Liberal Consensus, 42–80.



Notes to Chapters 2 and 3

37. See also PL, 107: “Constructivism does not proceed from practical reason alone but requires a procedure that models conceptions of society and person. But what conceptions are appropriate and how do they arise? The general answer is this: the principles of practical reason—both reasonable principles and rational principles—and the conceptions of society and person are complementary. Just as principles of logic, inference, and judgment would not be used were there no persons who could think, infer, and judge, the principles of practical reason are expressed in the thought and judgment of reasonable and rational persons and applied by them in their social and political practice[.] . . . [We] may call the conceptions of society and person ‘conceptions of practical reason’: they characterize the agents who reason and they specify the context for the problems and questions to which principles of practical reason apply.” 38. This appears to be Kelly’s conclusion. See “Sociological Not Political,” 17–19.

3. rawls between metaphysics and proceduralism 1. Kant, for example, holds that rational beings are committed to the categorical imperative, not because the categorical imperative is an apt procedure for drawing out the moral judgments of rational beings, but because the categorical imperative constitutes the very form of reason applied to action. Since even the most Kantian formulation of Rawls’s program must acknowledge that, on Kant’s terms, Rawls’s thought is heteronomous, in the sense that it takes reasonableness and the broad intuitions of the modern moral worldview for granted, Rawls’s version of the bindingness of the original position must be considerably weaker. See PL, 99–100 and Lectures on the History of Moral Philosophy, 226–30. 2. Baynes, The Normative Ground of Social Criticism: Kant, Rawls and Habermas (Albany, NY: SUNY Press, 1992), 71–76. 3. See Scanlon, “Rawls on Justification,” 141–42; and Daniels, Justice and Justification, 66–80. 4. See Dworkin, Taking Rights Seriously, 150–83. 5. Ibid., 158. 6. Dworkin calls these the more and less profound readings, respectively, and says that his interpretation is compatible with either. Ibid., 158–59. In light of later developments in his theory, the less profound reading seems more plausible as an interpretation of Rawls. 7. Dworkin downplays the suspicion that natural rights are a metaphysical curiosity by saying that “natural” need only be taken to mean that the objectively best political program is one that takes human beings to possess rights merely insofar as they are human. Ibid., 176–77. 8. Ibid., 178. 9. Larmore, The Morals of Modernity (New York: Cambridge University Press, 1996), 146. See also Larmore, “Public Reason,” in Freeman, ed., The Cambridge Companion to Rawls, 369–75. 10. See Larmore, The Morals of Modernity, 134–41. 11. Larmore, “The Moral Basis of Political Liberalism,” 605. 12. Ibid., 608.

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Notes to Chapter 3 13. Ibid., 609. 14. Larmore acknowledges this lack of fit. See ibid., 609. 15. Larmore basically deflects this question, by contending that the principle of equal respect has the look of an ultimate principle, since it is so fundamental to our moral thinking, and that therefore the burden of proof lies with those that would deny it. See The Morals of Modernity, 150. But the question is not so much whether anyone could actually give good reasons for rejecting the principle of equal respect, but whether a good argument can be given for characterizing that principle as intuited and prepolitical—and that it and it alone is the foundational principle for articulating a conception of justice. He may be correct about the soundness of the principle of equal respect as a moral principle, but I see no argument addressing the latter issues, which are the crucial ones for our purposes. 16. See Dworkin, Taking Rights Seriously, 81–130, and Law’s Empire (Cambridge, MA: Harvard University Press, 1986), 239 and following. 17. See Dworkin, Taking Rights Seriously, 331 and following. 18. See Dworkin, Law’s Empire, 176–224. 19. As Dworkin argues, the value of integrity is to some extent distinct from the values of justice and fairness. See Law’s Empire, 178 and following. But the disconnect between integrity and justice cannot be too great in a sound legal system, so he also wants to claim that such a sound legal system, as he takes the American constitutional system to be, is correctly interpreted in light of true moral principles. Dworkin believes that the relevant true moral principles are egalitarian principles of right. On Dworkin’s unique combination of deontology and hermeneutics, see Jon Mahoney, “Objectivity, Interpretation, and Rights: A Critique of Dworkin,” Law and Philosophy 23, no. 2 (2004): 187–222. 20. A quick look at Dworkin’s interpretations of constitutional cases demonstrates this point. His understanding of the conception of moral equality contained in the American constitution leads him to weigh in on various recent and controversial decisions: Bakke, Cruzan, Roe, and others. See Law’s Empire, 355–99, and Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996). The point here is not to take issue with Dworkin’s method of legal interpretation, with his contention that constitutional cases have right answers, or with his specific interpretations. Again, this may (or may not) make good sense as a matter of legal philosophy and constitutional interpretation. But in the context of Rawls’s political philosophy, justice as fairness is not supposed to provide definitive answers to political questions that reasonable people in an overlapping consensus disagree about. Reasonable people may accept justice as fairness and all of the following: that the essentials of the constitution are in line with justice as fairness, and, as a matter of constitutional interpretation, that, say, Cruzan was decided correctly (or at least not incorrectly), given the details of the case, the relevant precedents, and so forth. But, even after all of that, they may maintain that justice as fairness does not demand that there be a right to die and that, as a matter of substantive ethics, there ought not to be such a legal right and that the law ought to be changed. 21. The variety of proceduralism more closely associated with the Rawlsian program is Stuart Hampshire’s. See his Innocence and Experience (Cambridge, MA:



Notes to Chapters 3 and 4

Harvard University Press, 1989), and Justice Is Conflict (Princeton, NJ: Princeton University Press, 2000). 22. See previous note. Hampshire’s proceduralism amounts to an overlapping consensus on procedures for resolving disputes about justice; he regards a consensus on substantive justice to be overly ambitious. A similar idea can be found in Baier’s criticisms of Rawls’s overlapping consensus in his “Justice and the Aims of Political Philosophy,” and in Klosko’s Democratic Procedures and Liberal Consensus. For a critique of Hampshire’s proceduralism, see J. Cohen, “Pluralism and Proceduralism,” Chicago-Kent Law Review 69, no. 3 (1994): 589–618. 23. On these grounds, Freeman suggests that Habermas actually lacks a notion of public reason. See Freeman, “Deliberative Democracy: A Sympathetic Comment,” 410.

4. procedure and substance, construction and reconstruction 1. It is certainly true that substantiality is not a distinctive feature of a freestanding theory, since metaphysical theories of justice are surely substantive as well, and proceduralism, whether freestanding or metaphysical, is, for Rawls, simply not viable. A freestanding political theory of the kind that Rawls offers will, however, represent its substance differently—that is, as independent of any metaphysical underpinnings. 2. Rawls does say at one point in Theory that one might expand justice as fairness into a more comprehensive theory of interpersonal morality, which we could call “rightness as fairness.” The viability of such a project would depend, he says, on the success of the narrower task of working out a public conception of justice for the basic structure of society (TJ, 111/95–96). For whatever reason, he never attempted this larger task, nor is it clear that the later Rawls would have endorsed the attempt, as he has come to emphasize that his theory is specifically tailored to be a political theory (CP, 389). Some of Rawls’s colleagues and students have, however, attempted to work out a contractualist account of morality, intended to compete with utilitarianism as a model for interpersonal morality, and not just for political life, the most prominent being Scanlon, What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1999). See also Freeman, “Contractualism, Moral Motivation, and Practical Reason,” Journal of Philosophy 88, no. 6 (1991): 281–303. 3. See Geuss, Outside Ethics, 11–28. Geuss argues that the tradition of liberal political thought, alive to the dangers of zealotry and intolerance in politics, evinces a strong suspicion of moralizing approaches to politics, and that to this extent, both Rawls in particular and Kantian political philosophy in general are out of step with the problematic of classical liberalism. Whether this is an accurate representation of the way Kant thought of the relationship between his moral philosophy, on the one hand, and his political and legal thought, on the other, is debatable. See Waldron, The Dignity of Legislation (New York: Cambridge University Press, 1999), 36–62. 4. See David Ingram, “The Limits and Possibilities of Communicative Ethics for Democratic Theory,” Political Theory 21, no. 2 (1993): 294–321. 5. See McCarthy, Ideals and Illusions, 181–99, and “Legitimacy and Diversity:

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Notes to Chapter 4 Dialectical Reflections on Analytic Distinctions,” in Habermas on Law and Democracy: Critical Exchanges, ed. Andrew Arato and Michel Rosenfeld (Berkeley: University of California Press, 1998), 115–53. McCarthy also suggests that the limited applicability of consensus theories of morality and legitimacy for contemporary pluralistic politics ought to move Habermas closer to Rawls; see his “Kantian Constructivism and Reconstructivism: Rawls and Habermas in Dialogue,” Ethics 105 (1994): 44–63. See also Albrecht Wellmer, The Persistence of Modernity: Essays on Aesthetics, Ethics and Postmodernism, trans. David Midgley (Malden, MA: Polity Press, 1991), 113–231; and Melissa Yates, “Rawls and Habermas on Religion in the Public Sphere,” Philosophy and Social Criticism 33, no. 7 (2007): 880–91. 6. For a history of Habermas’s development on this point, see Ferrara, “The Communicative Paradigm in Moral Theory,” in The Handbook of Critical Theory, ed. David Rasmussen (Cambridge, MA: Blackwell Press, 1996), 119–37. 7. For the fullest statement of Habermas’s distinctions between moral, ethical, and pragmatic discourses, see Justification and Application: Remarks on Discourse Ethics, trans. Ciaran Cronin (Cambridge, MA: MIT Press, 1994), 1–17. 8. See H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review 71, no. 4 (1958): 593–629. 9. In this way, Habermas remains close to the original, interdisciplinary vision of critical social theory outlined in the 1930s. See Horkheimer, Between Philosophy and Social Science: Selected Early Writings (Cambridge, MA: MIT Press, 1995), 1–14. 10. Arguably, the fact that Habermas blends normative and empirical theory together makes him much more akin to the canonical figures of political philosophy than Rawls is, since political philosophers from Plato and Aristotle through Mill and Marx also contributed greatly to our empirical understanding of how societies work, and did not rigorously distinguish between normative and empirical theory. The development of the specialized social sciences in the late nineteenth century, however, has made this combination problematic in the eyes of many, and I think that it is fair to say that Anglo-American philosophy has been inclined, in the twentieth century, to see the empirical and the normative study of society as being quite different enterprises that do not necessarily have a lot to do with each other. In any event, part of Habermas’s argument in Between Facts and Norms is that, since the time of Hegel at least, sociology and normative political philosophy have tended to look at each other with increasing indifference, with bad consequences for both fields. See BFN, 42–81. 11. See esp. TCA 2, 153–98. 12. See TCA 1, 216–42, and TCA 2, 303–31. 13. See Scanlon, What We Owe to Each Other, and “Contractualism and Utilitarianism,” in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (New York: Cambridge University Press, 1982), 103–28. 14. See Taylor, “Language and Society,” in Communicative Action: Essays on Jürgen Habermas’ Theory of Communicative Action, ed. Axel Honneth and Hans Joas (Cambridge, MA: MIT Press, 1991), 23–35. 15. See, for example, Sandel, Liberalism and the Limits of Justice; and Taylor, “Cross Purposes: The Liberal-Communitarian Debate,” in Liberalism and the Moral Life, ed. Nancy Rosenblum (New York: Cambridge University Press, 1989), 159–82.



Notes to Chapter 4

16. Martin Morris makes this suggestion in his Rethinking the Communicative Turn: Adorno, Habermas, and the Problem of Communicative Freedom (Albany, NY: SUNY Press, 2001). For what we might call the “left critical theory” critique of Habermas, see also William Scheuerman, “Between Radicalism and Resignation: Democratic Theory in Habermas’ Between Facts and Norms,” in Discourse and Democracy: Essays on Habermas’ Between Facts and Norms, ed. Kenneth Baynes and René von Schomberg (Albany, NY: SUNY Press, 2002), 61–85; and Michael Power, “Habermas and the Counterfactual Imagination,” in Arato and Rosenfeld, eds., Habermas on Law and Democracy, 207–25. 17. See Karl-Otto Apel, “Normatively Grounding ‘Critical Theory’ through Recourse to the Lifeworld? A Transcendental-Pragmatic Attempt to Think with Habermas against Habermas,” in Philosophical Interventions into the Unfinished Project of Modernity, ed. Axel Honneth, Thomas McCarthy, Claus Offe, and Albrecht Wellmer (Cambridge, MA: MIT Press, 1992), 125–70, and “Regarding the Relationship of Morality, Law, and Democracy: On Habermas’ Philosophy of Law from a Transcendental-Pragmatic Point of View,” in Habermas and Pragmatism, ed. Mitchell Aboulafia, Myra Bookman, and Catherine Kemp (New York: Routledge, 2002), 17–30. See also Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts, trans. Joel Anderson (Cambridge, MA: MIT Press, 1996); and Otfried Höffe, Categorical Principles of Law: A Counterpoint to Modernity, trans. Mark Migotti (College Park: Pennsylvania State University Press, 2002), 249–87. 18. See Larmore, The Morals of Modernity, 205–21, and “The Moral Basis of Political Liberalism”; J. Cohen, “Reflections on Habermas on Democracy,” Ratio Juris 12, no. 4 (1999): 385–416; and Mahoney, “Rights without Dignity? Some Critical Reflections on Habermas’ Procedural Model of Law and Democracy,” Philosophy and Social Criticism 27, no. 3 (2001): 21–40. 19. See Cooke, Re-Presenting the Good Society, chapter 1. 20. See PT, 28–53. 21. This issue of why Habermas insists on actual discourses will come up again when we consider his legal theory in Chapter 8, but we can start to see that actual discourses have more than epistemic significance for him: the application of norms through actual discourse is partially constitutive of their substance. I believe that this feature of his thought is underappreciated in many accounts of Habermas. See, for example, Christopher McMahon, “Why There Is No Issue between Habermas and Rawls,” Journal of Philosophy 99, no. 3 (2002): 111–29. 22. Habermas’s relationship with Hans-Georg Gadamer’s philosophical hermeneutics is significant here, as Gadamer strongly agrees with Habermas on (a), while vehemently disagreeing with him on (b). See Gadamer, Truth and Method, 2d rev. ed., trans. Joel Weinsheimer (New York: Continuum, 2005). 23. “The discourse principle provides an answer to the predicament in which the members of any modern community find themselves when, in making the transition to a modern, pluralistic society, they find themselves faced with the dilemma that though they still argue with reasons about moral judgments and beliefs, their substantive background consensus on the underlying moral norms has been shattered” (IO, 39). Habermas uses the term “moral” here, but one could substitute a more general term, like “practical,” without distortion.

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Notes to Chapter 4 24. See Cooke, Re-Presenting the Good Society, 45 and following. 25. Martin Seel criticizes Habermas for not being clear about whether or not the specifically modern constellation of practical reason constitutes its true form. This might be a troubling issue for Habermas, since it seems to drive a wedge between reconstructive and interpretive theory. Habermas recognizes that practical issues frequently bleed into one another, and it is commonplace for lifeworld participants not to distinguish questions of fact from value, questions of value from rightness, and so forth. So, for the interpreter, any sharp divisions that a theorist draws between different varieties of practical reason may appear to be illusory, overly rigid, and reifying, whereas, from the perspective of the reconstructive theorist, it may appear that lifeworld participants are muddling together discourses that are, in fact, distinct. While I do not believe that this issue is crucial for my argument, it does make a difference for Habermas’s critical theory of society as a whole: if the reconstructive theorist’s understanding of the structure of practical discourses in modernity represents the true structure of practical reason, then the lifeworld may be critiqued for insufficiently distinguishing these discourses; whereas, if the lifeworld’s relatively undifferentiated scheme of practical discourse is ontologically prior, then theories and ideologies that sharply distinguish practical issues could be considered reifying. See Seel, “Two Meanings of ‘Communicative’ Rationality: Remarks on Habermas’ Critique of a Plural Concept of Reason,” in Honneth and Joas, eds., Communicative Action, 36–48. See also Peter Dews, “Law, Solidarity, and the Tasks of Philosophy,” in Baynes and von Schomberg, eds., Discourse and Democracy, 173 and following. 26. We must be careful here, as Habermas wants to disabuse us of the notion that moral and legal rules can be differentiated according to their different object domains—for example, according to a public/private distinction. See BFN, 106–9. He not only warns that the distinction is historically variable but also holds that the relevant difference between legal and moral rules is that the latter are only a system of cultural knowledge, whereas the former are also an action system. 27. See Apel, “Regarding the Relationship between Morality, Law, and Democracy,” 27 and following. See also Matthias Kettner, “The Disappearance of Discourse Ethics in Habermas’ Between Facts and Norms,” in Baynes and von Schomberg, eds., Discourse and Democracy, 201–18. 28. See Apel, “Regarding the Relationship of Morality, Law, and Democracy,” 24 and following. 29. I owe this example to Cristina Lafont. 30. See TCA 2, 333–73. 31. I bracket the issue of whether there are, in fact, right answers to questions of what kind of discourse is appropriate to any given problem, in spite of the fact that there will often be persistent disagreements on these metaissues. 32. See the discussion of law and the welfare state in TCA 2, 361–73. This whole line of thought is connected to Habermas’s very early (that is, 1950’s) interest in the idea, drawn primarily from conservative cultural critics of modernity, that rationalized bureaucracies and market systems tend to undermine and destroy traditional forms of community. See Rolf Wiggershaus, The Frankfurt School: Its History, Theories, and Political Significance, trans. Michael Robertson (Cambridge, MA: MIT Press, 1998), 539–41.



Notes to Chapters 4 and 5

33. See Nancy Fraser, Unruly Practices (Minneapolis: University of Minnesota Press, 1989), 113–43; and Benhabib, Critique, Norm, and Utopia, 248–53. 34. See Kevin Olson, “Welfare, Democracy, and the Reflexive Legitimacy of the Law,” Studies in Law, Politics and Society 29 (2003): 97–122. 35. See Jan-Werner Müller, “Rawls in Germany,” European Journal of Political Theory 1, no. 2 (2002): 163–79. 36. See, generally, Habermas, The Philosophical Discourse of Modernity: Twelve Lectures, trans. Frederick G. Lawrence (Cambridge, MA: MIT Press, 1987), esp. the final two lectures. 37. Habermas does, however, view the indifference or skepticism of many legal and social theorists toward normative theory as misguided: “In unmasking the legal system from the observer’s perspective, they merely go straight past its normative self-understanding” BFN, 65. Habermas has tried to make this point repeatedly in his long-running dispute with Luhmann. See Habermas, Legitimation Crisis, trans. Thomas McCarthy (Boston: Beacon Press, 1973), 130–42, and The Philosophical Discourse of Modernity, 368–85. 38. The use of the terms “rational reconstruction,” “know-how,” and “know that” can be found as early as the 1973 postscript to Knowledge and Human Interests (1968). See “A Postscript to Knowledge and Human Interests,” in Knowledge and Human Interests, 2d ed., trans. Jeremy Shapiro (London: Heinemann Educational Books, 1978), 377–80. See also Habermas, “The Hermeneutic Claim to Universality,” in Contemporary Hermeneutics, ed. Josef Bleicher (Boston: Routledge, 1980), 185–86. 39. Benhabib, Critique, Norm, and Utopia, 267. See also CES, 102 and following. 40. See Habermas, “The Hermeneutic Claim to Universality,” and CES, 199 and following.

5. discourse theory and the constitutional democratic state 1. See Ingeborg Maus, “Liberties and Popular Sovereignty: On Jürgen Habermas’ Reconstruction of the System of Right,” in Baynes and von Schomberg, eds., Discourse and Democracy, 97 and following. 2. As McCarthy notes, in Between Facts and Norms, Habermas “signals a Rawlslike view that the type of ethical agreement critical to deliberation in the democratic constitutional state is ethical-political consensus on our collective legal-political identity and on our basic legal-political values. The difference from Rawls, it seems to me, stems from the different theoretical status Habermas assigns to ethical-political self-understanding. Unlike Rawls’s reflective equilibrium, Habermas’s hermeneutic self-clarification does not function as the basic level of justification in his theory of justice. Rather, it is theoretically subordinate to his derivation of an ‘abstract system of basic rights’ through an analysis of the presuppositions of democratic self-determination,” “Legitimacy and Diversity,” 131. See also Maus, “Liberties and Popular Sovereignty,” 98. 3. See Forst, “Justice, Reason, and Critique: Basic Concepts of Critical Theory,” in David Rasmussen, ed., The Handbook of Critical Theory, 142 and following. 4. See also TCA 1, 265: “The belief in legality can produce legitimacy only if we already presuppose the legitimacy of the legal order that lays down what is legal.”

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Notes to Chapter 5 5. This becomes apparent when Habermas connects the universalistic mode of reasoning found in postconventional morality with George Herbert Mead’s conception of “ideal role taking,” which involves an exercise wherein persons imaginatively project themselves into the shoes of others in order to determine how their actions appear from the perspective of a universal audience. See PT, 149–204. 6. “To the degree that conventionally bound action is replaced by action oriented to success, by purposive-rational action, there arises a problem of how the scopes of action based on self-interest freed from convention, can in turn be legitimately ordered” (TCA 1, 254–55). 7. It is in this sense that Habermas refers to modern law as a functionally necessary complement to modern moral consciousness. The idea here is that modern, principled morality has become an impartial perspective from which to test whether norms are in the interest of everyone. Moral discourses have become a specialized form of reflection on the universality and rightness of action, which has come to be differentiated from discourses that take some concrete form of life as their starting point. The upshot of these developments is a morality that has divorced itself from the motivational sources of emphatic traditions, and that moral discourses are somewhat indeterminate. These developments make the moral regulation of modern life quite problematic. But Habermas’s idea is that the positivity of law compensates for the cognitive indeterminacy of modern moral consciousness, and law’s enforceability compensates for the morality’s motivational deficits. Law allows individuals to interact in a normatively regulated way without shouldering the cognitive burdens of moral conscience. See BFN, 111–18. 8. In “Law and Morality,” however, one will still find Habermas saying things like: “Political power exercised in the form of positive law that in need of justification owes its legitimacy instead—at least in part—to the implicit moral content of the formal properties of law.” See “Law and Morality,” in The Tanner Lectures on Human Values, vol. 8, ed. S. M. McMurrin (Salt Lake City: University of Utah Press, 1988), 242. Such a statement is reminiscent of the formal natural law of someone like Lon Fuller. See Fuller, The Morality of Law (New Haven: Yale University Press, 1964). In Between Facts and Norms, Habermas more consistently avoids ascribing intrinsically moral features to the legal medium; the normativity associated with the rule of law comes about only when the legal medium is combined with the discourse principle in constitutional praxis. 9. For this view, see Dworkin, Freedom’s Law, 1–38. 10. The introduction of rights at this point might seem presumptuous for an avowedly functional argument like Habermas’s. See, however, a similar account of the basic features of the rule of law found in a rather more skeptical legal theory: Duncan Kennedy, A Critique of Adjudication: Fin de Siècle (Cambridge, MA: Harvard University Press, 1997), 13–14. 11. Habermas’s position here is more complicated than I can do justice to at the moment, as he is a positivist about rights by virtue of arguing that they are juridical and actionable by their very nature and therefore can emerge only out of a legally constituted process of legitimate lawmaking; yet he also defends cognitive universalism with regard to human rights, by contending that human rights are valid claims that can be defended from the moral point of view. See Habermas, “Remarks on Legitimation through Human Rights,” in The Postnational Constellation: Political



Notes to Chapter 5

Essays, ed. and trans. Max Pensky (Cambridge, MA: MIT Press, 2001), 113–30. For a helpful commentary, see Jeffrey Flynn, “Habermas on Human Rights: Law, Morality, and Intercultural Dialogue,” Social Theory and Practice 29, no. 3 (2003): 431–57. 12. Habermas, Time of Transitions, ed. and trans. Ciaran Cronin and Max Penksy (Malden, MA: Polity, 2006), 126. 13. In this regard, Habermas’s criticism of Hobbes’s contract theory is instructive. He makes the (not entirely original) point that Hobbes is unable to explain why an original agreement in the state of nature among prepolitical persons justifies a system of law and government, since covenants and promises are themselves social institutions, the validity of which cannot be presupposed in a presocial condition. Hobbes therefore takes recourse in a kind of natural law theory, which seems at odds with the general tenor of his theory, in order to explain why promises in the state of nature are binding. See BFN, 90–92. 14. Maus, “Liberties and Popular Sovereignty,” 98. 15. Jacques Derrida, “Declarations of Independence,” New Political Science 15 (Summer 1986): 7–15. 16. To be sure, there are those who think that we should simply embrace this paradoxical formulation, recognizing it as paradoxical and irresolvable. See Chantal Mouffe, The Democratic Paradox (New York: Verso, 2000). 17. See Habermas, On the Logic of the Social Sciences, trans. Shierry Weber Nicholsen and Jerry A. Stark (Cambridge, MA: MIT Press, 1988). 18. Habermas, Time of Transitions, 124. 19. This point has some important implications for the role of judicial review and constitutional courts in the infrastructure of the constitutional state. On Habermas’s conception of judicial review and its relation to other prominent views on this topic, see Christopher Zurn, Deliberative Democracy and the Institutions of Judicial Review (Cambridge, MA: MIT Press, 2008). 20. Taylor is the most prominent defender of such a view. See Sources of the Self; “Two Theories of Modernity,” Public Culture 11, no. 1 (1999): 153–74; and Modern Social Imaginaries. 21. Robert Pippin writes: “Even if Habermas can show that [the norms underlying communicative action] are effectively presupposed in current cognitive, practical and aesthetic practices, that analysis alone will not get us to any claim about ‘the’ conditions for linguistic activity as such, and certainly not to any claims about what is rational or even to what is superior or affirmable in our practices.” See “Hegel, Modernity, and Habermas,” Monist 74 (1991): 346. See also Kettner, “The Disappearance of Discourse Ethics,” 205–6. 22. Whether their ability to withstand critical testing is actually what their validity consists in is a different, and controversial, question. See Cristina Lafont, “Procedural Justice? Implications of the Rawls-Habermas Debate for Discourse Ethics,” Philosophy and Social Criticism 29, no. 2 (2003): 167–85. 23. A fuller defense of the developmental superiority of the discourse principle would involve an examination of Habermas’s interpretation of Durkheim’s claims about the “linguistification of the sacred.” See TCA 2, 77–111. 24. Compare Kant, “On the Common Saying,” in Practical Philosophy, 290/8:289 and following. 25. See CES, 188 and following.

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6. proceduralism and functionalism 1. Bernhardt Peters, “On Reconstructive Legal and Political Theory,” Philosophy and Social Criticism 20, no. 4 (1994): 118. According to Peters, judgments about legitimacy are at least partially substantive for the reason that democratic procedures are not an instance of “pure” or “perfect procedural legitimacy,” where the legitimacy of an outcome is either guaranteed by the procedure (as in perfect procedural legitimacy) or constituted by it (as in pure procedural legitimacy). The democratic process, he posits, is an instance of “quasi-pure procedural legitimacy”: “Here we have procedures that we trust in the just mentioned sense—in that we think they will produce acceptable results, at least in general or in the long run. But we also regard the results as binding—even in most cases where we think they are substantively wrong. This we do because we have committed ourselves beforehand, in one way or another, to accept the results or because we think that these procedures are the best form to regulate some of our collective affairs, so that we are willing to accept occasional mistakes or wrong outcomes because we think they will get corrected in the long run or that it is worth paying the price of occasional mishaps. But we reserve judgment, so to speak: if the mistake seems too serious, we might refuse to go along, even if the procedure followed is unexceptionable. I think this is the most fitting description of the most common normative attitude toward legal and political procedures—particularly voting and legislation as well as adjudication.” See p. 117. See also Rawls’s related discussion (R, 421–33); and Lafont, “Procedural Justice?” 2. See Hampshire, Justice Is Conflict. 3. J. Cohen, “Pluralism and Proceduralism,” 591. 4. Ibid., 600 and following. 5. Ibid., 610. 6. As I read them, Peters is making the empirical and phenomenological point that people tend not to see something as valid or legitimate simply on the basis of a procedure, unless there are process-independent (that is, substantive) reasons to abide by the results of a procedure. Cohen seems to be adding more of a conceptual or logical point: there are no grounds for justifying a procedure except by appeal to substantive norms or values. Taylor makes a similar point against Habermas’s discourse ethics in “Language and Society,” 30 and following. And Rawls signals his approval of Cohen’s argument in R, 422 note 68. 7. See R. Bernstein, “The Retrieval of the Democratic Ethos,” in Arato and Rosenfeld, eds., Habermas on Law and Democracy, 287–305; Wellmer, Endgames: The Irreconcilable Nature of Modernity, trans. David Midgely (Cambridge: MIT Press, 1998), 39–62; and Chambers, Reasonable Democracy. 8. Habermas makes essentially the same point with regard to discourse ethics. See MCCA, 98 and following. 9. Andrew Buchwalter writes: “[Habermas] maintains only that cultural contextualization is needed to apply principles whose validity has been exogenously determined—via analysis of the formal pragmatic conditions of communication.” See “Law, Culture, and Constitutionalism: Remarks on Hegel and Habermas,” in Beyond Liberalism and Communitarianism: Studies in Hegel’s Philosophy of Right,



Notes to Chapter 6

ed. Robert R. Williams (Albany, NY: SUNY Press, 2001), 211–12. See also Georgia Warnke, “Communicative Rationality and Cultural Values,” in Stephen White, ed., The Cambridge Companion to Habermas, 120–42. 10. See R. Bernstein, “The Retrieval of the Democratic Ethos,” 290 and following. 11. Habermas, “The Moral and the Ethical: A Reconsideration of the Issue of the Priority of the Right over the Good,” in Pragmatism, Critique, Judgment: Essays for Richard J. Bernstein, ed. Seyla Benhabib and Nancy Fraser (Cambridge, MA: MIT Press, 2004), 34. 12. R. Bernstein writes: “The more Habermas insists on the ‘purity’ of his discourse theory—i.e., that it is free from any taint or contamination by substantialethical commitments—the more formal and empty (in the pejorative sense) it becomes. The theory fails to do the work that Habermas claims for it: to provide a rational basis for justifying a theory of deliberative procedural democracy.” See “The Retrieval of the Democratic Ethos,” 289. 13. J. Cohen, “Reflections on Habermas on Democracy,” 390. 14. J. Cohen has argued for this Rawlsian version of deliberative democracy in a number of places. See “An Epistemic Conception of Democracy,” Ethics 97, no. 1 (1986): 26–38, “Deliberation and Democratic Legitimacy,” in The Good Polity, ed. A. Hamlin and Philip Pettit (New York: Blackwell, 1989), 17–34, and “Moral Pluralism and Political Consensus,” 270–91. 15. Mahoney, “Rights without Dignity?” 33 (italics omitted). 16. Although I have been dealing here mostly with critiques of Habermas’s work that come from the English-speaking world, these points have their analogues in the German-speaking one. We could add Honneth’s name to the list of those critics who see Habermas’s mode of justification as being insufficiently connected to a conception of moral personhood, and Apel’s and Höffe’s to the list of those who think that Habermas’s theory is, at bottom, insufficiently categorical. 17. Ibid., 37. 18. Taylor, “The Politics of Recognition,” in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton: Princeton University Press, 1994), 25–73. The terms “Liberalism 1” and “Liberalism 2” are Michael Walzer’s abbreviations, not Taylor’s. See Walzer’s “Comment” in Multiculturalism, 99–103. 19. Taylor, “The Politics of Recognition,” 27. 20. In his comment on Taylor’s essay, Walzer emphasizes that, even in societies based on Liberalism 2, it will often prove more appropriate to let individual rights trump group rights or other cultural concerns: it will depend on the circumstances and cultural makeup of the nation-state in question. To paraphrase, this is to choose Liberalism 1 from within Liberalism 2. See “Comment,” 102. 21. Habermas gives more careful consideration to the idea of group and cultural rights in “Equal Treatment of Cultures and the Limits of Postmodern Liberalism,” Journal of Political Philosophy 13, no. 1 (2005): 1–28, where he continues to criticize the idea of group rights but endorses the idea of individually held rights to the integrity of one’s culture, to not having that culture denigrated, and to not being unduly burdened in the reproduction of one’s cultural form of life. 22. See, however, McCarthy, “On Reconciling Cosmopolitan Unity and Na-

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Notes to Chapter 6 tional Diversity,” Public Culture 11 (1999): 205 and following. McCarthy suggests that the functional requirements of law in modern society may constrain the possibility, argued for by Taylor, of appreciably different, non-Western forms of modernity. That thesis, however, is considerably more ambitious than the one Taylor offers in “The Politics of Recognition,” which argues not so much for a radically different form of law but for a comparatively subtle softening of the focus on individual rights characteristic of Western liberalism. 23. This point could be made in other ways, on behalf of versions of the legal community tied to other, more substantive conceptions of the person, such as classical liberalism’s conception of the person as an atomized bearer of prepolitical rights that are directed against the state. Habermas denies that the rights that constitute the legal code are directed against the state. See BFN, 122–23. Again, we might end up dismissing this conception of the foundation of the legal order on its substantive merits, but it seems as though there should at least be space for a reasonable argument to be had about these merits, or lack thereof. 24. See Hart, The Concept of Law, 2d ed. (New York: Oxford University Press, 1994), 194–200. 25. Ibid., 199. 26. Ibid., 249. 27. See Fuller, “Positivism and the Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review 71, no. 4 (1958): 630–72. 28. See Richard Posner, Law, Pragmatism, and Democracy (Cambridge, MA: Harvard University Press, 2003), chapters 4–5. 29. See Olson, “Do Rights Have a Formal Basis? Habermas’ Legal Theory and the Normative Foundations of the Law,” Journal of Political Philosophy 11, no. 3 (2003): 273–94. 30. See Rawls’s discussion of the concluding lines of Between Facts and Norms at R, 426–27. 31. These are Mahoney’s examples of rights of which Habermas’s reconstructive argument does not capture the moral character. See Mahoney, “Rights without Dignity?” 30 and following. 32. Baynes, “Rights as Critique and the Critique of Rights: Karl Marx, Wendy Brown, and the Social Function of Rights,” Political Theory 28, no. 4 (2000): 466. 33. Bonnie Honig, “Dead Rights, Live Futures: A Reply to Habermas’ ‘Constitutional Democracy,’” Political Theory 29, no. 6 (2001): 800 and following. 34. See, for example, ibid. See also Honneth, The Struggle for Recognition; Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990); and Fraser, Unruly Practices, 161–90. 35. The alternative here is a theory like Honneth’s that links the articulation of rights to the articulation of needs and struggles for recognition, and this complex is in turn connected to a thicker account of the human subject as constituted by various relations of recognition and “formal” theory of the good life. See Honneth, The Struggle for Recognition. 36. Habermas, “On Law and Disagreement: Some Comments on ‘Interpretive Pluralism,’” Ratio Juris 16, no. 2 (2003): 193. 37. Habermas, Time of Transitions, 123.



Notes to Chapter 7

7. rawls and the critique of constitutional contractarianism 1. We do need to appreciate some of the nuances of Rawls’s position here, however. The task of institutionalizing the principles of justice is one that is taken up throughout the latter three stages of application: the constitutional, legislative, and adjudicative stages, not just in the constitutional stage. Rawls lays out a division of labor wherein the task of protecting the first principle of justice is taken up as a question of constitutional design, whereas institutionalizing the various aspects of the second principle are more or less left to the legislative stage. See TJ, 199/174– 75. 2. “In justice as fairness, we adopt in thought and subsequent practice a constitution in which, as I have said, we may or may not embed the basic liberties, thereby subjecting parliamentary legislation to certain constitutional constraints as one of the ways to discipline and regulate the presupposed state power. This power is presupposed in justice as fairness, because from the start we are dealing with principles and ideals for the basic structure of society and its main political and social institutions, already taken to exist in some form” (R, 414). 3. See Andrés de Francisco, “A Republican Interpretation of the Late Rawls,” Journal of Political Philosophy 14, no. 3 (2006): 270–88. 4. Rousseau, however, had broader concerns than Rawls, as he hoped that the practice of legislating through the general will could overcome the alienation, pettiness, and anomie that he saw infecting modern life. For a reading of Rousseau that emphasizes the general will as a structure of deliberation, see Richard Dagger, Civic Virtues: Rights, Citizenship, and Republican Liberalism (New York: Oxford University Press, 1997), chapter 6. 5. This is the scenario suggested in Waldron, Law and Disagreement (New York: Oxford University Press, 1999), chapter 7. 6. See Waldron, The Dignity of Legislation, 87 and following. 7. See Frank Michelman, “Rawls on Constitutionalism and Constitutional Law,” in Freeman, ed., The Cambridge Companion to Rawls, 394–425. 8. Rawls follows Michelman in contending that “basic needs” of citizens should be constitutionally guarantied (PL, 166), and that the way justice as fairness conceives of the basic liberties explicitly suggests a balancing approach that seeks to maximize equal use value in a way that the U. S. Supreme Court has sometimes rejected. See, in particular, the Supreme Court’s decision in Buckley v. Valeo 424 US 21 (1976). Michelman also argues that justice as fairness provides a compelling (though not decisive) case for the constitutional recognition of same sex unions. See “Rawls on Constitutionalism and Constitutional Law,” 410 and following. 9. See Lawrence G. Sager, “The Why of Constitutional Essentials,” Fordham Law Review 72, no. 5 (2004): 1421–34. 10. Of the sort of controversies about justice that I have been discussing, some for Rawls will be matters of constitutional law that should be settled through judicial review, others not. Sometimes it will not be obvious whether a given issue implicates matters of governmental structure or basic rights, and therefore part of the controversy will be what forum—judiciary or legislature—is the appropriate one

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Notes to Chapters 7 and 8 to settle it in. The problems I am discussing appear in somewhat different forms, depending on whether the matter in question is deemed to be part of the constitutional essentials, or not. 11. Michelman, “The Problem of Constitutional Interpretive Disagreement: Can ‘Discourses of Application’ Help?” in Mitchell Aboulafia, Myra Bookman, and Catherine Kemp, eds., Habermas and Pragmatism, 121. 12. See Marbury v Madison 5 US 137 (1803). 13. “Now admittedly, in the long run a strong majority of the electorate can eventually make the constitution conform to its political will. This is simply a fact about political power as such” (PL, 233). 14. We have already seen why a certain response to this problem, exemplified by Dworkin, will not do. Dworkin is well known for arguing that hard cases do admit of single, correct answers. See Taking Rights Seriously, 81–130 and 331–38. He argues for this on the basis of a kind of metaphysical moral realism: there are single correct answers because there are true rights principles, accessible to us by right reason, that underlie just legal systems. See Dworkin, “Objectivity and Truth? You’d Better Believe It,” Philosophy and Public Affairs 25, no. 2 (1996): 87–139. Dworkin is not a constitutional contractarian: for him, legitimacy is not secured by way of a reasonable agreement. Rather, any reasonable agreement on justice is reasonable only to the extent that it reflects this true moral order. I have not directly criticized this sort of view throughout, contenting myself to point out that it cannot accommodate the impetus behind Rawls’s and Habermas’s political/postmetaphysical turn: Dworkin’s approach insists on truth in politics. His way of solving the constitutional contractarian problem (or rather, of avoiding it altogether) cannot be reconciled with Rawls’s freestanding theory. Insisting on a certain kind of moral truth for principles undermines the possibility of a reasonable overlapping consensus under conditions of reasonable pluralism.

8. habermasian constitutional theory 1. Habermas, “On Law and Disagreement,” 192 and following. 2. Habermas, Justification and Application, 36. 3. Klaus Günther, The Sense of Appropriateness: Application Discourses in Morality and Law, trans. John Farrell (Albany, NY: SUNY Press, 1993), 68. 4. Habermas, Justification and Application, 128. 5. There is a separate issue here between Habermas and Michelman regarding the plausibility of seeing constitutional rights as being the outcomes of legitimately constituted justificatory discourses (by the founders). For an in-depth discussion of this matter, see Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue,” Ratio Juris 19, no. 3 (2006): 343–69. 6. Habermas’s position on judicial review is in some respects similar to Rawls’s. He does not consider it self-evident that legislative acts should be subject to final review by a constitutional court. Indeed, not every viable constitutional order has such an institution, and in those that do, their power and scope is varied. Habermas notes that there is nothing inconsistent with equipping the legislature with the power to review the constitutionality of its own acts. See BFN, 238–40. But like Rawls, he



Notes to Chapter 8

nevertheless considers constitutional review justifiable, and to a certain extent, advisable. For the view that Habermas is too sanguine about the paternalism involved in judicial review, see Zurn, Deliberative Democracy, 227 and following. 7. Günther, “A Normative Conception of Coherence for a Discursive Theory of Legal Justification,” Ratio Juris 2 (1989): 160. 8. According to Michelman, this shows why Habermas cannot escape the contractarian dilemma through appeal to Günther’s theory. See “The Problem of Constitutional Interpretive Disagreement,” 132 and following. 9. See Habermas, “Historical Consciousness and Post-Traditional Identity,” in Shierry Weber Nicholsen, ed. and trans., The New Conservatism, 261. 10. Ibid., 262. 11. Compare Patchen Markell, “Making Affect Safe for Democracy: On ‘Constitutional Patriotism,’” Political Theory 28, no. 1 (2000): 38–63. Markell’s unorthodox interpretation of Habermas’s constitutional patriotism maintains that it is best read as a sort of anti-identity identity—that is, a form of life characterized by resistance to any substantive corporate identity. While such a form of identity (to the extent that it is possible) is perfectly compatible with a public political culture of constitutional patriotism, perhaps even in an exemplary way, what Markell describes would seem to fall under the ambit of an ethical-existential life project that, like all such ethical life projects, cannot command universal assent. 12. “Legal orders as wholes are . . . ‘ethically imbued’ in that they interpret the universalistic content of the same constitutional principles in different ways, namely, against the background of the experiences that make up a national history and in light of historically prevailing tradition, culture, and form of life” (IO, 144). 13. Michelman, “Morality, Identity, and ‘Constitutional Patriotism,’” Ratio Juris 14, no. 3 (2001): 1026. See also Michelman, “Constitutional Authorship,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (New York: Cambridge University Press, 1998), 64–98. 14. See, for example, BFN, 499, 512–13. 15. Cronin, “Democracy and Collective Identity: In Defense of Constitutional Patriotism,” European Journal of Philosophy 11, no. 1 (2003): 1–28. 16. Müller, Constitutional Patriotism (Princeton: Princeton University Press, 2007), 142. 17. See Taylor, “Cross-Purposes: The Liberal-Communitarian Debate,” and “Why Democracy Needs Patriotism,” in For Love of Country: Debating the Limits of Patriotism, ed. Joshua Cohen (Boston, MA: Beacon Press, 1996), 119–21. 18. See Habermas, The Postnational Constellation, and The Divided West, ed. and trans. Ciaran Cronin (New York: Polity Press, 2006), 115–93. See also my “Constitutionalization and Democratization: Habermas on Postnational Governance,” Social Theory and Practice 33, no. 3 (2007): 387–410. 19. See Benhabib, Another Cosmopolitanism, ed. Robert Post (New York: Oxford University Press, 2006), 69 and following. 20. Habermas’s view seems strikingly compatible with elements of the conception of “popular constitutionalism” outlined in Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).

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Notes to Chapters 8 and 9 21. Michelman discusses a difference between the U.S. and Canadian constitutions: the U.S. Constitution has been interpreted to provide broad protection for hate speech, whereas the Canadian constitution does not. See “Family Quarrel,” in Arato and Rosenfeld, eds., Habermas on Law and Democracy, 309–22. For Habermas, both could be valid ways of realizing the system of rights, given the differences in political culture and historical experience of each nation. But nothing is set in stone here: the historical way that American and Canadian citizens have attempted to realize the system of rights, balancing speech rights against rights of integrity of identity, does not preclude the possibility that good arguments could be made in the American context for reversing this precedent (and vice versa). And surely citizens who make such arguments ought not to be seen as less of constitutional patriots because of it (as perhaps they would under Constitutional Patriotism B). 22. On the possible relevance of the concepts of ideology and ideology critique in deliberative democracy theory, see Rostbøll, Deliberative Freedom, 135–41. 23. See Honig, “Dead Rights, Live Futures,” 798. 24. On this point, there is some resonance between Habermas and Waldron, though Habermas does not share Waldron’s rather pointed skepticism about the merits of judicial review. See Law and Disagreement, 255–81.

9. conclusion: idealizations and power 1. I should note that the kind of Hegelianism I am connecting to my readings of Rawls and Habermas represents a particular reading of Hegel: one that either de-emphasizes or disavows the kind of triumphalism on display, for example, in the final chapter of The Phenomenology of Spirit, wherein Hegel seems to claim that Spirit has now (1807) become fully transparent to itself. I am not necessarily arguing that this is the most faithful rendering of Hegel. See, however, Terry Pinkard, Hegel’s Phenomenology: The Sociality of Reason (New York: Cambridge University Press, 1994). 2. See Geuss, Philosophy and Real Politics (Princeton: Princeton University Press, 2008), 89. 3. Posner, Law, Pragmatism, and Democracy, chapters 4–5. 4. See Max Weber, “Politics as Vocation,” in From Max Weber: Essays in Sociology, ed. H. H. Gerth and C. Wright Mill (New York: Oxford University Press, 1958), 77–128; and Joseph Schumpter, Capitalism, Socialism, and Democracy (New York: Harper Perennial, 1962). 5. See Habermas, Toward a Rational Society, 102 and following; and Herbert Marcuse, Negations: Essays in Critical Theory, trans. Jeremy Shapiro (Boston: Beacon Press, 1968), 201–26. 6. See Habermas, “Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension? The Impact of Normative Theory on Empirical Research,” Communication Theory 16 (2006): 411–26. See also, however, Lawrence R. Jacobs and Robert Y. Shapiro, Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness (Chicago: University of Chicago Press, 2000). 7. Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996).



Notes to Chapter 9

8. Geuss, Philosophy and Real Politics, 90. 9. Habermas, Truth and Justification, trans. Barbara Fultner (Cambridge, MA: MIT Press, 2003), 101. 10. Habermas, The Philosophical Discourse of Modernity, 301. 11. Compare Michelman, Brennan and Democracy (Princeton: Princeton University Press, 1999), 7 and following.

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Index

Abortion, 31, 160, 213n24; and Supreme Court, 201–2n25 Adorno, Theodor, 5, 10, 198n12 Apel, Karl-Otto, 89, 95–96, 192 Application, four stage sequence of, 74, 98, 147–48, 151–52, 158–59, 219n1 Application discourse, 139, 162–65, 169–73 Argumentation: and discourse, 90–91, 162–65; moral, 86–88; rules of, 91–94 Autonomy, 12–13; full, 155; Kant’s conception of, 12, 17, 22; and law, 119, 163; liberalism and, 17, 70; political, 97, 173, 195, 188, 199n1; public and private, 89, 115–18, 135, 142, 173–74; and the welfare state, 97 Baier, Kurt, 202n4 Bargaining, 86, 95 Basic justice, 30–31, 41, 46, 158–63, 172. See also Constitutionalism: constitutional essentials Basic liberties, 18–19, 157–58. See also Constitutionalism: constitutional essentials; First principle of justice Basic structure of society, 27–30, 41, 54–55, 156–61 Baynes, Kenneth, 64, 141–42, 206n32 Benhabib, Seyla, 47, 101 Bernstein, Richard, 129

Brown, Wendy, 142 Buckley v. Valeo, 219n8 Burdens of judgment, 20–21, 48–50, 160, 164. See also Pluralism Bureaucracy, 2, 96, 173. See also Systems; Technocracy Capitalism, 2, 27, 109, 188; laissez faire, 106. See also Markets Circumstances of justice, see Hume, David Citizen(s): and autonomy, 142; conception of, 52, 111–12, 128; and justification through public reason, 18–22, 26–27, 147, 154–56, 204n8; and legitimacy and disagreement, 159–61, 174–79, 193; perspective of, 113–17, 126, 165, 185; philosophers and, 78, 89, 97–99, 126, 139, 150; political relation to one another, 8–9, 145–47, 154–57, 164, 176–83; reasonable citizens of faith, 37–40, 44; and reflective equilibrium, 35. See also Free and equal persons Civic humanism, 188 Civic virtue, 163–64, 188 Cognitivism, 37–39, 57–61, 64, 162–63, 201 Cohen, G. A., 26–30, 67 Cohen, Joshua, 128–33, 139

238

Index Common good, orientation toward, 129–31, 137, 146, 175–76, 187 Communication: communicative action, 78, 91; communicative freedom, 112; communicative reason, 5, 12, 17, 90, 99–101, 104, 192; and discourse, 78–79, 94, 116–17, 120–21, 171; and law, 5, 85, 109, 146–47, 171, 180, 186, 193–94; and the lifeworld, 173 Communitarianism, 68, 177; and critique of liberalism, 88, 133, 176, 179, 198n6 Comprehensive doctrine, 9; and justification of conceptions of justice, 25–26, 32, 35–36, 43, 46, 50, 75, 84, 125, 150; and overlapping consensus, 39–42, 46; and pluralism, 21; relation to political justice, 23, 26, 32, 50, 153, 164–66, 191 Compromise, see Bargaining Conception of the good, 52, 203n5. See also Free and equal persons Consensus, 20, 30, 42, 45–46, 71–72, 79, 86, 119–20, 128, 145–46, 157, 162, 165, 203n5, 205n28; communicatively achieved v. normatively ascribed, 9 Considered judgments, 48–51, 56–57. See also Reflective equilibrium Constitution of the United States, 158, 208n20, 222n21; 14th Amendment, 158 Constitutional consensus, 128 Constitutionalism: constitutional essentials, 35, 153–63; constitutional history, 37, 52, 111–13, 147, 150, 165, 178; constitutional practice, 111–18, 146, 171–73, 193–94; and democracy, 138, 141, 146, 168, 182–83, 193–94; founding, 117–18; and hard cases, 164–67, 171, 208n20; and judicial review, 163, 170, 220n6. See also System of rights Constitutional contractarianism, 149–68 Constitutional patriotism, 148, 175–81, 221n11

Constructivism, political, 52–59, 62–67; moral foundations of, 72–73; and the original position, 53–57; v. reconstructivism, 82–84, 103; and reflective equilibrium, 53, 56, 191 Container theory, 127, 146–52, 167, 183 Contextualism, 10 Contractualist intuition, 24–26, 84, 143 Co-originality 107–13, 173–74. See also Autonomy: public and private; System of rights Cosmopolitanism, 180 Critical theory, 4–5, 26, 87–89. See also Frankfurt School Daniels, Norman, 64, 203n5 Decisionism, 24 Democracy: and collective identity, 175–76; and constitutionalism, 138, 141, 146, 168, 182–83, 193–94; deliberative democracy, 2, 5, 137–38, 180; and law, 83–85, 110–14; and modus vivendi, 137, 170; moral foundations of, 128–29; and participation, 174, 187–89; radical, 131, 137; and Sittlichkeit, 130–31 Democratic principle, 93–94, 106, 111–20 Deontology, 68–69, 133 Depoliticization, 96. 130. See also Elitism; Technocracy Depth grammar, 64 Descriptivist critique, 26–33, 50–52, 59–60, 70–71, 153–54 Difference principle, 18–19, 26–27, 158– 59. See also Second principle of justice Discourse, 79, 88, 91–97, 189; and proceduralism, 3, 89–90, 139, 145. See also Application discourse; Ethical discourse; Justification discourse; Legal discourse; Moral discourse; Pragmatic discourse Discourse ethics, see Moral discourse Discourse principle (D), 85, 91–95, 104–5, 110–17; justification of, 91–92, 120–22 Derrida, Jacques, 115–16

Dworkin, Ronald, 66–77, 120–21, 153, 220n14; and integrity, 74–75, 155, 172, 208n19; and judicial review, 208n20 Elitism, 130, 189. See also Depoliticization; Technocracy Emancipation, 6, 24, 89, 114, 142 Equality See Free and equal persons; Opportunity, fair equality of Ethical discourse, 95–96, 176, 179–80 Ethical life, 107–8, 127–31 Ethical person, 102, 135 Ethnicity, 175–76 Facticity, see Positivity Family, 96, 110 Feminism, 142 Ferrara, Alesssandro, 202n26 First principle of justice, 18, 27, 53 Formalism, 12, 97, 115–19, 127, 139 Foundationalism, 6–7, 62–63, 104, 110–12, 115, 121; and morality, 66–77, 127–40 Frankfurt School, 4–5, 200–201n13. See also Critical theory Free and equal persons, 18–21, 52, 55–58, 128–32, 190. See also Citizen(s); Modern moral worldview Freedom, 21, 31, 55, 91, 112–14, 135. See also Free and equal persons; Ideals; Political values Freeman, Samuel, 209n23 Freestanding, 17–20, 29, 42, 46–47, 51, 62, 66–84 Fuller, Lon, 137, 214n8 Functionalism, 23, 40, 85–89, 105–11, 120–23, 132–51 Gadamer, Hans-Georg, 102, 211n22 Generalizable interests, 88, 95, 102–3 Geuss, Raymond, 209n3 Good life, 20, 89–90, 188, 218n35 Günther, Klaus, 169–72, 182 Hampshire, Stuart, 78, 128, 209n22 Hampton, Jean, 202n4 Hart, H. L. A., 86, 105, 136–37

Index Hegel, G. W. F., 2, 127–33, 168, 185–86, 197n3, 222n1 Hermeneutics, 101–3, 116, 130 Hobbes, Thomas, 30, 55, 215n13 Honneth, Axel, 89, 218n35 Horkheimer, Max, 5, 200–201n13 Human nature, 28, 137 Human rights, 116, 132–33, 140, 176, 214n11 Hume, David, 65, 69, 136 Ideals: ideal-based theory, 72; ideal speech situation, 19, 191–92; ideal theory, 100, 185–91; idealizations, 64, 126, 137, 186–87, 192 Ideology, 182, 222n2 Impartiality, 2, 54, 83, 91–93, 106, 170 Individualism, 17, 70, 134–35 Instrumental reason, 5, 121. See also Modus vivendi; Strategic rationality Intersubjectivity, 43–47, 115–16, 122 Intuitionism, 29, 68, 72–75, 206n33 Judiciary, 170, 181 Justice: justice as fairness, content of, 70–72; and legitimacy, 86, 159–64; political conception of, 11, 20, 30–32, 42, 63, 70, 125, 149–56, 160–66, 191; two principles of, 38, 49, 53–55, 154, 159 Justification: frameworks of, 18–19, 25–26, 30–32, 82, 85, 103, 131, 145–50; full, 35–36, 46, 50–52; levels of, 35–40, 65; pro tanto, 35, 42, 46, 50; public, 25, 36–37, 40–44, 180–82, 203n5; standpoints for, 35–40, 64–65; and the social contract, 114, 151, 154. See also Impartiality; Intersubjectivity; Justification discourse Justification discourse, 162–63, 169–73 Kant, Immanuel: and autonomy, 12, 17, 22; and categorical imperative, 87, 206n33, 207n1; and critique, 2–6, 24–25; and Hegel, 3, 185–86; and Kingdom of Ends, 147, 192; and law, 105, 113, 151; and moral philosophy,

239

240

Index 86–88, 169; neo-Kantianism, 77, 129; and public reason, 204n14; and the social contract, 30–32, 60, 154 Kennedy, Duncan, 214n10 Klosko, George, 205n28, 205–6n30 Kohlberg, Lawrence, 144 Krasnoff, Larry, 203n5 Laden, Anthony, 37, 59, 156, 202–3n5, 204n18, 206n31 Larmore, Charles, 25–26, 70–76, 208n15 Law: and coercion, 18, 102, 108, 123, 155–57, 194; legal code, 111–14; legal form, 88, 103–26, 133–34, 138, 141–43; legal paradigms, 106, 141–46, 173–75, 182–84; legal person, 102, 113, 143, 173; positive law, 74, 88, 102–13, 134, 143–54, 186, 197; and postmeta­ physical philosophy, 149–53. See also Constitutionalism Learning processes, 41–44, 88, 145 Legal discourse, 95, 105, 171–72 Legal positivism, 86, 102, 133–36 Legal pragmatism, 205 Legal realism, 162 Legislature, 158–65, 170, 186, 189 Legitimacy, 6–9, 18, 59, 88, 106, 110, 123, 176–79, 187–88; and container theories, 127–31, 138–40, 151, 167–68, 193; and lawmaking, 93, 109–18, 145– 46; and morality, 91, 143; principle of liberal legitimacy, 18, 55, 70–72; pure and imperfect procedural, 126, 216n1; and the rule of law, 106, 154–56 Liberal paradigm of law, 106, 174, 182 Liberalism, 17, 37, 44–46, 70, 76, 135; liberal conceptions of justice, 30, 72, 155–56, 160; political liberalism, 21–24, 70–71, 188. See also Liberal paradigm of law Lifeworld, 87–88, 130, 173, 212n25; colonization of, 96; and system, 88 Luhmann, Niklas, 213n37 Lyons, David, 49–51 MacIntyre, Alasdair, 10 Mahoney, Jon, 133

Majoritarianism, 128, 158 Marbury v. Madison, 220n12 Marcuse, Herbert, 189 Markets, 109–10, 173. See also Instrumental reason; Media; Strategic rationality; Systems Marx, Karl, 134 Maus, Ingeborg, 115 Mead, George Herbert, 214n5 Media, money and power, 110 Meritocracy, 56 Metaphysics, 7, 10–11, 25, 80–84, 99, 129, 132, 140, 197n4, 209n1; nonand/or postmetaphysical, 14–15, 20, 24, 30, 84, 99, 115, 119, 129, 143–45, 151–53, 184–86, 193–94. See also Substance; Truth Modern moral worldview, 52–59, 73, 82–83, 155, 190 Modernity, 8–9, 25, 92–93, 120–23, 188 Modus vivendi, 70, 137–38, 170–71, 190 Moral discourse, 86–88, 94–97, 107–8, 141. See also Human rights Moral person, 57, 102. See also Free and equal persons Moral realism, 172, 220n14 Moral theory, 48 Mouffe, Chantal, 215n16 Michelman, Frank, 161–69, 177, 219n8, 222n21 Mill, John Stuart, 17, 22 Mutual understanding, 64, 89–94, 99, 116, 137, 145–46, 192–93 Nationalism, 175 Natural law, 86, 98–99, 131–32, 136, 151–52 Natural rights, 67–69, 76, 113, 117–18, 173 Negative liberty, 142, 173 Norms of action, 91–94, 107–8 Obama, Barack, 188 Objectivity, 53, 206n33 Observational perspective, 36, 48, 64, 111–17 Ontogenesis, 109, 144

Opinion- and will-formation, 86, 117 Opportunity, fair equality of, 19, 27, 157–59 Original position, 19, 35–39, 49, 53–59, 62–63, 68–75, 98, 153–56 Overlapping consensus, 39–51, 59–63, 85, 155–67 Participant perspective, 82–83, 90–96, 111–17, 125–27, 144–45, 185, 189. See also Discourse Person, concept of, see Ethical person; Free and equal persons; Law: legal person; Moral person Peters, Bernhard, 126–31, 216n1 Philosophy: limits of, 2–10, 22, 25, 43–44, 99–101, 104, 202n1; philosophers v. citizens, 77–79, 89–90, 98, 150; tasks of, 20–22, 65–66, 80, 85, 101–2, 155, 194 Piaget, Jean, 144 Planned Parenthood of Southeastern Pennsylvania v. Casey, 201–2n25 Platonism, 25 Pluralism, 9, 37–40, 58–62; fact of reasonable, 11, 20–21, 38, 128, 150; interpretive, 182–84 Political values, 31–36, 131–33 Positivity, 108, 180, 193, 214n7 Posner, Richard, 187–89 Postconventional morality, 107–19, 214n26 Postmetaphysical reason, 84, 99, 111, 115, 143–44, 149–53. See also Metaphysics; Substance Poststructuralism, 99 Practical reason, 8, 57–58, 63, 92–93 Pragmatic discourse, 95–96 Pragmatics, 116, 125–26, 171, 186 Procedural paradigm of law, 141–45, 173–74 Proceduralism, 3, 12–13, 45, 77–80, 83–86, 99–100, 119, 181–82; critique of, 128–33, 138–40, 144. See also Constructivism; Procedural paradigm of law; Substance Property owning democracy, 27

Index Public reason, 18, 27, 30–32, 41–46, 66–67, 155–57, 185 Public sphere, 137–39, 189 Publicity, 156–57, 172–74 Rational acceptability, 91, 139, 151. See also Discourse; Legitimacy Raz, Joseph, 29, 49–51 Realistic utopia, 38 Reason, concept of, see Metaphysics; Postmetaphysical reason; Proceduralism; Reasonable; Substance Reasonable, 9–12, 19–27, 30–31, 34, 45, 59, 63, 73, 78, 127, 148, 181, 184–85, 203n5; and citizens, 40, 45, 52; and comprehensive doctrines, 53, 79, 84, 166; and disagreement, 73–75, 134, 140, 160–61, 168, 183. See also Pluralism; Sense of justice Reciprocity, 17, 31, 70. See also Justification; Social cooperation Recognition, 112, 116, 135 Reflective equilibrium, 35–36, 43, 47–53, 62–64; and justification, 63, 103–4; narrow and wide, 49–50 Religion, 31, 190 Republicanism, 130, 144 Rights, 30–1, 67–72, 95–96, 112–18, 132–44, 168, 181–82. See also First principle of justice; Human rights; Natural rights; System of rights Roe v. Wade, 201–2n25 Rorty, Richard, 10, 22–23, 102, 200n6, 202n1 Rousseau, Jean-Jacques, 31–32, 60, 154, 219n4 Rule of law, 102, 153–55, 182 Scanlon, Timothy, 49, 64, 87–88, 209n2 Schmitt, Carl, 190 Schumpeter, Joseph, 187–89 Second principle of justice, 19, 27, 219n1. See also Difference principle Seel, Martin, 212n25 Self-legislation, 111–12, 170–71 Sense of justice, 21, 55–57

241

242

Index Social contract, 60, 76, 111–14, 151 Social cooperation, 17–22, 28–30, 60– 62, 73–76, 152–53 Solidarity, 137, 175 Stability, 30, 40, 45–46, 203n5 Strategic rationality, 105, 109–10. See also Instrumental reason Substance: and procedure, 56, 77–90, 121–22, 128–33, 139–40, 180–82; and reason, 9–12, 146; substantive principles, 67, 72–73, 89, 99, 104 System of rights, 103, 110–27, 136, 141–46, 150–51, 166–68, 176–82. See also Constitutionalism; Justification: frameworks of Systems, 87, 96, 109–10, 212n32. See also Media Taylor, Charles, 135–36, 143, 205n28, 215n20, 216n6, 217–18n22 Technocracy, 96, 129–30. See also Depoliticization; Elitism Tolerance, 23–24, 188 Traditional societies, 88, 107–9

Truth, 23–29, 63, 75–76; and political liberalism, 20, 159. See also Comprehensive doctrine; Metaphysics Universalism, 2–3, 15–23, 99–101, 168– 69, 175–78 Universalization principle, 93, 105 Utilitarianism, 4–5, 120–22 Validity claims, 78, 84–87 Veil of ignorance, 53–54, 97, 152 Voluntarism, 24. See also Decisionism Voting, 18, 187 Waldron, Jeremy, 11, 162–63, 168–69, 222n24 Weber, Max, 5, 106–10, 187–89 Weithman Paul, 202n4 Welfare state, 141–42, 173–74, 182, 212n32 Well-ordered society, 37–40, 52–54, 158–60 Wellmer, Albrecht, 130–31