Rawls and Kantian Constructivism Alexander Kaufman Associate Professor Department of Political Science School of Public and International Affairs University of Georgia [email protected] Rawls and Kantian Constructivism Alexander Kaufman Department of Political Science School of Public and International Affairs, University of Georgia John Rawls’s account of Kantian constructivism is perhaps his most striking contribution to ethics. The notion of constructivism developed in this account has, in fact, been described as a new possibility in ethical and political theory (see Krasnoff 1999:85) because it employs anti-realist resources to address concerns raised by moral sceptics and pluralist critics of liberalism. A constructivist approach holds that moral propositions are right or justified when they are consistent with acceptable moral principles, and moral principles are acceptable when they are the product of an appropriately designed decision procedure. A Kantian form of moral constructivism, in Rawls’s account, is distinguished by the central role that such a theory assigns to a decision procedure that constitutes a procedural interpretation of Kant's ideas regarding moral reasoning and autonomy. The role assigned to such a procedure, Rawls argues, reflects Kant’s view that the substance of morality is fixed neither by an independently existing order of values nor by special features of human psychology. Rather, that substance is best understood as constructed by free and equal people under fair conditions. This constructivist interpretation of Kant’s moral thought has had a decisive influence on Kant scholarship in the Anglo-American tradition. Although many scholars in the continental tradition continue to view Kant as a rational intuitionist, even ‘a covert moral realist’ (O’Neill 2003: 54), Kant is firmly established among Anglo-American commentators as an anti-realist and even a formalist moral thinker. The constructivist representation of moral judgements formed in the context of a concretely described decision procedure and informed by a general knowledge of facts about human society has led to the perception among many commentators that Rawls’s constructivism is grounded in specific factual information or in principles or values that are not principles or values of justice (see Cohen 2008: 278-86). Thus, G. A. Cohen claims Rawls’s constructivism is ‘fact-infested’ (Cohen 2008: 287) and, in addition, grounds its judgements in strategic and other considerations that are irrelevant to justice (Cohen 2008: 280), while Aaron James asserts that Rawls assumes that constructivist moral judgement is authoritative only when ‘grounded in independent judgments about what kind of social practices exist and what kinds of agents participate in them’ (James 2005: 282). Both of these views, however, misrepresent the character of Rawls’s account. Cohen and James, like many other commentators on Rawls’s work, seem to assume that a moral judgement in Rawls’s account ‘either articulates a description of some fact or is a disguised version of some alternative use of language’ (Korsgaard 2008: 309). Thus, the confusion in both arguments derives from a failure to take seriously the centrality in Rawls’s account of the Kantian intuition that moral judgements are grounded neither in facts nor in independent and preexisting norms or principles, but rather in a process of reasoning. In examining this strand of Rawls’s work, it is important to distinguish Kantian constructivism from the substantive accounts of justice that Rawls develops in A Theory of Justice and Political Liberalism. While Rawls’s constructivism works from many of the same assumptions that ground his substantive political theory, Kantian constructivism provides an account of the structure of moral reasoning that is independent of both justice as fairness and political liberalism. Rather than providing or supplementing an account of a substantive moral or political conception, Kantian constructivism develops an approach to assessing the reasonableness of moral judgements that can be employed to evaluate substantive moral conceptions. It is equally important to distinguish Kantian constructivism from Rawls’s account of political constructivism. Although political constructivism constitutes the view that is most relevant to the final version of Rawls’s theory of political justice, Kantian constructivism represents a distinct strand of Rawls’s thought with significance independent of its relation to Rawls’s theories of justice as fairness and political liberalism. In particular, Kantian constructivism (i) develops a distinctly Kantian approach to justification in ethics; (ii) applies to a wide range of moral questions rather than being limited to issues relating political and social institutions; and (iii) has achieved a broad influence among contemporary moral philosophers (see James 2007; Hill 2002; Scanlon 1998; Korsgaard 1996). In this paper, I will examine the relation between Rawls’s constructivism and its foundation in Kantian intuitions. In particular, I will focus on the progressive influence on Rawls’s approach of the Kantian intuition that the substance of morality is best understood as constructed by free and equal people under fair conditions and is not determined by appeals to the authority of a preexisting and independent order of values. Rawls’s focus on this Kantian intuition, I will argue, motivates the focus on social contract that grounds both his accounts of the original position and of reflective equilibrium. In section one, I will briefly sketch Rawls’s general approach to moral justification and the status of constructivism within that approach. In section two, I will examine the progressive influence of Kantian intuitions on Rawls’s political thought and account of constructivism, both in his development of ideas from social contract doctrine and in his extension of ideas from ‘Outline of a Decision Procedure for Ethics’. In section three, I will discuss and reject arguments in the current constructivist literature that locate the authority of Rawls’s constructivism in facts or in non-moral values or elements of existing practices. In section four, I will examine leading objections to Rawls’s constructivist interpretation of Kant. Finally, I will conclude by discussing (i) the status of Kantian constructivism within Rawls’s approach to moral justification and (ii) its relation to political liberalism. 1. Moral Justification. While constructivism constitutes a salient component of Rawls’s account of moral justification, it nevertheless represents a subordinate strand of that account. Rawls’s most general standard of moral and political justification requires that a moral proposition is justified if and only if it matches the considered judgements of a reasonable and rational person on due reflection in reflective equilibrium. In due reflection, the person reasons from premises that are (i) ‘widely shared but weak’ (Rawls [1971] 1999: 16) and (ii) judged to be reliable when viewed from ‘conditions favorable for deliberation and judgment in general’ (Rawls [1971] 1999: 42). Premises that satisfy this standard constitute considered judgements ‘in which our own moral capacities are most likely to be displayed without distortion” (Rawls [1971] 1999: 42). During due reflection, the person “attempts to organize the basic ideas and principles implicit” in his or her considered judgements into a coherent moral or political view (Rawls [1993] 1996: 8) and aims to reach a state of reflective equilibrium in which his or her “general convictions, first principles, and particular judgements are...in line” (Rawls [1993] 1996: 384, n. 16). Rawls’s account of due reflection in fact extends his earlier efforts—efforts that reflect a number of non-Kantian influences—to describe criteria for evaluating the validity of proposed moral and political judgements. According to the arguments developed in ‘Outline of a Decision Theory for Ethics’, a moral judgement is valid if and only if it would be accepted by competent moral judges, and a principle is valid if and only if it shows ‘a capacity to hold its own’ (Rawls 1951: 11) against a subclass of relevant considered judgements. This account of the validity of moral judgements, in its attempt to apply ‘the relevant requirements of practical reason’ (Rawls [1993] 1996: 90) to determine which moral judgements best satisfy the criteria of a rational method of ethics, reflects the influence of Henry Sidgwick’s The Methods of Ethics. Rawls’s assumption, in ‘Two Concepts of Rules’, that reflection about questions of justice must identify principles that apply primarily to basic institutions reflects the influence of David Hume’s Treatise of Human Nature and of Ludwig Wittgenstein’s idea of a social practice.i Rawls’s reflections regarding the nature of valid moral and political judgements lead him to conclude that such judgements are properly viewed as conclusions derived through the operations of an acceptable deliberative procedure. In developing this view, Rawls is increasingly drawn to the intuition—which he attributes to Kant—that moral reasoning is ‘part of the general theory of rational choice’ii applied to the problem of securing reasonable and mutually justifiable social relations. Once Rawls has reached this conclusion, the idea of social contract—in particular, Kant’s account of social contract—plays an increasingly central role in Rawls’s account of justification in ethics. 2. The Kantian Influence. While the influence of Kant is not evident in Rawls’s earliest published work (see Rawls 1951; Rawls 1955), Rawls begins to refer to the central importance of Kant’s thought in ‘Justice as Fairness’, and discussions of the central significance of Kant’s thought are increasingly salient in Rawls’s work between 1958 and 1980. Rawls is careful, however, to emphasize that his work does not attempt to offer exegesis of Kant’s views. Rather, it develops Kantian themes in manner that makes Rawls’s work ‘closer to [Kant’s] view than to the other traditional moral conceptions that are appropriate for use as benchmarks of comparison’ (Rawls 1980: 305). Rawls’s working out of Kantian themes increasingly affects both his account of justification in ethics and his development of his substantive account of justice during the period between the publication of ‘Justice as Fairness’ and ‘Kantian Constructivism in Moral Theory’. Most fundamentally, Rawls is influenced by Kant’s view that a moral action derives its worth from the principle of volition that motivates the action rather than from any particular end attained.iii In the first part of the Groundwork, Kant argues that ‘an action from duty has its moral worth not in the purpose to be attained by it…but merely [in] the principle of volition in accordance with which the action is done’ (Kant, 1996: 55; G 4.400).iv In this and similar passages, Kant argues that moral reasoning is characterized not by the pursuit of certain ends or goals, but by the reason for action contained in the underlying principle of volition. The analysis of moral judgement, for Kant, becomes an analysis of non-instrumental principles of volition and arguments constructed from those principles. If the nature of the reason grounding an act determines its moral quality, then the moral quality of an act can be assessed by determining whether reasonable persons under suitable conditions would have sufficient reasons to consent to the act. Kantian intuitions thus lead Rawls to focus his moral analysis around the notion of rational consent as developed in Kant’s theory of social contract. Social contract, Rawls notes in ‘Justice as Fairness’, ‘does express, suitably interpreted, an essential part of the concept of justice’ (Rawls 1958: 71). An examination of the evolution of Kant’s progressive influence on Rawls in fact suggests that Rawls’s constructivism evolves directly from his interpretation of Kant’s theory of social contract and not from an interpretation of the categorical imperative procedure. In addition, Rawls’s extension of the Kantian social contract argument provides a basis for the extension of the non-Kantian strand of Rawls’s account of justification in ethics developed in ‘Outline of a Decision Procedure for Ethics’. Finally, the notion of a social contract doctrine as a form of rational choice theory suggests to Rawls the idea of employing a hypothetical social contract model as a procedure that specifies the relation between a particular conception of the person and a conception of justice. Constructivism and Social Contract. Rawls first notes the significance of Kant’s theory of social contract for his approach in ‘Justice as Fairness’, where he suggests that ‘Kant was not far from wrong when he interpreted the original contract merely as an idea of reason’ (Rawls 1958: 71). While legal and political obligation do not literally originate in any form of original agreement, social contract constitutes ‘an ethical idea applicable to social arrangements irrespective of the question of origins’ (Rawls 1971: 223). Just as ideas of reason generally secure the greatest unity and extension for the concepts of the understanding, the idea of social contract can be employed ‘to clarify the concept of justice’ by representing its general unifying ground (Rawls 1958: 59). This view of justice as grounded in the notion of social contract, in fact, follows naturally from Rawls’s view that the question of justice ‘arises once the concept of morality is imposed upon mutually self-interested agents, similarly circumstanced’ (Rawls 1958: 59). If justice is a conception that self-interested agents create to regulate their joint interactions, then the metaphor of a contract seems appropriate to represent the kind of jointly acceptable standard for behaviour that is required. In presenting the idea of social contract as a general unifying ground for the concept of justice, Rawls follows Kant’s view that the idea of an ‘original contract’ —by which a people ‘unites into a society’ by ‘establishing a civil constitution’ (Kant, 1996: 290; TP 8: 289) through the exercise of the ‘general (united) will of the people’ (Kant, 1996: 295; TP 8.295)—constitutes ‘the touchstone of any public law’s conformity with right’ (Kant, 1996: 297; TP 8. 297). Rawls also follows Kant in viewing the idea of social contract as uniquely well-suited for this role because it expresses the fundamental idea that is essential to judgments of justice—the idea of fairness (Rawls 1958: 47). As Kant notes, public laws generated by the general will of the people must be ‘incapable of doing wrong to anyone’, since ‘all decide about all, hence each about himself’ (Kant, 1996: 295; TP 8.295). It is this aspect of the concept of justice. Rawls argues, that is neglected by utilitarian theory—utilitarianism improperly applies ‘the principle of choice for one man’ to society (Rawls 1967: 132). Social contract theory, Rawls argues, therefore comes closer than utilitarian theory to expressing an essential part of the concept of justice (Rawls 1958: 71). Once principles of justice are viewed as the product of joint agreement, the construction of a conception of justice requires precise accounts of (i) fair conditions for agreement and (ii) genuine, free, and informed consent. Rawls presents definitive accounts of both of these elements of his theory in A Theory of Justice, and commentators have generally assumed that Rawls models the decision procedure that incorporates these elements—the original position—directly upon the categorical imperative procedure. An examination of the development of the Kantian theme of social contract in Rawls’s early articles, however, contradicts this standard view. Rawls develops his constructivist