(c) Four Paths in Moral Philosophy
4.2. CONSTRUCTIVISM AND PRACTICAL REASON
Against the background of the discussion of Walzer's theory, it may seem that the "contextualist" Walzer and the "universalist" Rawls have exchanged roles: now it is Walzer who argues universalistically, whereas Rawls-if we follow Rorty's interpretation-has restricted his theory as being "political not metaphysical" to "trying to systematize the principles and intuitions typical of American liberals" (Rorty 1 99 1 , 1 8g) . What else can it mean when Rawls remarks that "since justice as fairness is intended as a political con
ception of justice for a democratic society, it tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a consti
tutional democratic regime and the public traditions of their interpreta
tion" ( 1 985, 225)? Can such a culturally and historically anchored argu
ment raise a claim to universality only if it is based on a Hegelian philosophy of history in the form of the thesis that American (or "Western") political culture represents the normative endpoint of political developments?10 What does Rawls's attempt to present a "reasonable" theory of justice mean?
"Reasonable" in an Aristotelian, an Hegelian, or, in spite of all, still a Kan
tian sense?
According to a conventionalist interpretation of Rawls's "political" con
ception, the point critical of communitarianism-discussed in chapter 1-namely, that of distinguishing the conception of "moral person" from that of "ethical person," led to a concession to (differently positioned) com
munitarian criticisms: rebuking the atomism objection would carry the price of relinquishing the theory's universalist, moral claim. Rawls de
fended the original position, as we have seen, by pointing to the fact that it is based on a particular conception of the "moral person" that cannot be criticized for having a problematic view of persons' ethical identity. Rather, it is a second-order concept that abstracts from ethical identities and serves as the foundation for an impartial justification of principles of justice; it presupposes the two moral powers, namely, the capacity for a conception of the good and the capacity for a sense of justice, which are "neutral"
toward particular conceptions of the good. This conception of the moral person, Rawls says, is "latent in common sense" ( 1 g8o, 520) ; it is implied in the notion of the free and equal
citizens
of a democratic society ( cf.1 993a, 1 3) and is to that extent a "political" conception. As such it serves
I 74 UNIVERSALISM AND CONTEXTUALISM
as the foundation for a "political" interpretation of the principles of justice in respect of neutrality toward "reasonable" comprehensive doctrines (see chapter 2) and in respect of the essential viewpoints of social justice (see chapter 3) .
With this "politicization" of the conception of the person, however, Rawls seems to be relativizing its Kantian-moral content and to be relying solely on an understanding of "citizenship" that originates in "our" tradi
tion of liberal-democratic states. It is then just one possible interpretation of this understanding among others. Hasn't it thereby lost its claim to de
fending the
priority
of justice over competing conceptions of what is good"for us"? This question calls for a more detailed look at Rawls's theory, which will show to what extent this contextualist interpretation is inappro
priate.
Conventionalist interpretations of Rawls's political liberalism can assume various forms. According to a political-"pragmatic" understanding, Rawls is concerned primarily with the problem of stability; the overlapping consen
sus does not therefore have any independent moral basis; rather, it is to be understood as the minimal consensus for maintaining social peace. Ac
cording to this view, Rawls exchanges the role of the philosopher for that of the "politician" striving for political consensus (Raz 1 990, 1 o) . Rawls unequivocally rejects this interpretation; he distinguishes between two stages of the theory ( 1 989a) : the stage of the "freestanding" moral justifi
cation of the theory, and the subordinate stage of explaining the possibility of social stability ( cf. 1 993a, 1 33-34) . Nonetheless, says the second con
ventionalist interpretation, the "freestanding" justification could place the conception of moral person at the center of the theory because it reflects
"our" self-understanding as members of a particular political culture (Rorty 1 99 1 ) . This understanding is however incompatible with Rawls's claim to justifY a "reasonable" conception that -unlike conceptions of the good that question the priority of justice (or also unlike alternative, for example, utilitarian, conceptions ofjustice)-puts forward stronger reasons than the reference to "our" practices allows. The criterion of the "reasonable" (in contrast to "unreasonable" comprehensive doctrines) requires a noncon
ventionalist justification: there is only
one
conception of the normatively prioritized reasonable.But, so runs the third interpretation, this justification could ultimately lie in the "fundamental commitment to the liberal political ideal" (Mulhall and Swift 1 992, 1 9 1 ; cf. Giusti 1 994) of a political order "publicly" justified among free and equal citizens-an ideal of liberal citizenship that plays a double role: "it is both what leads Rawls to seek a conception of justice that is publicly justifiable and what he finds when he goes to the public political culture in order to do just that" (Mulhall and Swift 1 992, 1 90) . What forms the normative starting point is not therefore the mere presence of the
UNIVERSALISM AND CONTEXTUALISM 1 75 liberal ideal in a particular political culture but the normative ideal itself
an ideal, nevertheless, that can in turn be justified only as a "comprehen
sive" liberal doctrine of the good (222-26) . Rawls however contradicts this interpretation by emphasizing that his fundamental idea of social cooper
ation and the attendant ideas of free and equal persons and of the well
ordered society (Rawls 1gg3a, 14) are "ideas of practical reason" (go, 1 10) that "cannot be reasonably rejected" in a
moral
sense. Only with this argument can the priority of justice principles over "comprehensive doctrines"
be defended and a "reasonable" limit be set to these doctrines-a limit that cannot itself originate in such a doctrine.
The theory of justice can thus assert the validity of its principles only in the sense of a "freestanding" and "moral" (not "ethical") conception ( 1 1 ) . It retains its
deontological
character, which Rawls ( 1g7 1 , 30) distinguishes through the priority of the right, only if it rests on practical reason; and a"political" conception, of all conceptions, cannot do without this. For that reason, the conception of 'justice as fairness" begins not with contingent
"shared understandings" because they
are
contained in a particular political culture, but with conceptions of person and social cooperation thatmust be
contained in such a culture-and indeednecessarily
so ifthe culture raises the claim to being ademocratic
one that rests on a shareable, reasonable foundation. Without these conceptions of practical reason there is no democratic, legitimate society. They are inherent in the fundamental principle of public justification: a just and publicly justified basic structure of soci
ety-a structure that expresses citizens' "shared and public political reason"
( 1gg3a, g)-must rest on these conceptions since they themselves are part of the idea of public reason. "Let us say, then, that the conceptions of society and person, and the public role of principles of justice, are ideas of practical reason" ( 1 1 o) .
That the theory of justice as fairness "starts" ( 1 4) with certain funda
mental ideas of a democratic political culture is therefore justified in the
"philosophical background of political liberalism in practical reason" (xiv) , not in a more or less conventionalist alignment of the theory. That we can reconstruct the right from familiar conceptions does not mean that it is right because it corresponds to "our" familiar conceptions. Rawls makes it clear that the ideas and principles encountered in a democratic political culture are contradictory and must therefore be ordered on the basis of fundamental "abstract" moral concepts (g); here he underscores the role of political philosophy: ''We turn to political philosophy when our shared political understandings, as Walzer might say, break down, and equally when we are torn within ourselves" (44) .
This Kantian interpretation of the new shape of Rawls's theory refers to the outcome of a process whose examination is worthwhile since we can locate there the points at which this interpretation uncovers a disharmony
r76 UNIVERSALISM AND CONTEXTUALISM
in Rawls's theory with other components of his conception-with, for ex
ample, the political-"substantive" loading of the conception of moral per
son in regard to the theory of primary goods, or with a certain (at least terminological) political-"nonmetaphysical" relativization of the theory in respect of the "truth" of comprehensive doctrines. Between these two un
derstandings of the "political" and a third one, the political-"moral" sense of the priority of justice, Rawls's model exhibits a heterogeneity that an
"autonomous" (g8) theory must avoid. Ultimately, only a (similarly "non
metaphysical") Kantian interpretation of the theory that clearly distin
guishes between moral norms and ethical "doctrines" (but nonetheless takes into account the difference to Kant's "moral constructivism" empha
sized by Rawls) can maintain this claim to autonomy; and such an inter
pretation goes beyond Rawls at decisive points.
To demonstrate this move in what follows, the basic assumptions of a deontological theory of justice will first be extrapolated (a) ; second, Rawls's justification models in
A Theory of Justice
and their alteration in the Dewey lectures will be discussed (b) ; in order, third, to examine his now reformulated theory of constructivism (c) . On the basis of an immanent critique of Rawlsian theory, finally, a proposal will be made to interpret the theory of "political" constructivism in the direction of the universalist-contextualist theory that was formulated in connection with Walzer and that will be ex
plicated with the help of discourse-theoretic assumptions (d) .